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1. A 75-year-old woman made a will on 25 September 2020 (Last Will). She did so at her solicitors’ office (Law Firm A), having given instructions to two solicitors there shortly before executing the document. That was the day after an interim family violence order was made against her second husband (the defendant), following a dispute where police had been called by one of the woman’s daughters to conduct a welfare check. In her Last Will, the woman made no provision for the defendant. At the time she gave instructions to her two solicitors (Solicitor A and Solicitor B), the woman was frail, in a wheelchair and breathed with the assistance of an oxygen tank. Unbeknownst to the solicitors who took the instructions from the woman about the making of her will, a psychiatrist had reported that the woman’s cognition was severely impaired a month before the Last Will was made. One of the woman’s daughters took her to the appointment with the solicitors and was present for the initial part of the conference where instructions were given. Changes were made to the Last Will on the day it was executed which benefited that daughter.

2. The woman making the Last Will was the late Kathleen Mary Champion (the deceased), who died on 16 May 2022, aged 77, while still separated from her second husband and pursuing proceedings in the Family Court. The daughter involved is the plaintiff. She is the named executor in the Last Will. She propounds the Last Will in seeking a grant of probate.

3. The parties are in court because the defendant has opposed the Last Will being admitted to probate on the basis of a lack of testamentary capacity and lack of knowledge and approval of it at the time it was made. For reasons now explained, I have found that although the deceased had a degree of cognitive impairment, she retained testamentary capacity at the relevant time, had knowledge of the contents of the Last Will and that she approved it by expressly agreeing to each clause and then freely signing the document. Accordingly, the Last Will should be admitted to probate.

The family members involved in the proceeding and the family business

4. The deceased was separated from her first husband in 1978 and he died in 2015. She commenced a relationship with the defendant in 1982 and married the defendant in 1989. In addition to the defendant, the deceased was survived by: (a) Four children from her first marriage, being: (i) Paul Charles Leslie; (ii) Mark James Leslie; (iii) Yvette Mary Leslie (the plaintiff); and (iv) Simone Louise Leslie. (b) Two children from her marriage to the defendant, being; (i) Sharon Winifred Champion; and (ii) Neil Benjamin Champion (known as Jimmy).

5. To avoid confusion, references to the children (all of whom are adults) will use their first names without any intended disrespect, and further, Neil will be referred to as Jimmy to distinguish him from the defendant in the reasons.

6. One thing that it is important to know about the family dynamics here is that there was a highly profitable family business. One of the drivers of the present dispute was about what the Last Will did in terms of effecting a change of future control of the family business away from the defendant and his son Jimmy to sharing that control with the plaintiff. The family business arrangements are part of the evidence as a whole that feeds into an assessment of the deceased’s capacity and the extent of her knowledge and approval of the Last Will.

7. By way of a potted history, the deceased was an accountant. She had an accounting practice from 1979 and had started a company in 1981, Mary Leslie Pty Ltd, which was trustee for the Leslie Family Trust (the Trust). That company (as trustee of the Trust) operated a service management entity for the accounting practice, in that it paid and employed accounting staff. The defendant first became employed by Mary Leslie Pty Ltd and provided accounting services to the deceased’s accounting practice. The settlor of the Trust was the defendant (that is, he was not a beneficiary under the Trust).

8. The deceased’s father had established a typewriter and office equipment business in Victoria in the 1960s known as Amalgamated Business Machines, or ABM for short (the family business). At some stage between the 1960s and 1980s, the family business became held as a part of the Trust.

9. In 1983, the family business extended to Canberra when the business won a government contract to repair typewriters. The deceased took over the family business, which subsequently evolved and grew as technology developed. Mary Leslie Pty Ltd changed its name twice over the years, landing on ABM Electronic Engineering (Aust) Pty Ltd (ABM or the trustee company). The functions of ABM were: (a) To hold trust assets of the Trust; (b) To operate as the service entity for the accounting practice; and (c) To own and operate the family business.

10. The defendant became a partner in the accounting practice around 1989, when he and the deceased married. The name of the accounting practice was changed to McLean Leslie & Champion (MLC). In 2008, a 33% share of the MLC partnership was transferred to the plaintiff, who in 1990 had also become an accountant. The plaintiff had worked for the family business after school and during university, and after graduating on at least a part time basis since 1993.

11. Meanwhile, in 2006, Jimmy started working at the family business. He primarily worked on the Service Desk, becoming Service Desk Manager from 2012. He also worked at the accounting practice in 2011 when the family business did not have much work.

12. In 2017, the defendant and deceased decided to sell or gift their 66% share of the MLC accounting business to the plaintiff (with that transfer completed on 1 July 2018). A separate unit trust (MLC Unit Trust) held the MLC business and the plaintiff controlled the MLC Unit Trust. The plaintiff did not ultimately pay a purchase price for the business, but she was required to take over all of the debts of the business. Following the sale of the accounting business, the deceased continued to spend time working in both the family business and the accounting practice.

13. From around September 2019, a schism developed in the family surrounding the family business, the different entitlements of the defendant and the deceased’s children to the family business, and how the family business should be managed and controlled. It was the primary source of income for the family. At this stage, the deceased had ostensible control of the business due to her 105 shareholding (out of 200 shares). However, the operational control was manifestly in the hands of the defendant and Jimmy from at least December 2019. Five of those 105 shares were transferred to the defendant on 10 January 2020. There was some concern about the circumstances in which those shares were transferred, which is discussed below.

The deceased was a frequent will-maker

14. The deceased made a total of eight wills, six of them having been made in the three years leading up to her death. The wills are as follows: (a) 2004 Will: Dated 24 December 2004, made without legal assistance; (b) 2018 Will: Dated 27 July 2018, made without legal assistance; (c) January 2019 Will: Dated 25 January 2019, prepared by a different solicitor, Mr Ronald Clapham; (d) March 2019 Will: Dated 1 March 2019, prepared by Mr Clapham; (e) December 2019 Will: Dated 11 December 2019, prepared by Law Firm A; (f) March 2020 Will: Dated 19 March 2020, made without legal assistance but witnessed by a different solicitor, from a different law firm (Law Firm B); (g) August 2020 Will: Dated 12 August 2020, made without legal assistance; and (h) Last Will: prepared by Law Firm A.

15. By counterclaim the defendant propounded the 2018 Will, or, if the court was not satisfied that was a valid testamentary instrument, the 2004 Will. It was common ground between the parties that both those wills were valid testamentary instruments of the deceased, but the plaintiff contended they were each revoked by later wills. If the Last Will is not a valid testamentary instrument, the plaintiff propounded the December 2019 Will (prepared by Law Firm A) or the March 2019 Will.

Issues for determination

16. The overarching issue is whether the Last Will is a valid testamentary document. That requires determination of whether: (a) The deceased had testamentary capacity on 25 September 2020; and (b) The deceased knew and approved of the Last Will.

17. If either or both of the above are not established, then there are cascading issues in respect of the alternative wills propounded by the parties: (a) December 2019 Will: (i) Did the deceased have testamentary capacity? (ii) Did the deceased know, and approve of the will? (b) If the answer to either or both of (i) and (ii) above is no, then in respect of the March 2019 Will: (i) Did the deceased have testamentary capacity? (ii) Did the deceased know, and approve of the will? (c) If none of the above three wills are valid, then the issue becomes whether probate should be granted in respect of: (i) The 2018 Will; or (ii) The 2004 Will.

18. There was also an evidentiary issue and a breach of confidentiality issue concerning the admissibility of an email dated 20 February 2020, known as MFI 5, which I indicated to parties I would address as part of the substantive reasons. It is covered at the end of these reasons.

The deceased had testamentary capacity as at 25 September 2020

19. I have determined that the deceased had testamentary capacity at the time she executed the Last Will (being the same day she gave instructions), notwithstanding that there may have been developing cognitive decline or other underlying mental issues identified at other times.

20. I will explain that conclusion by setting out the approach and the applicable legal principles, the key parts of the evidence, and how the factual matrix fed into what occurred on 25 September 2020. The approach taken to assessing testamentary capacity

21. The starting point is that a duly executed will which is rational on its face is presumed to have been made by a person of competent understanding and is itself prima facie evidence of the same: Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [45]; Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706. Indeed, a properly executed will is prima facie evidence of testamentary capacity: Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343.

22. The approach the court must take to the evidence was explained in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 at 180: The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.

23. If the evidence raises a doubt as to capacity (or knowledge and approval, discussed separately below), including by way of suspicious circumstances, the presumption is displaced. The propounder of the will must then satisfy the court that the testator was of “sound disposing mind”: Tobin at [45] and the cases there-cited.

24. The task was explained in Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453 as follows: The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt alone is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

25. The authorities at times use the description of “suspicious circumstances”. The term includes circumstances of dishonesty or moral turpitude. However, it should be made clear that the consideration is broader, in that it is simply whether the circumstances raise doubt about a testator’s capacity.

26. In circumstances of doubt, affirmative satisfaction of testamentary capacity is required: Bull at 343. It will suffice to satisfy the court that it is a reasonable inference from the facts that a delusion or mental illness proved to exist did not affect the disposition in question: Bull at 299.

27. Incapacity will only be established 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 their property: Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570-572; Worth at 452-453.

Onus (and its evolution or lessening significance in hearings without juries)

28. It has been said that where there is a duly executed will that is rational on its face (i.e. a prima facie case), the party seeking to impeach the will bears the evidential burden of proving that the testator did not have testamentary capacity: Bailey at 570.

29. If the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the propounder of the will the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time: Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 289; Worth at 453.

30. Similarly, if it has been shown the testator suffered from delusions, the onus is on the propounder of the will to prove the delusions were not in existence at the relevant time, or alternatively, that they did not affect the will: Watson v Kerridge (1888) 9 NSWLR (Eq) 35 at 46; Bull at 342.

31. However, formal adherence to this approach is increasingly unnecessary, because of how probate matters are now generally conducted. This was explained in Lim v Lim [2023] NSWCA 84 at [13]-[14]: 13. Although it is not necessary to resolve the issue here, there is reason to doubt the utility now of the language of presumptions, shifting burdens, and suspicious circumstances. Writing extrajudicially, Justice Lindsay has observed: Although conventional, this style of language does not sit comfortably with the way a modern probate suit is heard by a judge sitting alone, without a jury, receiving almost all the evidence on both sides of a question by affidavits, upon which deponents are selectively cross examined. In the modern form of “judge alone (case managed) trial” it is generally artificial, at least at a final hearing, to analyse a case in terms of a “prima facie case” or dispositive “presumptions”. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence. [G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018, at [45]] 14. With specific reference to testamentary capacity, in Carr v Homersham, at [47], Basten JA explained: To speak of there being a “doubt” as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, “a grave matter.” A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity. The standard of proof required

32. The requirement to be affirmatively satisfied as to testamentary capacity and knowledge and approval is not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: Worth at 453, where it was stated: The effect of a doubt initial is to require a vigilant examination of the whole of the evidence which the parties placed before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.

33. Such statements draw attention to the cogency of the evidence required and, following Tobin at [48], the seriousness of whether a document is indeed a person’s last will means that any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 and s 140(2) of the Evidence Act 2011 (ACT).

What does it mean to say that someone has testamentary capacity?

34. Testamentary capacity is directed to the basic capacity to understand, to remember, to reflect and to reason. In succession jargon, the slogan of “sound mind, memory and understanding” (see for example, Re Estate of Griffith at 290) is directed to capturing the heart of a person’s capacity to make a will.

35. The legal principles are well established and were traversed in this jurisdiction recently in Pastrello v Saeedi (No 2) [2026] ACTCA 10 at [52]-[60] (dealing specifically with the assessment of cognitive decline and what is required in terms of an understanding of assets). What is set out below draws from the authorities in Pastrello as well as from those drawn to the court’s attention by the parties in their submissions.

36. Applying the well-established formulation in Banks v Goodfellow (1870) LR 5 QB 549 at 565, testamentary capacity involves three things: (a) The capacity to understand the nature of the act of making a will and its effects; (b) The capacity to understand, at least in general terms, the extent of the property the subject of the will; and (c) The capacity to comprehend moral claims of potential beneficiaries of the testator’s estate.

37. This was affirmed in Timbury v Coffee [1941] HCA 22; 66 CLR 277 to similar effect, where Dixon J, quoting Hood J in In the Will of Wilson (1897) 23 VLR 197 at 199, stated at 283: Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular and ordinary manner.

38. Doubt was cast on the utility of adhering to the language used in Banks “as if that were a legislative text” in Mekhail v Hana [2019] NSWCA 197 at [164]. Nevertheless, as the plaintiff submitted, the rule in Banks does provide a useful taxonomy which was reformulated in Lim at [7]-[9], being: (a) The capacity to understand the nature of the act of making a will and its effects; (b) The capacity to understand the extent of the property the subject of the will; (c) The capacity to comprehend moral claims of potential beneficiaries; and (d) The absence of mental disorders or delusions which affect the testator’s “mental faculties [so as] to make them unequal to the task of disposing of [their] property” (quoting Bailey at 571 –572 per Isaacs J). Satisfaction of testamentary capacity is a legal question

39. Although the elements speak about “capacity” or ability, the Banks v Goodfellow test poses a legal, rather than a medical question: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]. Medical evidence directed to any of the requirements set out in the test may be highly relevant but will not necessarily be determinative. The question of capacity is determined by “commonsense judicial judgment on the basis of the whole of the evidence”: Zorbas per Hodgson JA at [65].

40. The importance of lay observers, and in particular solicitors who took instructions from the deceased in drafting her will, was set out by Young JA in Zorbas at [89]-[91]: 89. In a probate suit, the vital evidence is very often not given by medical experts, but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes. 90. Furthermore, it is not true to say that the evidence of lay people as to another person’s condition of health is valueless. 91. If a matter is of common occurrence and people in their ordinary life are accustomed to make assessments of that fact, then they are able to give evidence of it. Thus, a witness can be asked whether a person is sober or not. In R v Whitby (1957) 74 WN (NSW) 441 at 443, the NSW Court of Criminal Appeal, consisting of K W Street CJ, Owen J and Roper CJ in Eq, followed a decision of R v German (1947) 89 Can CC 90 at 98, that: There are a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has personal knowledge. Such matters as the identity of individuals, the apparent age of a person, the speed of a vehicle are among the matters upon which witnesses have been allowed to express an opinion, notwithstanding that they have no special qualifications, other than the fact that they have personal knowledge of the subject-matter, to enable them to form an opinion. Doubtless there are many other matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion.

41. That is not to suggest that medical expert evidence is not important, but to explain why the opinion of a lawyer with experience in the area, and an ability to observe the deceased at the time the instructions and execution of the will are occurring, may be given considerable weight.

42. Accordingly, the involvement of an independent solicitor may be significant. However, any “view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and ... the terms of the will may themselves suggest that the solicitor’s assessment was not soundly based”: Veall v Veall [2015] VSCA 60; 46 VR 123 at [210] and the authority there-cited.

43. In Veall, reference was also made at [192] to solicitors who prepare wills as coming under “professional duties to exercise proper care and attention.” Santamaria JA (with whom Beach and Kyrou JJA agreed) stated there that if practicable, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who takes steps to be satisfied as to the capacity and understanding of the testator and makes a record of any such examination and findings. The solicitor should also ensure: (a) The will is prepared by an experienced and independent solicitor following a meeting with the testator; and (b) The will is read through and explained to the testator, with the solicitor taking the time to form a view that the testator is capable of understanding the will, the terms of which are not, on their face, inexplicable or irrational.

44. The importance of the solicitor’s role in taking the elementary precautions to protect the integrity of a will in terms of proof of testamentary capacity was emphasised in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 where Kunc J made a number of observations in an attempt to assist the profession at [106]-[108]: 106. Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance. 107. It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue: (1) The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary. (2) A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases. (3) In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note. (4) In case of anyone: (a) over 70; (b) being cared for by someone; (c) who resides in a nursing home or similar facility; or (d) about whom for any other reason the solicitor might have concern about capacity, the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries. (5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided. 108. I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.

45. Consistent with Kunc J’s own emphasis in that last paragraph, these observations of basic precautions are not to be elevated into requirements that must be met before there will be sufficient evidence to affirmatively satisfy a court of testamentary capacity, but adherence to them may well foreclose disputes of the kind that has arisen in the present case. I have set out the recommendations made by Kunc J as I respectfully agree with them, and they are consistent with the precautions that were articulated in Veall. Where it is evident that a will may be controversial and a solicitor has not taken elementary precautions, the court will have to look elsewhere if it is asked to determine capacity and knowledge and approval: Veall at [192].

Element (a): Capacity to understand the nature and effect of making a will

46. This requires that the testator has the capacity to understand generally what they are doing in making a will – what a will is and what it does. The testator must have the capacity to understand that a will has the final effect of disposing the estate upon the testator’s death. In other words, they must be able to distinguish the formality of the act they are performing from other acts, such as merely writing down their thoughts on a scrap bit of paper or drafting instructions for a lawyer.

Element (b): Capacity to understand the property that will form the estate

47. The testator must have an ability to recall at least in general terms the nature, extent and value of the estate, without necessarily having precise “knowledge of each particular asset or knowledge of the value of that asset”: Kerr v Bardan [2004] NSWSC 735 at [49]; d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333 at [104]-[105]; Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 at 276 per Knight Bruce V-C.

48. No high level of precision is required to be demonstrated in relation to the testator’s knowledge of her property as at the date of execution of the will: Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 at [8] citing d’Apice at [105], where it was stated that the testator may make errors about the precise details of their assets, such as omitting a particular asset from their description, but still be considered to understand their property.

49. In Pastrello at [58], the court made that point specifically with regard to older people, adopting a passage from Kerr, where Windeyer J said at [49]: Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. Element (c): Capacity to weigh competing claims

50. The testator must be “able to call to mind the persons who may have claims” on the estate and be “able to weigh the relative claims of those persons”: King v Hudson [2009] NSWSC 1013 at [58]. As stated by Hannen J in Boughton v Knight (1873) LR 3 P&D 64 at 66, the requirement is that of a “sound mind”. The court is not to impose its view of the righteousness of the deceased’s reasons for making decisions it may deem unjust, nor is it necessary for the deceased to bring a “perfectly balanced mind” to the task: [The words “sound mind”] do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. We do not sit here to correct injustice in that respect. Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will.

51. The court considers whether the testatrix was at the relevant time capable of recollecting who her relations were (or others with a moral claim), of understanding their respective claims upon her regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of her property: Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 at 120.

52. The question is not whether a deceased’s choices were improper or unjust, but whether they (together with other evidence) demonstrated a lack of capacity to recognise moral claims and, if more than one, weigh them and choose between them: Carr at [9], [12], referring to Harwood at 120.

Element (d): Absence of compromise of mental faculties rendering the testator unable to dispose of her property

53. Following on from that ability to sufficiently weigh competing claims, the court must be astute to distinguish a lack of testamentary capacity from mere disagreement by beneficiaries with the way the deceased has distributed their estate. Mere antipathy, albeit unreasonable, towards one who has a claim is to be distinguished from a disorder of the mind, and great care should be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion: Re Estate of Griffith at 290- 291 per Gleeson CJ, with whom Handley JA agreed.

Delusions

54. The term “insane delusion” has been described as a fixed and incorrigible false belief, out of which the testator cannot be reasoned: Bull at 339; Worth at 449. A similar description of a delusion is that it is something that is not capable of rational explanation or amenable to reason, and not explicable by reference to the subject person’s education or culture: Re Estate of Hodges at 706 and the cases there-cited. A delusion may involve a value judgment where the judgment is so extreme as to defy credibility: Re Estate of Griffith at 291. However, it is the lack of ability to reason that is important – a mere false or mistaken belief is not, by itself, sufficient to warrant a conclusion that a testator lacked testamentary capacity: Carr at [14], [113].

55. Macfarlan JA in Carr at [113] further went on to state that: For a mistaken belief to rise to the level of a “delusion” which affects the validity of the will, there must at least be a high degree of irrationality in the belief and ordinarily evidence will be required that there has been an attempt to reason the deceased out of the belief, such that the deceased’s adherence to it suggests that the deceased has a mental disorder or deficiency precluding the deceased from comprehending and appreciating “the claims to which he [or she] ought to give effect” (Banks v Goodfellow at 565).

56. Even if the court finds that the testator acted under an insane delusion, this does not automatically preclude a finding of testamentary capacity if the delusion had no effect upon the will: Carr at [102] per Macfarlan JA (with whom Leeming JA agreed), noting that in that case, this was viewed as an integral part of the capacity to understand and assess relevant claims on bounty, which later developed into the fourth limb in Lim. Illness and elderly testators in cognitive decline

57. Testamentary incapacity may be established by a mental disorder which does not involve delusions: Carr at [15], [128], [133]. Unsoundness of the mind may arise from other sources, such as supervening physical infirmity or decay of advancing age: Read v Carmody [1998] NSWCA 182. The nature or form of mental disorder that detrimentally affects a will-maker’s judgment does not matter.

58. Separately, cases such as Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [160] and Bracher v Jones [2020] NSWSC 1024 at [455] demonstrate that extreme age, physical weaknesses and emotional lability (or fluctuations of mood) can render a testator incapable of standing up to pressure imposed by others, and as a result incapable of evaluating the strength of claims to their estate.

59. However, as the plaintiff submitted, illness itself is not sufficient to conclude that a testator lacked testamentary capacity unless it appears that his or her mental capacities are shown to have been so affected by that illness as to make her unequal to the task of disposing of her estate: Re Estate of Hodges at 707. Returning to Griffith, Kirby P stated (albeit dissenting in the result) at 295 (citations omitted): In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent – more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval. Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.

60. The capacity of a testator may fluctuate. A testator who is aged and infirm may suffer from dementia or some other form of impairment. Evidence relevant to establishing a lack of capacity may include the exclusion of persons naturally having a claim on the testator’s bounty and extreme age or sickness: Re Estate of Hodges at 706.

61. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval: Veall at [167], citing Kantor v Vosahlo [2004] VSCA 235 at [47].

62. Further, it is not necessary that the testator has actually remembered, reflected and reasoned, only that he or she has the capacity to do so: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [421]-[422]. However, the distinction may at times be artificial where the evidence relied upon to prove capacity is in the nature of what was said and done by the testator at the time of making the will. As Hallen J concluded in Starr at [457]: Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J).

63. With those principles in mind, it remains to explain why the evidence here established testamentary capacity in respect of the Last Will.

The circumstances here: A doubt about the deceased’s testamentary capacity exists

64. I have discussed elsewhere the circumstances that may be sufficient to raise a doubt about capacity: see Walker v Walker (No 2) [2025] ACTSC 9; 22 ACTLR 77 at [37]-[40]. Of the many and varied events, a great change in testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation: Bool v Bool [1941] St R Qd 26 at 39 (cited in Starr at [448]; Walker at [39]).

65. Drawing from Romascu v Manolache [2011] NSWSC 1362 at [205], a non-exhaustive list of factors the court may consider when determining whether the circumstances of any given case are sufficient to excite suspicion includes the following: (a) The circumstances surrounding the preparation of the propounded will; (b) Whether a beneficiary was instrumental in the preparation of the propounded will; (c) The extent of the physical and mental impairment, if any, of the testator; (d) Whether the will in question constitutes a significant change from a prior will; and (e) Whether the propounded will, generally, seems to make testamentary sense.

66. In the present case, the opening paragraphs of these reasons contained the key factors as to why there was a real issue about the deceased’s capacity to make a will. A more fulsome explanation is: (a) A psychiatrist had found the deceased’s cognition to be “severely impaired” one month prior to the making of the Last Will. (b) The deceased was elderly, frail and had anxiety and panic disorders, requiring regular and significant use of benzodiazepines and other medication. On the day in question, the deceased required the assistance of an oxygen tank to maintain her oxygen levels. (c) The plaintiff was a potential beneficiary and was instrumental in the preparation of the propounded will, to the extent that she took her mother to the appointment with the solicitors, remained in the room while some of the instructions and context were relayed, and even gave part of the historical context herself. (d) A significant change to the will was made from prior wills, in that all of the deceased’s shares in a company that controlled a lucrative family business were to be left to the plaintiff.

67. The defendant relied on other circumstances, which are discussed below in considering whether the Last Will was affirmatively proven, but what I have set out above are the material matters that, taken together, are sufficient to displace any initial presumption about the Last Will and require the court to be positively satisfied on the evidence that testamentary capacity and knowledge and approval of the will existed.

Analysis of the evidence – summary of key themes

68. As a result of there being a substantial issue raised as to the deceased’s testamentary capacity and knowledge and approval of the will, the court must vigilantly examine the entirety of what occurred.

69. In this case, the evidence was voluminous, partly as a result of the defendant and the deceased being sophisticated individuals with considerable wealth, ready access to both legal and medical advice, and the willingness to seek it where appropriate. In addition to many family members and lawyers giving evidence, as well as a former client of the deceased’s, a close friend, a former ABM employee who witnessed the 2004 Will, the housekeeper at the relevant time and treating medical practitioners, there was comprehensive medical evidence covering a period from 2015 to 2022, two recordings of meetings or conversations in which the deceased participated in September and December 2019, and the documentary record (including subpoenaed file notes of previous solicitors who actively turned their mind to the deceased’s capacity in 2020).

70. To demonstrate that requisite level of scrutiny undertaken here, the examination of the evidence below is thus lengthy and detailed. It includes some aspects of the evidence from which no inference was ultimately drawn, if only to demonstrate that they were not overlooked. As will be explained, I accept that the solicitors who took instructions in relation to the will (referred to below as Solicitor A and Solicitor B) did not follow best practice in relation to the preparation and execution of the Last Will. However, even though the processes followed and the record keeping of what occurred lacked thoroughness and allowed for uncertainty as a result, I was nevertheless affirmatively satisfied that the complex medical conditions of their client did not operate to deprive the deceased of her capacity to remember, reason and reflect on her testamentary wishes on 25 September 2020.

71. It is helpful to summarise the views that I have ultimately formed from the outset, with a view to assisting the journey through the factual findings: (a) Frenzy of wills: I accept there were many wills made in a short space of time. I have found there were reasons for that which do not reflect upon the deceased’s indecisiveness or lack of capacity to choose. (b) Perceptions of the deceased’s paranoia and secrecy: I accept that the deceased ceased to trust the defendant, became fearful of him, no longer felt safe with him and kept things hidden from him. Again, there were reasons for that behaviour which founded the deceased’s thoughts and feelings, and they were unrelated to a cognitive decline causing a lack of capacity. The deceased was placed in an ongoing, difficult tug of war of family views about how the family money should be managed, including how the business should be run, profit distribution and the future of the Trust. (c) Deceased’s irrational behaviour: Although the defendant perceived aspects of the deceased’s conduct to be irrational, on closer inspection, these were either mere differences of opinion, moments of anger, or views founded upon concerns of other family members, rather than evidence of deficits in cognition or capacity. (d) Deceased’s health (her physical and cognitive condition): The deceased experienced significant physical and some cognitive decline commencing from approximately 2018 and covering the period in which the Last Will was made. The point at which the decline developed into dementia is somewhat equivocal. She had some memory loss. She had increased anxiety and more frequent panic attacks. She had bouts of delirium, however, to the extent that they occurred prior to 25 September 2020, they were attributable at times to low oxygen, infection and significant pharmacotherapy. None of the episodes of delirium were operative on the deceased on 25 September 2020. Specifically, it did not impair her capacity to remember, reflect and reason on the competing moral claims of the family members, including those of the defendant. None of those matters individually or cumulatively so affected the capacity of the deceased on 25 September 2020 as to make her unequal to the task of disposing of her estate. (e) Effect of medication: The deceased had a combination of pharmacotherapy to manage her various conditions, which included benzodiazepines, and there were at times concerns about her dosage. I have found that the deceased continued to take her medication on 25 September 2020, and that her cognition on 25 September 2020 was not affected by either a lack of medication or an overdose of medication. (f) Lack of mental resilience: Similarly with the frequent will making, the deceased’s conduct over 2019 and 2020 demonstrated a consistent intention to benefit all her children and keep the family business as an asset for the benefit of all the family. She was subject to quite considerable pressure, most particularly from the defendant and from Jimmy about that choice, and much of the friction in the family was related to unhappiness with the deceased resulting from her view. But once the deceased separated from the defendant in September 2020 and with the assistance of independent solicitors, I have found that the deceased did escape the clamour of competing claims to her estate and was capable of evaluating the strength of those claims. (g) Complexity of the estate and of the claims to the estate: I have not accepted the defendant’s argument that the complexity of the estate and appreciation of the competing claims was beyond the capacity of the deceased and have discussed this more fully in dealing with the deceased’s knowledge and approval of the Last Will. The fact that there were many assets, a blended family and a family business held in a discretionary trust structure meant that the estate was not straightforward, but nor was it of such complexity that the deceased could not understand the effect or consequences of her decisions. I have found that in discussing with her solicitors “what worked” she had capacity to remember, reason and reflect on the implications for decision-making about the company and the direction it should take. She well understood the crude ‘alignment’, to pick up the language of the defendant’s submission, of other shareholders of the trustee company (the defendant and Jimmy at the material date), and that there was a degree of difficulty in achieving equality between her children. She did not give the plaintiff any greater share of the estate. What she gave the plaintiff was the means to balance the decisions made by the trustee company, with a view to ensuring that the defendant and her son from that marriage did not shut out the children from her first marriage from profits and equal distributions. Her capacity to understand her complex family and the consequences of the estate distribution she implemented by the terms of the Last Will was manifestly intact.

General credibility findings are not required

72. Without reciting all that was before the court, I have endeavoured to deal with any evidence impacting upon the preparation and execution of the will in September 2020, including: (a) The deceased’s cognitive condition at that time; (b) The intrinsic terms of the will; (c) The quality of the deceased’s instructions in September 2020, including their content and the way in which they were given; and (d) The circumstances in which the document was executed (e.g. who was present, what questions were asked by the Law Firm A on 25 September 2020, and what understanding the deceased had of the terms of the Last Will prior to its execution).

73. Evidence before and after September 2020 may inform those matters to the extent that it speaks to the deceased’s capacity on 25 September 2020. The significance of different aspects of the evidence changes if the Last Will is not proven, because the consideration moves to a different point in time, being the date of execution of the earlier wills propounded in a cascading fashion.

74. The plaintiff and defendant and the other lay witnesses all had different observations of, and interactions with, the deceased over the two years leading up to the Last Will and beyond. I did not accept parts of the evidence, either because I considered the witness to be unreliable (whether through misremembering or through their perspective being contrary to other objective evidence, or simply because their version of events was implausible in light of other surrounding circumstances). However, because it was ultimately only necessary to address the deceased’s capacity as at 25 September 2020, a number of factual disputes between the parties as to what occurred did not require resolution and sweeping credibility findings were not required. Further, none of the lay persons were actually present with the deceased at the precise time she spoke with her two lawyers giving instructions for, and executing, the Last Will. Given there may be further litigation between the parties, I have limited the findings dealing with the credit of each witness to those I considered necessary for resolving material facts.

75. Accordingly, unless the reasons indicate otherwise, the facts that follow are what I have accepted to be credible, reliable and significant to the ultimate questions of capacity, and of knowledge and approval. The conclusion that I have reached about the Last Will means that evidence of the circumstances surrounding earlier wills that were executed by the deceased becomes less crucial to the deceased’s state of mind on 25 September 2020. They have been discussed only to the extent that the circumstances touched on that critical time period.

76. The medical and expert opinion evidence is of course significant, but I have dealt with it separately later in these reasons, as part of the consideration of whether there was any disorder of the deceased’s mind impairing her testamentary capacity on 25 September 2020.

The events leading up to the solicitors’ conference of 25 September 2020 – bouts of perceived irrational behaviour, increasing distrust and vulnerability

77. Leading up to that critical period in September 2020, the deceased had suffered a number of panic or anxiety attacks and had been hospitalised on occasion for these as well as being hospitalised at times with exacerbation of her severe lung disease (COPD). There were also occasions where the deceased behaved irrationally towards family members, potentially including the plaintiff in July 2019. The occasions were sufficient to give rise to an inference that the deceased’s physical health was poor, and her mental health was also affected. Her memory was failing. She found it difficult to concentrate at times. Her anxiety was increasing.

78. The defendant and Jimmy each gave evidence of their perception of a decline in the deceased’s cognition over 2019/2020. Jimmy lost trust in the deceased’s abilities, and his view was that she no longer understood what was going on at work. Jimmy gave generalised evidence that his mother seemed to lack awareness of what was going on around her and that she experienced delusions about things that were not happening, although what he was referring to and the timing of those recollections was unclear. His perception of whether things happened or not may also have been affected by what was communicated to him by the defendant.

79. The deceased had a major health episode in early 2019 associated with her COPD. This brought about the making of a will on 25 January 2019, while the deceased was in hospital. While the deceased was at the hospital in January 2019, there was also an incident about a “do not resuscitate” direction, which caused some family members to have considerable concern about whether that was what the defendant had directed. This was denied by the defendant, but the point is that the deceased became aware of that concern. She told the defendant that she was scared that he would not look after her when they left the hospital.

80. After that incident and the sudden deterioration in the deceased’s health in early January 2019, the defendant experienced the deceased starting to be aggressive towards him. Whether the deceased started to become aggressive, or whether she started to voice her disagreement with the defendant over things, which was perceived as aggression by the defendant, is not a necessary fact to determine.

81. In February 2019, the deceased started discussing the family financial position with the plaintiff, which surprised and infuriated the defendant. The deceased also said again to the defendant that she did not feel safe with him. There was a dispute about whether the deceased and defendant started arguing around that time, and the evidence disclosed that the family was in increasing conflict over the family business and other assets.

82. In March 2019, the deceased made a further will the terms of which divided her estate equally among five out of her six children, with Sharon being excluded on the basis that the defendant would look after her. This was the first time that the deceased divided her estate in a way other than leaving the residue of the estate to the defendant.

83. In May 2019, the deceased requested that she have access to $2.5 million in a bank account for her personally, which was done and a Westpac bank account was opened. The defendant’s evidence was that the reason she requested that was because she did not feel safe. He submitted that was an irrational position. However, there are different forms of harm apart from physical harm. Here, the deceased was plainly shoring up protection from financial harm. I do not accept that the deceased ensuring her financial safety was an irrational thing to do at that time. The whole picture of the evidence was that the defendant controlled the couple’s financial affairs. He clearly had the superior grasp of technology and superior physical health. He accessed the bank accounts, he sent the emails, he operated the family business with Jimmy. It is equally open to infer that the deceased had initial thoughts of separating from the defendant around this time and that her immediate financial safety was something that was on her mind. The court cannot speculate as to the true reason, but the fact that the deceased wanted her own money in her own bank account to feel safe was not irrational behaviour.

84. By June 2019, the defendant disagreed heatedly with the plaintiff and with the deceased over various assets, the control of the business, who the business should benefit and how the deceased’s assets would be distributed upon her death.

85. In July 2019, a separate issue arose with regard to the family business and the Trust. The defendant discovered that the settlor of the family Trust could not be a beneficiary under the Trust and that he was the settlor. This was a matter of high significance given the way the family had structured their assets and income, with distributions from the Trust paid to the defendant for many years.

86. This precipitated an attempt to amend or replace the Trust deed by the defendant. There was contradictory evidence about how this came about and whether there was any attempt at fraud. All that it is necessary to find is that the discovery created stress and uncertainty in a family environment that was already fraught and that the deceased lost trust in the defendant due to his behaviour and his attempt to amend the Trust deed, not due to irrationality associated with cognitive decline.

87. The deceased’s will was also a source of tension within the family and the control of ABM as the trustee company became what the defendant described as a “discussion point”. The defendant was aware of the change in the March 2019 Will (which meant that the children were left the residue not him) and requested that the deceased amend her will. He made a series of diary entries around this period of time in which he said on 29 August 2019: My problem is that if she sets the business up so that every one of the kids has shares then [the plaintiff] especially has a right to set who gets paid what and she already thinks that Jimmy and Bec are overpaid, so they and me will be the first casualties of the new structure. Jimmy will not tolerate everyone deciding his pay neither will I. When Mary dies if I don’t go first you can kiss the business away as I will lose control due to the current shareholdings where [the deceased] has a majority. I have asked her to change her will on an ongoing basis but she never does. …

88. Jimmy also referred to many conversations with the deceased about her will and his own concerns at this time with the potential for the family business in which he was so personally and professionally heavily invested shifting away from his and his father’s control.

The family “mediation” on 30 September 2019

89. The increasing family conflict was readily apparent in the family attending what was described as a family “mediation”, for want of a better word. It was initiated by the deceased and conducted by Mr Ronald Clapham, a solicitor apparently well known to the family and involved in drafting or making some of the deceased’s earlier wills. The mediation was partly recorded and that recording was in evidence.

90. The recording was relied upon by the defendant, both as an indicator of the deceased’s behaviour at that time and for what others said during the conference about the deceased, namely that she had memory problems and mental health issues.

91. The recording was relied upon by the plaintiff as demonstrative of the deceased’s testamentary capacity. This included the ability to articulate her desires as to what the Trust should do, to recall the average yearly profit of the business and to propose potential financial arrangements for the ongoing operation of the Trust.

92. The circumstances of disharmony and anger between the family members were played out over a lengthy discussion about the family business – who worked in it, who controlled it and how profits from it should be distributed. During the family meeting, those present repeatedly interrupted each other and there were clear feelings of injustice over past or present grievances felt by all family members, including the deceased and the defendant. There were also feelings of injustice about the deceased’s intentions recorded in her will. During the meeting Jimmy said to the solicitor: She’s gone and written wills that fuck me, [the defendant, and] anyone that’s important [to] the business or organisation at this second, over.

93. The deceased expressed her view about the Trust, which was that she wanted all her children to benefit from the family trust. She felt she did not have actual control despite having legal control of the business. The defendant at various points told the deceased to “shush”, to “shut up your face” and to “stop opening your frigging trap”. Her son Jimmy also called the deceased a “disgrace” on a number of occasions. The deceased at one point asked if she could speak and the solicitor held her from speaking. She asked a second time if she could “have a chance to”, presumably speak or explain, and was interrupted again by Jimmy. That the deceased did not say much during the family “mediation” in those fraught circumstances is unsurprising and reveals nothing about her testamentary capacity.

94. There was some attempt made to characterise comments the deceased started to make about the defendant’s mother and buttons on her shirt as being indicative of a wandering mind unable to concentrate. When that aspect of the discussion is read and heard in context, it reveals that the deceased was endeavouring to explain something and was roundly silenced by the solicitor. She wanted to make a point about the family but was actively prevented from doing so. That snippet of an attempt to communicate did not assist in demonstrating any impairment of the deceased’s cognition.

95. On the contrary, the statements made by the deceased during the meeting indicated that she knew who her children were, she remembered which of her children were working in the family business, she had an awareness of the position of some of her children who were struggling financially and she recalled that she and the plaintiff were guardians for Sharon. The deceased’s comments also revealed a broad understanding of the business and its profits, and she had an ability to estimate the value of the family home. She had a view about distribution of profits by way of a percentage, and she wanted to exercise caution in making an estimation of those percentages without having seen the latest financials.

96. The recording is thus a long way from demonstrating the deceased had lost capacity to remember, reason or reflect in a testamentary sense. Even the solicitor’s comments to the deceased about her memory problems carry little weight because the deceased indicated that she did remember certain comments that she had made but said that those comments had been taken out of context and the solicitor then dismissed her attempt to explain and the family conversation moved swiftly on. What is critical, in my view, is that the recording revealed the deceased well knew the question of legal control of the family business when she died (which, at that time, would be determined by the terms of her will), and the distribution of its profits, was an acute point of contention for this family.

The deceased seeks and receives legal advice in October/November 2019

97. The family meeting not having achieved progress on the impasse, the deceased subsequently sought legal advice. It appears this was done privately, from Mr Mark Love, one of the legal directors at Bradley Allen Love. The advice concerned what to do about the Trust and the fact that the defendant as settlor was not able to participate as a beneficiary under the Trust. The deceased’s goal was to preserve the control of the Trust’s asset for the benefit of all her children and also to allow the defendant to fairly participate under the Trust, so far as a restructure was permissible, without triggering adverse tax or stamp duty consequences.

98. The advice received on 5 November 2019 was to resettle the Trust into a unit trust, and to form a new trustee. It was anticipated that the defendant would be resistant to that occurring. The recommended pathway was for the deceased to appoint new directors, which the deceased could do because of her five-share majority shareholding.

99. On 7 November 2019, the deceased showed the advice to the defendant as a suggestion for fixing “all the family issues”. The defendant responded in a manner that made it clear he was angry and upset. His own diary note refers to him being “livid” and that the plaintiff accused him of bullying the deceased “because I raised my voice”.

100. Around this time, the deceased rang her daughter Simone and told her that the defendant was threatening to put her in a nursing home. In the heated circumstances that had plainly arisen as a result of the deceased’s intentions with regard to the Trust, I accept that a threat of that nature was made.

101. Notwithstanding the defendant’s opposition, the deceased moved forward with her intentions and on 25 November 2019, communicated to the plaintiff that she had secured the resignation of Jimmy’s wife, Rebecca as director, with a view to installing the plaintiff as one of the directors instead. There was documentary evidence to support Rebecca’s resignation that day.

The deceased’s separation from the defendant and the making of the December 2019 Will

102. On 3 December 2019, the deceased and the defendant separated. Again, how that came about was disputed and it is not necessary to make findings about that factual detail. On 5 or 6 December, the defendant moved to stay with his son, Jimmy.

103. On 6 December 2019, the deceased spoke with Solicitor A at Law Firm A to arrange a family law consultation in the coming days. The deceased also issued a notice of extraordinary general meeting (EGM) on 6 December 2019, which was a necessary step to appointing additional directors to ABM.

104. On 9 December 2019, the deceased met with Solicitor A, accompanied by the plaintiff. There was a detailed contemporaneous file note of what was discussed, including the deceased providing details of her poor health.

105. During this meeting, the deceased explained the business structure and her unhappiness about the defendant and Jimmy acting like they were the sole owners of the business. The deceased and the plaintiff discussed details about the family business and its operations. This included discussion of unpaid distributions and real property being transferred in exchange for beneficiary entitlements. I have mentioned these matters because they feed into a subsequent clause in the Last Will about equalising benefits.

106. Upon Solicitor A reviewing the March 2019 Will and explaining that her current will “gives it all to your kids, but excludes Sharon”, the deceased expressly sought a new will.

107. She also indicated that she needed a new power of attorney because she had been forced to sign a revocation on 2 October 2019. In that context, the plaintiff told the solicitor that if the deceased has a panic attack, she loses her memory. I have included this as forming part of the evidence about the deceased’s memory loss, discussed below.

108. There was a further telephone call between the deceased, the plaintiff and Solicitor A on 10 December 2019 and arrangements were made for the deceased to attend the lawyers’ offices the following day for the purpose of executing a new will and power of attorney.

109. Solicitor A then requested one of her colleagues practising in succession law, Solicitor T, to draft a will. She provided her notes of the conference on 9 December 2019 to Solicitor T and relayed the information she knew about the family business.

110. Part of that discussion was about benefits to children that had been made. The conversation between the lawyers involved a question by Solicitor A: There is another business separate to ABM. It’s a ‘mum and dad’ accounting business and technically it’s been transferred to [the plaintiff]. Would this affect the distribution of [the deceased’s] estate?

111. Solicitor T responded: If [the deceased] is concerned about her children each receiving an equal share, the Will could include an equalisation clause to adjust for any unequal entitlements from the trust.

112. On 11 December 2019, Solicitor T emailed the draft will to Solicitor A in preparation for the meeting scheduled later that day where the will was to be executed. Solicitor T’s email is part of the factual matrix as to what instructions were taken from the deceased. I have set out the relevant parts of this email in full because they give content to what was later explained during the conference with the deceased. The points were as follows: • Clauses 5 and 6 give her personal items to the executors to distribute according to a letter of wishes, if she leaves one, and if not, the executors can distribute between her spouse and children as they think fit. The reason I recommend this is that by nominating some clear decision-makers re personal items, it will hopefully avoid potential family disputes, given the current family context. • Clause 8 – I have included the generic “power of appointment” clause from the previous Will. However, based on my very rushed review of the trust deed, I can’t see where she is named as appointor and it seems that the trustee for the time being (i.e. ABM Electronic) has the power of appointment. th • Clause 9 includes Sharon’s protective trust receiving 1/6 of the estate. The terms of the protective trust are set out in part c, with [the plaintiff] and Simone to manage the trust for Sharon. If [the deceased] does not want to include the protective trust, it can be removed and the number of shares in the estate can be amended to 5. • Clause 11 includes a direction to the executors to equalise benefits and make adjustments for any UPEs [unpaid present entitlements] in the trust. It’s tricky to advise fully on the impact of this clause without knowing the extent of UPEs, but I’m guessing she’ll probably want it in there.

113. Again, I have set this aspect of the chronology out in more detail because it takes on additional significance for the issue of knowledge and approval of the Last Will. The December 2019 Will was used as a base document from which to make amendments.

114. Later, in the afternoon of 11 December 2019, the deceased met with Solicitor A again at Law Firm A, to execute the will, a fresh power of attorney and take family law advice about separation. Solicitor T was also there for the first half hour of the conference along with a paralegal. This time, the plaintiff attended to assist with bringing the deceased to the appointment, but she was not present in the room.

115. The solicitor’s file note records the deceased saying that she had COPD and had “lived under duress” for many years.

116. It was the deceased who raised the question of capacity as she was concerned the defendant would say she did not have capacity. She said that the defendant wanted to deem her incompetent so that she could not be a director, and she repeated the concern to Solicitor A later in the conference, stating “My son and [the defendant] will say I do not have capacity to make decision”. Solicitor A deposed to her view being that she did not have concerns about the deceased’s capacity, but she intentionally made a record of her questions and the deceased’s answers.

117. The deceased was able to tell Solicitor A how many children she had, who she was having as executor, and what she wanted to do with all her personal items. The file note in answer to that last question as to how to distribute her personal items was “I don’t have any children”. Given that two answers earlier, the deceased had told Solicitor A she had six children and then named the plaintiff and Simone as her executors, I have inferred that this record was more likely to be the solicitor’s short-hand description for the deceased saying something to the effect of, “I don’t have any that the children would want”.

118. Thus, the contemporaneous file note together with the affidavit evidence and oral evidence of Solicitor A establishes that the deceased’s instructions were: (a) To appoint the plaintiff and Simone as her executors; (b) To divide her estate equally between her six children (with no specific gift of the shares in ABM and the Trust); (c) Not to specify any personal items because her children would not want those; and (d) To make no provision for her husband.

119. The contemporaneous file note recorded that the deceased wished: … to ensure there is [a] lengthy explanation of ‘duress’ and [the defendant] overriding her on things [and] stopping her from seeing her children.

120. The deceased reported things that the defendant had said or done, including that the defendant did not let her out the door, that they did not visit Paul even though he lived in an apartment under the family home and that Simone had a baby shower which all the family attended but the deceased was not allowed to go.

121. The deceased’s view was that the defendant kept her out of the business, that the defendant “lies a lot” and she had concerns about the defendant forging her signature. She asked for advice about how she could prove that the defendant forged her signature over and over.

122. Solicitor T’s evidence was that she explained the effect of the protective trust for Sharon, and that this was a change from her previous will. She deposed to the deceased saying: Okay. I want to include Sharon in the Will, but she can’t manage the money herself. Previously I excluded Sharon because she would not be able to look after the money, but if there is a protective trust for her, then I can include her.

123. Solicitor T’s file note recorded, “She does want to include Sharon in the will,” and referred to that being by way of a protective trust. The plaintiff submitted that this was indicative of the deceased engaging, understanding and confirming that aspect of the will and I accept that submission.

124. The terms of the December 2019 Will in evidence reflect the deceased’s instructions. It appointed the plaintiff and Simone as executors, gave the shares in ABM and the Trust to her executors to be held on trust for the residual beneficiaries, divided the residue equally among her six children, with Sharon’s share to be held in a protective trust, and included an equal distribution clause.

125. The deceased also signed a testamentary statement which was as follows: 1. I have made no provision in my Will for my estranged husband [the defendant]. 2. As at the date of this Statement, [the defendant] and I have separated. 3. [The defendant] has substantial assets in his personal name which I have contributed to, including an interest as tenant in common in respect [of] 3 properties in Forrest and Greenwell Point and superannuation. [The defendant] will be well provided for from those assets in his personal name and from the [Trust] and associated businesses.

126. This was something that was discussed while Solicitor A and Solicitor T were both present, as Solicitor T’s file note records that she explained it was preferable for such a statement to be separate from the will.

127. Solicitor A deposed to explaining the December 2019 Will to the deceased prior to her signing it. She believed that she specifically explained the clauses that were highlighted by Solicitor T. The reason for Solicitor A’s confidence was her belief that she would have followed the instructions of one of her colleagues and confirmed that the deceased wanted to include each of those clauses. However, no file notes recording the actual discussion or explanation of the contents of the December 2019 Will (nor any responses by the deceased) were made.

The defendant and deceased’s recorded meeting on 12 December 2019

128. On 12 December 2019, the deceased met with the defendant. The defendant recorded their conversation. The recording revealed that there were matters of significant dispute between the two. From the tone and the content of the discussion, the deceased was angry with the defendant. She perceived there to have been serious misconduct toward family members, which she had recently discussed with other family members, and she was concerned about the keeping of financial records locked away so that she could not access them.

129. The defendant did not submit that these matters were of themselves indicative of paranoid ideation or delusion and I agree. The lay evidence of other family members was that there were serious allegations made at various times about the defendant’s past conduct and Jimmy’s past conduct. The truth of those allegations is not the subject of this proceeding, and no findings need to be made in that regard. What I consider to be significant is that their source was the communication of information or views from others and there was a historical basis founding the information, including an affidavit from a psychologist regarding one of the allegations. The allegations might have been unproven, unfair or ultimately unfounded, but they were not a product of a deluded or irrational mind.

130. As to the financial records being kept from the deceased, the circumstances recently experienced by the deceased were acknowledged by the defendant. In the same conversation, the defendant accepted that he had refused the day before to provide the deceased with a key and the passwords to access all the financial data and that he and Jimmy had been working together from Jimmy’s place and not in the office. That the deceased was being actively excluded from participation in the business was not an unreasonable, irrational or deluded inference to draw from those circumstances.

131. Rather, the submission was that the deceased said things about going to the police and the magazines about allegations of misbehaviour and that this was suggestive of a delusion. The deceased did say things that were patently untrue in that conversation, including that she had spoken to the police, gathered specialist evidence and was considering disclosing the conduct to the press. The deceased clearly intended to threaten the defendant, and her mention of the police and of reporting things to magazines was part of that threat. However, someone may be angry and lie in a conversation without that being irrational. Their anger may also cause them to engage in hyperbole about having been treated “disgustingly” and to express ideas about what they might do to publicly expose what they perceive to be a wrong. It does not mean that a person who says such things has lost capacity.

132. The deceased characterised the defendant’s contributions to the development of the family business as being of less significance than her own contribution. She referred to him being merely an employee or a bookkeeper. I similarly do not consider that aspect of the discussion to reveal anything about the deceased’s testamentary capacity. The fact was that the original business was something created by the deceased’s father and passed on to her, and the defendant did commence employment many years ago as an employee of the accounting practice. What the deceased said in anger may have been unfair or hurtful, but it did not reveal a lack of testamentary capacity.

133. On the contrary, the recording confirmed that at that time, the deceased had the ability to recall those who may have a moral claim on her estate (all of her children and her husband), because she was talking about them all and the family dynamics. What came through on that recording was the deceased’s very clear wish that the family business remain a family business. The deceased communicated to the defendant that she saw the shareholders of the business to be trustees for the whole family – effectively custodians of the business for the family. She did not want the defendant and Jimmy to run the business for themselves and to shut other family members out, including herself. Overall, I do not consider that a fight between a married couple who had just separated in December 2019 is any safe guide to judging the deceased’s testamentary capacity in September 2020.

The deceased’s reconciliation with the defendant

134. The deceased reconciled with the defendant shortly before Christmas in 2019. The defendant’s evidence was that Paul (who at the time was living in a flat connected to the deceased’s home) had called him and told him that the deceased was wandering the streets. The defendant drove to the deceased’s home and found the deceased sitting in the gutter coughing and looking distressed (Canberra was affected by smoke haze at that time). He helped the deceased home and put her on the oxygen concentrator to assist the deceased to breathe. The next day, the deceased telephoned the defendant and asked him to move back home, which the defendant did.

135. On 10 January 2020, the deceased telephoned a female solicitor at the Law Firm and said: Neil has moved back. Everything has changed. He has given me access to everything. I am very happy. I do not need advice anymore.

136. This was also the day the deceased apparently transferred those crucial five shares in ABM to the defendant. The defendant deposed to circumstances in which the transfer occurred, which included a conversation on 5 January 2020 between the deceased and the defendant in words that the defendant does not recall, but were to the effect that she understood that the shareholding needed to change so that she no longer had a majority. The defendant deposed to the deceased saying that she wanted the defendant, Jimmy and his wife, Rebecca, to collectively have half the shares and her to have the other half. That way no one person could make a decision that others did not agree with or hold an EGM to vote in other directors.

137. As a result of that discussion the defendant drew up transfers and the deceased executed them before a solicitor on 10 January 2020.

138. The authorities express considerable caution about such uncorroborated evidence. A detailed discussion is to be found in Robertson v Barker [2021] NSWSC 1682 at [134]- [144]. It suffices here to cite Plunkett v Bull [1915] HCA 14; 19 CLR 544 at 548-549 where Isaacs J wrote of the need for careful scrutiny of evidence of conversations involving a person subsequently deceased. I do not accept the defendant’s evidence and the reasons given for the transfer. An equal shareholding to prevent the deceased having the power to call an EGM may have been the defendant’s preferred outcome, but his understanding that the deceased agreed is completely at odds with the deceased’s concern, expressed at other times, about the amount of control exercised by the defendant and Jimmy together, including telling Jimmy in October 2019 that the business was not the defendant’s, it was hers, and her statements in the recorded conversation on 12 December 2019.

139. The broader context to that discussion included the deceased having called an EGM scheduled to occur on 27 December 2019. This related to nominating capital beneficiaries of the Trust and potentially appointing more directors to overcome any voting block created by the defendant and Jimmy in respect of restructuring the trustee company. The reason for the EGM was contained in a conversation the deceased had with the plaintiff, which was to the following effect: I have to rebalance the power in ABM and I am not sure how to do it. I think the answer is to do what Mark Love [another solicitor] said. I think we should call a special general meeting to add directors to ABM. I also want to restructure ABM to a fixed trust rather than discretionary to make sure that everyone benefits from their contributions. If it is left up to [the defendant’s] discretion he will never do it.

140. The documentary evidence accords with that view as a notice of EGM was then sent. However, the EGM did not eventuate because the defendant obtained legal advice to the effect that the notice was invalid. The reason for the invalidity was apparently that it was two and a half hours short of the required notice period.

141. The defendant’s evidence also seems to be at odds with the deceased having communicated at the solicitor’s conference on 9 December 2019 that Rebecca had signed over her 10 shares and that the defendant was lodging the share transfer, as well as Rebecca having resigned as director on 25 November 2019.

142. The plaintiff’s evidence was that the deceased told her about Rebecca’s resignation on the day it occurred and these documents formed part of the file of Law Firm A (meaning they must have been provided by either the deceased or the plaintiff). The share certificate transferring 20 shares from Rebecca to the defendant is itself a little confusing, as the ASIC extract dated 11 December 2019 indicated that Rebecca had only 10 shares to transfer. Putting that issue to one side, the evidence indicated that at the time that the deceased is said to have stated that she wanted half the business to be shared equally with the defendant, Jimmy and Rebecca, Rebecca had in fact exited her involvement in the business.

143. Even if it were accepted that the conversation occurred as deposed, it did not establish that the deceased actually agreed to transfer five of her shares to the defendant as opposed to transferring them to someone else. The control of the family business and how it was being operated and whether the whole family was able to continue to benefit from the business was something that was most important to the deceased. The deceased said in the same conversation with the defendant that she wanted to hold more shares than the defendant because she did not fully trust him.

144. Further, had the deceased willingly signed a transfer of those five shares, it is unlikely that she would have forgotten such a significant action, or that she would have kept such a matter from the plaintiff. The plaintiff deposed to only finding out about the share transfer in July 2020 when she obtained a company search. The medical evidence did not support a memory loss to that extent in January 2020, and I do not consider this was something the deceased simply forgot.

145. The plaintiff’s affidavit deposed to the deceased telling her on various occasions in 2020 that the defendant was making her sign documents she did not want to sign. I accept that evidence. During the conference with her solicitors at Law Firm A on 25 September 2020, the deceased informed them that she knew nothing about that share transfer and on the evidence before the court, I consider that what the deceased told her solicitors at Law Firm A about her lack of knowledge of that transaction was the more reliable evidence.

The March 2020 Will (not propounded by anyone)

146. The deceased made a further will on 19 March 2020. It was made without any legal assistance at the time it was executed, although a solicitor from a different firm of solicitors (Law Firm B) did witness the March 2020 Will. The file note from Law Firm B’s records confirms that one of the solicitors employed by Law Firm B had attended the house with a legal secretary for the purposes of the deceased signing an enduring power of attorney.

147. While she was there, she overheard a fight with the defendant in another room, during which time she heard the defendant say to the deceased “Are you trying to destroy me?”. The deceased then came back into the room where the solicitor was. The defendant entered the room shortly afterwards and passed the deceased a document. The deceased then asked the solicitors to witness her signing the document, which then became the March 2020 Will.

148. There was advice given by Law Firm B in March 2020 in respect of the power of attorney which was before the court. It expressly referred to the deceased’s reported fear of the defendant, the family conflict at the time, and the defendant’s power and control exercised over the deceased. Given the subject of the advice and the circumstances witnessed by the solicitor at Law Firm B, I do not consider that testamentary document to reflect on the deceased’s capacity in September 2020, although it may reflect on her vulnerability and the relationship dynamic with the defendant.

5 June 2020 – the deceased contacts the plaintiff about pressure to sign documents

149. The plaintiff deposed to the deceased calling her on 5 June 2020 and telling her that the defendant was pressuring her to sign documents she did not wish to sign.

150. The plaintiff also sent an email to the defendant, which was in evidence. It referred to the deceased as being beside herself in tears because the defendant was pressuring her to sign documents. Without setting out the full complaint, the plaintiff requested that the defendant stop putting her mother under such “enormous pressure”.

151. The following week the deceased said to the plaintiff that she had signed documents under pressure. She said: I fell for it and signed documents under pressure. [The defendant] only wanted me so he could get me to sign documents. The penny dropped when he wanted to change [the family home] to joint tenants and transfer the money in my Westpac account to a joint account. [The defendant] is isolating me from everyone. He won’t let me see you kids. If I do see you, he makes me pay a price. [The defendant] has found a way to get ABM out of the Trust.

152. There was a handwritten note in evidence consistent with the deceased taking action in relation to her financial affairs on 14 June 2020, requesting the plaintiff to get an agreement settled with all kids included and to make sure the Trust was not closed, among other things.

153. The plaintiff deposed to complying with the request in the handwritten note and this resulted in her taking control of certain assets, including a building in Sydney from which ABM operated. The defendant regarded this as a betrayal by the plaintiff and by those who knew about the plan prior to its execution, as indicated in an email sent to all the children.

The deceased continued to work as an accountant in July 2020

154. The deceased continued to perform tax planning and financial planning work. How much, and what level of executive functioning was required to perform the work that she did do, was the subject of debate. However, there was some lay evidence before the court that the deceased continued to undertake professional accounting services, including the preparation of tax returns for the end of financial year to 30 June 2020. That did not mean she was trusted with or performed difficult work, but together with the file notes of things she said concerning the family finances and assets and comments she made in recordings, I accept that the deceased maintained an ability to handle and advise on financial data and accounting matters, including up to 25 September 2020.

155. The defendant’s view was that the deceased had lost the capacity to work in the family business and the deceased’s view was that she had capacity but was actively excluded by the defendant and Jimmy.

156. There may have been some truth in both those views, but the deceased clearly retained a substantial body of accounting knowledge at that time, and her ability to work in the office environment may have also been partly affected by matters other than her cognition, such as her physical health and her lacking the technological savviness of a new generation (which was apparent from the assistance given to the deceased by different family members in that regard).

157. Further, Professor Caplan (whose evidence is discussed below) did not consider this to be of any assistance in determining capacity and I agree that whether the deceased continued to attend the office and perform professional services or not was not a reliable indicator of capacity. The defendant seeks assistance to care for the deceased in July 2020

158. In July 2020, the deceased was assessed for a home care package, which was later approved in November 2020. The records indicated that the deceased had had a number of falls in the last 12 months. The deceased was “independent” with regard to “her financials, personal care, walking eating and transfers”. She required assistance with preparing meals due to being on oxygen as well as suffering from COPD.

159. The defendant had reported to the assessor that he was becoming sleep deprived from having to get up five-six times a night to reset the deceased’s oxygen. Domestic assistance, flexible respite and assistance with meals was required so that he could get a break from his caring role.

160. Under the heading “Psychological Domain”, and the sub-heading “Cognition” the following was written: [The deceased] … suffers from both memory loss and confusion. ... [the deceased’s] memory is not as it was 2 years ago, her short term memory is affected. … loss of confidence due to anxiety has gone up. [The deceased] used to be a business person in the past [and] finds it difficult that she … doesn’t do what she used to as her cognitive ability has diminished and is not what it was three years ago.

161. This information was conveyed by the defendant. I consider it to be a fair summary of what was occurring at the time.

The refusal by Law Firm B to draft a further will for the deceased and the making of the August 2020 Will (not propounded by anyone)

162. In March and again in June 2020, when Law Firm B was attending to the deceased’s enduring power of attorney, the deceased had sought the assistance of Law Firm B to prepare a new will. The file notes and letter of advice record that given the complexity of the deceased’s circumstances, Law Firm B had told the deceased it was not in the deceased’s best interests for her to prepare the will as the will would be complex and would likely result in litigation. Law Firm B indicated the names of two excellent solicitors the deceased could approach for assistance in making her will.

163. Separately, the solicitor at Law Firm B made a detailed file note about the deceased’s capacity to execute a power of attorney and will on 18 March 2020. The solicitor recorded her view that the deceased had capacity and listed many reasons for how she came to form the view. I have not given this note significant weight because the solicitor did not appear experienced in the area of making wills (it was one of the reasons why Law Firm B did not wish to prepare the deceased’s will) and the timing was approximately six months before the Last Will was executed.

164. On 11 August 2020, the file notes record two concerns of a solicitor at Law Firm B: firstly, that the deceased was under duress from the defendant (which is different from a susceptibility to influence), and/or secondly, that the deceased lacked capacity because she claimed not to remember why she had consulted the solicitor on the two times they had met.

165. The defendant relied on this as tainting the Last Will, but I have placed little weight on that solicitor’s view about the deceased’s capacity because of the surrounding circumstances on 11 August 2020. These included the following: (a) An email was purportedly sent by the deceased (because it contained the deceased’s name at the end of the email) requesting the invoices. The solicitor’s file note says “I was concerned [the defendant] may have written the email, not [the deceased]. I shared that concern, because the language of the email was abrupt and came from an email address shared with the defendant, in circumstances where it appears the deceased’s communications with Law Firm B had otherwise been made entirely by telephone and the defendant’s own diary notes were consistent with the deceased rarely using email herself. I was not convinced that the email was sent by the deceased, or at least not voluntarily. (b) Six minutes later, the solicitor rang the deceased, and it was in that phone call that the deceased claimed not to remember why she had seen her solicitor on two occasions. She asked for a narrative to be put on the invoices. (c) In a subsequent telephone call made from the deceased to the solicitor 15 minutes later, the defendant was heard in the background and was involved in discussions with the deceased about the power of attorney that the deceased had executed. The deceased then communicated to the solicitor that she was cancelling the power of attorney.

166. In light of those circumstances, the explanation for the deceased stating to the solicitor at Law Firm B that she did not remember why she consulted her may have been for reasons that did not in fact involve any memory loss or issue with her capacity but instead an action to protect herself from adverse repercussions from the defendant. Again, it is not necessary to draw any inference about that, but the circumstances are such that I do not consider the solicitor’s un-investigated concern about the deceased’s capacity on 11 August 2020 to merit any weight in assessing her capacity on 25 September 2020.

167. The next day, the deceased signed a new will, dated 12 August 2020. The witnesses on the August 2020 Will were ABM employees. The terms of that will appointed the defendant, Jimmy, Mark and Paul as the deceased’s executors, gave 30 of the deceased’s shares in the family business to the defendant, 10 shares to Mark and the other 60 shares to Jimmy, gifted the Greenwell Point properties to the defendant as well as one fifth of the residue, and the remainder of the residue was to be divided equally among the six children.

168. In the conference on 25 September 2020 with her solicitors, the deceased discussed that August 2020 Will. Solicitor B deposed to the deceased saying that the defendant wrote the will and made her sign it. She had no choice and it was not what she wanted. She said she did not read it and had not seen the document before it was handed to her. She did not get an opportunity to consider it. I accept that the deceased said those words.

169. Its terms appear to be so significantly at odds with every other action the deceased was taking or saying at the time about her wishes that it is glaringly improbable that the deceased freely consented to signing that document. I accept that what the deceased said about the circumstances in which she came to sign the August 2020 Will is likely to be true. To the extent that the defendant’s account differed as to the deceased requesting assistance to write a new will and her testamentary wishes, that version is rejected as implausible and out of step with the surrounding circumstances, including statements the deceased made to the plaintiff, and the circumstances the deceased explained to the solicitors at Law Firm A. Within a fortnight after the August 2020 Will was signed, the deceased made a decision to exit the marriage.

170. These findings mean that the evidence about the execution of the August 2020 Will does not shed any light on the deceased’s testamentary capacity approximately a month later.

24 August 2020 - the deceased visited her son and communicated her intention to end the marriage

171. At this point, Paul still lived in an apartment downstairs at the family home. On approximately 24 August 2020, the deceased came down to see him and said words to the following effect: I want to talk to you here so that [the defendant] can’t hear me. I want to leave him. I’m getting legal advice about what to do. I want to share my money with my children now because otherwise [the defendant] won’t let me. I want to look after all of my children and make sure they have at least $1.5m - $2m each. [The defendant] will still have more than enough. He’ll be left with plenty. I also want to ensure all the grandchildren are looked after.

172. In the same conversation, Paul also deposed to his mother saying: The reason I rarely invite you over for dinner at our house is because [the defendant] doesn’t want this. He wants to keep me isolated from you and from others, including my friends. … I feel frightened and intimidated by him.

173. Paul was cross-examined and I accept this evidence as credible and reliable. 21 September 2020 – The drafting of a complaint to the ACT Human Rights Commission

174. The defendant deposed that, on 21 September 2020, he came across the deceased and the plaintiff at the deceased’s home filling out a complaint form against the defendant in respect of elder abuse, for lodgement with the ACT Human Rights Commission. The plaintiff’s version of what occurred was different, but the point is that the defendant became aware of the deceased’s intention to complain about how the defendant was treating her. Among the deceased’s concerns were the withholding of financial data, transfer of shares, forging the deceased’s signature, stopping her from seeing her kids, and threatening to put her in a nursing home.

175. The defendant submitted that those complaints revealed doubts about her cognition and rationality, in the sense that they were products of the deceased’s ongoing paranoid ideation and delusions. I do not accept that submission because: (a) The withholding of financial data and the keeping of critical documents in a locked box had been a live issue in December 2019. The defendant accepted that he had withheld documents and keys from the deceased. (b) As set out above, the defendant’s explanation for how the transfer of five shares came about was unconvincing. It is unnecessary to make any finding about whether there was in fact a forgery and no party sought such a finding. It is enough that there was a share transfer and the plaintiff’s evidence supported the view taken by the deceased, which takes the matter out of the category of an irrational belief or unshakeable belief without foundation. (c) In addition, both the wills that were signed in March and August 2020 distributed the deceased’s shares in the family business in a manner that reduced the shares of the estate in respect of the plaintiff and Simone. In the March 2020 Will, their th entitlements were reduced from 1/6 of the estate to a limited number of shares in th the trustee company and 2/15 of the residue and then the August 2020 Will entirely excluded the plaintiff and Simone from receiving any shares in the trustee company. Contrary to the defendant’s account, there was evidence that this occurred because of the defendant’s influence and not due to the deceased’s choice. I considered the evidence to be sufficient to support a perception by the deceased of the defendant causing her to transfer shares against her intentions. (d) The defendant isolating the deceased from seeing or communicating with her children also had evidentiary foundation: (i) Simone deposed to the defendant not communicating with the deceased’s children when the deceased was admitted to an intensive care unit in 2018, to the defendant not allowing the deceased to come and visit her, and on 22 September 2020, to not being permitted to leave the house. (ii) The defendant sent an email in May 2020 to all of the children. He referred to the deceased being unwell and named one of the reasons as “social isolation” which rather suggests that she was isolated. In the same email, the defendant accused the children of “continual interference in our marriage” and said to the children that those who had played a part in bullying tactics and in cancelling Christmas lunch at their house “should be ashamed of yourselves and don’t deserve to play any part in this family”. (iii) As set out above, Paul deposed to his mother telling him, a month before she made the Last Will, that the reason she never invited him over for dinner was because the defendant was isolating her from her children and her friends. Under cross-examination, Paul said that it was rare that he spoke to his mother and that he felt they had grown apart, which is consistent with the deceased’s view that she had become isolated from her children. The deceased used the same language of being isolated from her children to her close friend. (iv) The plaintiff deposed to the defendant actively preventing her from attending the deceased’s home on 22 September 2020. However, there were also moments of indirect resistance by the defendant to the deceased seeing her children. For example, the defendant deposed to the deceased telling him she had invited the plaintiff over for dinner in May 2020 and him saying “Oh please don’t. I can’t stand it. She’ll ruin everything again.” The deceased then said, “She’s my daughter. Also I can invite whoever I like”. From the defendant’s perspective, that might suggest that he did not in fact prevent family members from attending the house for dinner. However, family dynamics are more nuanced than that. From the deceased’s perspective, the fact that she was met with resistance and knew that the defendant did not want her daughter in the house may have been enough to cause her not to invite the plaintiff as often as she would have wished, for peace. The point is that isolation is not necessarily active prevention; it can result from many small acts of behaviour. (e) On the question of the threats of the deceased being placed in a nursing home, again, Simone’s evidence supports those statements, as does the evidence of the deceased’s close friend. The clinical records also demonstrate that was a real possibility, as an ACT Aged Care assessment carried out on 1 July 2020 recommended respite assistance for the defendant. I reject the defendant’s evidence that he never said statements of that kind.

176. In short, there may well have been another side to the story for each of those issues, but these were not insane delusions or paranoia attributable to an unsound mind.

Police involvement on 22 September 2020 – the defendant and the deceased separate

177. The following day, on 22 September 2020, the deceased spoke to Simone in the morning and Simone’s evidence (noting that only her first affidavit was read and she was not cross-examined) was that her mother’s voice was shaky and frightened. She said, “I’m not allowed out.” Simone’s perception was that her mother was speaking in code or pretending to be speaking to someone else. She hung up the call abruptly and then when Simone tried to call her back, the calls failed.

178. The plaintiff deposed to not being permitted to see the deceased that day and I accept that evidence. The two daughters decided between them that the police should conduct a welfare check. Police attended the premises and observed the deceased to be crying, shaking and sitting in a hunched over defensive position with both arms clutched across her stomach. She appeared to be fearful to talk while the defendant was in the room. The deceased disclosed to the police that she was petrified of the defendant and that the defendant had been engaging in controlling behaviours economically and emotionally. The outcome of the police’s visit was that they saw fit to remove the defendant from the premises.

179. Once the defendant had been removed, Paul went up to see his mother. She said to him that she had told the police how she felt threatened by the defendant and that she would pay for it when they left her with him. The deceased then said to Paul: Go to the ABM office and check on [the defendant]. He might be taking files from there.

180. Paul did as he was requested. His perception of the defendant was that he was extremely angry and blamed everything that had happened on the plaintiff, saying that he would “make sure she gets … nothing” and would “pay for this”.

The solicitors’ conference on 25 September 2020

181. On the morning of 25 September 2020, the deceased rang the defendant and left a voice message asking what medications she should take. The defendant missed the call. It is unknown whether the deceased took any medication before the plaintiff arrived. The plaintiff deposed to later seeing the deceased taking her medications, including Ritalin. The plaintiff was not directly challenged on that, but the defendant’s evidence was that he did not think the deceased was really taking Ritalin at that time. The deceased had been prescribed it in 2019, and the evidence of her general practitioner, Dr Audrey Clarke, was that it was prescribed again in February 2021.

182. The deceased attended a conference that afternoon, which is critical in establishing testamentary capacity. It occurred from about 2:15pm to 6:00pm at the offices of the solicitors. The persons present were Solicitor A and Solicitor B from Law Firm A, the plaintiff and the deceased. The plaintiff was only present for the first part of the conference, although the time during which she remained in the room is uncertain. The file notes indicate that it was for some time, while the plaintiff and the deceased discussed the history.

183. Solicitor A’s evidence was that she believed the deceased was mentally sharp because her answers were accurate, clear and concise. Regrettably, no one appears to have discussed what pharmacotherapy had been consumed that day or in the preceding days.

184. Solicitor B asked the deceased, “Can you tell me about your assets?”

185. The deceased responded “My super was between $1-2 million in a self-managed super fund. The money was withdrawn and used to pay out the Redfern properties when they were moved from the Trust. The super was transferred into a Westpac account.”

186. The deceased recalled that she had recently made a will in August 2020. She explained the circumstances set out above in relation to the August 2020 Will.

187. The deceased spoke about the shares in the trustee company for the Leslie Family Trust. The deceased said: I did have 105 shares but now I have 100 shares. Jimmy had 10, Rebecca had 10 and [the defendant], my husband, had 75. Now, I have 100, [Jimmy] has 20 and [the defendant] has 80. I knew nothing about it. I wasn’t aware that any of the forms were signed.

188. The plaintiff then said: We found out when we did a company search of ABM Electronic Engineering.

189. Further discussions ensued about the lodging of forms with ASIC without any signature and the deceased’s health condition (COPD). Solicitor A recalled that the deceased was very detailed when describing her medical conditions and the file notes bear that out to some extent. Regrettably though, the file notes disclose that the detail was all directed to the deceased’s physical condition. There appears to have been no detail at all provided about the deceased’s cognitive condition or the medication that the deceased had been prescribed (or had taken that day). No questions were asked about this by the solicitors at all.

190. The deceased described the position of ABM, discussing the goodwill, the profit and the value of the company.

191. Although it is not clear, Solicitor A’s belief was that the plaintiff may have left the room around that point.

192. The deceased discussed the property assets, stating: The Redfern property is worth around $900,000 to $1 million. The Greenwell Point property has four houses on it. The main home is done up and we stay in that home. There is one larger house and two smaller ones. Cottage 3 would be worth $440,000. It’s one block of land with five houses. The overall value of that lot would be about $1.5 to $2 million. The Redfern property did have a mortgage, but I have no idea what it was. I didn’t get to have any look at the figures. They are locked away.

193. The above was Solicitor A’s recollection. She believed there was an error in transcription with regard to the number of houses on the Greenwell Point property. She did not think the error was made by the deceased. Notwithstanding that belief, I have assumed that the error may have in fact made by the deceased for the purposes of considering capacity.

194. Solicitor A then wrote “[Solicitor B] asking questions” and Solicitor B drew a line across the page. Solicitor B deposed to that line indicating when he commenced taking instructions from the deceased for her will and that the plaintiff had left the room by that stage.

195. The deceased told the solicitors she had six children, four from her first marriage and two from her second. She discussed their partners and her grandchildren.

196. The deceased then discussed her assets. There was an asset schedule at the conference, which Solicitor B used to check the deceased’s understanding of the assets. But Solicitor B’s evidence was that the deceased’s responses were unassisted by the asset schedule. She recalled the family home and investments properties. She recalled a benefit paid to her son Jimmy. She estimated the value of the family home at between $4 million and $5 million, observing that the market at the time was very fluid. She estimated the value of a property in Narrabundah to be $850,000. She spoke about the family business (naming it) and her superannuation. She referred to a Westpac Bank Account, stating it had $2,240,000 in it.

197. The deceased then referred to the structure of the business held on discretionary trust. She recalled that the children were beneficiaries and that the defendant was a director of the trustee company. The deceased told the solicitors of her view that the defendant had fiddled with the trust.

198. Solicitor B appears to have asked the deceased what her understanding of a will was, as they each have a note of a response to the effect of a will is a document which lists assets and how you want to leave to certain people or a group on your death.

199. Solicitor A’s notes record that Solicitor B then asked the question, “Do you know who you would like as an executor?” The deceased named the plaintiff, “because she is an accountant” and “she understands what’s required.” The deceased said that she has seen how a will can break up a family. She expressed that the alternative option is everyone (all children).

200. The deceased appears to have then landed on the plaintiff, but if not, then Paul, Mark and Simone.

201. She considered Jimmy’s son but did not think it would work (he was 11 years old). She stated that Sharon would not have capacity.

202. Solicitor B then asked about beneficiaries. The deceased said, “it’s a matter of what works”. She said “probably” [the plaintiff], observing that the plaintiff was able to make the situation soft and could work through issues with different groups.

203. Solicitor B asked whether, if the deceased was leaving the estate as a whole, she wanted anything to go to the defendant. The deceased responded that she wanted the estate to go to the children in equal shares. The deceased indicated “nothing for [the defendant]”.

204. Solicitor A’s file note records as follows: Nothing for [the defendant] / yes I realise he may take it to court It may cost more to fight it Need to do it in a cost effective way That’s why I like [the plaintiff] – clients trust [the plaintiff] She’s the same as me Always looks at implications

205. Solicitor B’s file note also records “may need to give [the deceased] something so as to avoid a FP claim”. He recalled that he gave that advice.

206. The deceased was asked about whether the properties were owned as joint tenants or tenants in common. The deceased thought the family home was tenants in common and that Greenwell Point was tenants in common.

207. The notes of Solicitor B cease at that point. Solicitor A records the deceased saying that the defendant knew she was unhappy and she wanted her half share to go to the kids. However, the defendant wanted her half share to go to him. They had a lot of fights about what the children will get when she dies. She referred to the family home and the fact that it was too big and they were talking about selling. She stated that the Redfern units were in her name.

208. It appears there was then a suggestion from Solicitor B or the deceased (it is unclear) that the deceased could leave the defendant an interest in the family home and Greenwell Point.

209. There was then discussion of the deceased’s 100 shares in the family business. The note records: 100 shares – have to go to someone – not to [the defendant] [Solicitor B’s initials]: you might leave your shares in the company to [the plaintiff] [The plaintiff] has 50% controller of trust [The defendant] & [the plaintiff] (indecipherable)

210. There appears to have been a recapping by Solicitor B to confirm the deceased’s instructions, because Solicitor A made the following note: Appnt [the plaintiff] as executor. If not avail, Paul, Mark, and Simone as substitute executors yes We give control of the company to [the plaintiff] Leave balance of estate to children.

211. The solicitors then went on to discuss a power of attorney.

212. The solicitors appear to have then drafted the amendments to the will, with the assistance of a legal secretary out of the room. Solicitor B then returned with the document.

213. Solicitor B’s evidence was that he gave the printed copy of the will to the deceased and she read it in his presence. Acknowledging that a degree of caution should be exercised in accepting the evidence of a solicitor which was part memory and part reconstruction, I nevertheless accept that evidence, because it accords with common sense that a solicitor would permit the testatrix time to read the document that she was about to sign.

214. Solicitor A’s file note records what then occurred: 5pm – [Solicitor B] explained will to [the deceased] [Solicitor B] explained each provision of Will. [The deceased] said that’s fine to each explanation. We signed. [Solicitor B] explained each provision of POA & read Schedule 3 to her. They have control of every element of finances. [Solicitor B’s initials]: Given history of forged signatory – having joint signatory.

215. It appears the discussion of the conference then moved on to discussing a letter that had been received from the defendant’s solicitors in relation to the deceased’s separation and a response to that letter. The file note records the conference ending at 6:00pm.

The defendant’s email to the children on 25 September 2020

216. On the evening of 25 September 2020, the defendant sent an email to the children (save for Sharon) in part to deal with medications and future arrangements following the issuing of a family violence order. Part of the email stated: I also put all of you on notice that if anyone seeks to “coerce” Mary into providing them with financial benefits or preparing fresh legal documents such as wills or Powers of Attorney that in any way benefits yourselves, I will utilise every legal option available to me to counter that action. That notice includes taking action based on any Power of Attorney previously in place in order to provide any of you with a financial benefit. The deceased had the capacity to understand the nature and effect of making a will

217. The starting point is s 9 of the Wills Act 1968 (ACT), which sets out the formal requirements for a valid will under that legislative provision. The Last Will complied with those formal requirements because it was made in writing and signed by the deceased in the presence of two witnesses, being the two solicitors who were involved in the taking of instructions and ultimate execution of the Last Will.

218. As to the deceased’s capacity to understand, this element was not in dispute; the defendant did not contest that the deceased was a sophisticated businesswoman who fully understood: (a) The nature of a will and how it worked, and (b) That in executing a will, she was approving the relevant document as her last will and testament.

219. The deceased gave instructions to a solicitor on the same day that the Last Will was made. The meeting at the solicitors’ offices on 25 September 2020 occurred with the deceased, the plaintiff and the two solicitors, both of whom gave evidence. Solicitor B’s evidence was that the deceased understood that a will “takes effect after death. It lists which assets you are leaving and how you want to leave them to people or a group” and that the executor “ensures the distribution of the Will”. The file note prepared by Solicitor A during the conference is consistent with that evidence.

220. The medical and lay evidence that is discussed below in relation to other aspects of capacity was not to the effect that the deceased’s very ability to even understand the effect of a will and the effect of what she was doing in making the Last Will were compromised. I find that she had such capacity.

The deceased had capacity to understand the property that would form the estate

221. The second and third aspects of testamentary capacity are where the crux of the dispute lies. I accept that the deceased had a cognitive impairment and that it was evident in August 2020, when the deceased was assessed by Dr Lowden, psychiatrist.

222. However, I find that the deceased was sufficiently lucid on 25 September 2020 to be able to generally recall the property that would form her estate. This is indicated by: (a) Other medical evidence from psychiatrists over a similar time period where there were no significant deficits identified; (b) Evidence of other family members as to the conversations they had with their mother in August and September 2020; and (c) The deceased’s responses in the conference on 25 September 2020 with her two solicitors.

223. The medical evidence and evidence of lay witnesses has been dealt with below, as part of consideration of the nature and extent of any cognitive impairment.

224. The conference the deceased had with the solicitors on 25 September 2020 was troubling in a number of respects. The plaintiff did leave the room at some point during the conference. However, as submitted by the defendant, the plaintiff contributed to a free ranging discussion at the beginning of the conference more than would ordinarily be appropriate in the circumstances where she was an obvious beneficiary under any will, including the Last Will.

225. That difficulty was compounded by the fact that the record keeping by the solicitors made it difficult to be certain who was speaking at times as between the deceased and the plaintiff, or to know when the plaintiff exited the conference or what questions were being asked specifically of the deceased. The deceased’s instructions were also not recorded in a fulsome manner.

226. Those matters introduce uncertainty, but ultimately the evidence of what occurred during the conference was sufficient to establish on the balance of probabilities (in the way that I have outlined above) that the deceased had the capacity to understand in general terms the property that would become her estate upon her death, in terms of what it included and approximate value, and that she exercised such capacity in the conference.

227. There are a number of reasons for that conclusion. First, the deceased had substantial assets. The circumstances of this case were that the deceased was unlikely to be able to call to mind every asset but instead relied on a Schedule of Assets and Liabilities. That document set out the deceased’s joint assets and their approximate values. The evidence indicates that she was clearly very familiar with that document as there are times in the evidence where she refers to it or witnesses observed her reviewing it, and a version of it was at the conference. There were two versions of the document discussed in the evidence. Solicitor B recalled the one that was used had handwriting on it, which appears to be a reference to the earlier version already on file. There was also an updated document without handwriting dated 31 August 2020, although it is unclear whether that was used during the conference.

228. While that document assists with providing the deceased with a ready means of access to current estimates of the joint value of the property, it did not demonstrate the deceased’s ability or capacity to recall her assets.

229. However, that recall ability for the nature and value of her property is established by the deceased actually discussing the property assets during the conference: (a) The deceased referred to two property units in Redfern. Although Solicitor A’s notes record at one point during the conference that “both Redfern units are in [the deceased’s] name”, there was uncertainty as to whether that was said when the plaintiff was present during the conference, so I have not relied on that comment. However, at the point where subsequent mention is made of those properties, it is clear that the plaintiff was no longer in the room and that this information could only have come from the deceased. The Schedule of Assets records the split of assets between the deceased and the defendant. The entirety of the values attributed to the Redfern units is in the asset column for the deceased. (b) The deceased recalled the nature of the properties owned at Greenwell Point and discussed the various dwellings built on the land and believed that it was held as tenants in common. (c) The deceased recalled the family home and believed that was also owned as tenants in common. She estimated a value on the property that was consistent with that recorded on the asset schedule. It was also consistent with a valuation of the property undertaken in 2017, which was in evidence and valued the family home in Forrest at $4 million. (d) The deceased recalled her superannuation, stating that she had $600,000 in superannuation and now the schedule showed $200,000. That is also consistent with the evidence, which at a previous stage recorded the deceased’s superannuation at $1.2 million, some of which was then transferred into the Westpac bank account. (e) The deceased said she had no idea what the value of assets in the bank accounts were (demonstrating her recollection that she had cash assets). The reason she gave for her lack of knowledge was not that she could not remember but that the figures were kept locked away from her by the defendant. There was other evidence in the plaintiff’s affidavit and in cross-examination of the defendant to suggest that is in fact what occurred. (f) The deceased had a recollection of money held in a Westpac account. From the file note, the deceased told the solicitors that she asked for that money because “I wanted to feel safe”, which accords with the defendant’s version that $2 million was transferred into a bank account for the deceased at her request for that reason. She did remember the approximate value of that bank account. The file note of Solicitor A records “2 million, 2 000 & something”. Solicitor B’s notes also recorded what the deceased said, and the figure recorded was $2,240,000. I have inferred that Solicitor A inadvertently missed out recording the word “hundred”, as implicitly recognised in Solicitor A’s affidavit evidence, but nothing turns on that. The way that number was recorded indicates direct speech, rather than someone reading the asset schedule document. The asset value stated on the asset schedule as at 31 August 2020 was $2,260,000. (g) The deceased referred to the family business as involving $3 million in profit with a value (including goodwill) of $9 million. The profit figure stated was broadly consistent with a comment made by the defendant as to his estimate of the business profit during the failed mediation in September 2019. It was also consistent with the quarterly financial statements of the business (31 March 2020) that were in evidence. (h) The deceased spoke about the business structure and how it was held through a discretionary trust. She recalled that her husband was a “director of trustees” (the settlor or appointor) and that the children were the beneficiaries. (i) The deceased also recalled that she had 100 shares in the business. There is a record of someone (either the deceased or Solicitor B) saying they have to go to someone and then the words “not to [the defendant]”. Those words could only have come from the deceased.

230. Viewing all of those various parts of the discussion, I am confidently persuaded that the deceased had capacity to call her estate to her attention at the point when she was considering what to do with it. She may have been assisted at some point by a written document and even prompted by the solicitors who were also looking at the Asset Schedule, but her responses demonstrate sufficient independent mental acuity to establish capacity with regard to an appreciation of the size and nature of her estate.

The deceased had capacity to weigh competing claims

231. I am also confidently persuaded or affirmatively satisfied that the deceased had capacity to weight competing moral claims on her estate because: (a) She had no difficulty in recalling her immediate family members, including those who required different treatment (Sharon) and dividing family members between the two marriages. (b) She recalled the family conflict and appreciated the difficulty in effecting an estate distribution that worked. (c) She demonstrated the capacity to reason who should be her executors and she explained why she was excluding some of her children from being an executor. (d) It is the case that the distribution of the shares in the family business was an item of significance in the deceased’s estate for all the reasons set out in the factual findings above. The deceased actively turned her mind to the shares in ABM and her comments in conference demonstrated that she knew at that point she had 100 shares. The deceased’s ability to reason and reflect, or to appreciate the effect of the transfer, was plainly evident in her saying, “Not [the defendant]” and “if I leave them equally between all my children, Jimmy and [the defendant] will have control of the trust.” Whatever choice she ultimately made, she had exercised capacity in appreciating the nature of the gift and the consequences of giving or not giving the shares to the defendant or Jimmy. (e) I accept that Solicitor B offered the solution, and that it was adopted by the deceased. However, that moment in the conference does not erase the capacity to reason that the deceased had already demonstrated. The deceased’s comments after the suggestion made by Solicitor B demonstrated that her own reasoning process continued. It was not a case of the deceased abdicating such an important decision to any person proposed by Solicitor B. The suggestion was followed by the deceased saying that the plaintiff was “the same as [her]”, which demonstrates that the deceased did not merely adopt the suggestion but thought about it independently and agreed with it. She weighed the plaintiff’s moral claim and her view was that the plaintiff would approach the conflict in the same way as she had. (f) Dealing with the capacity to weigh the defendant’s moral claim, the deceased plainly recalled him and spoke about the defendant during the meeting. When questioned, she expressly chose not to give him anything. The deceased also demonstrated that she understood one of the consequences of excluding him, referring to the possibility of him bringing it to court (meaning a family provision claim). That establishes that the deceased appreciated the defendant had a moral claim.

232. The defendant argued that the deceased had lost the capacity to weigh the defendant’s moral claim, because she appeared to have no appreciation of his devotion to the deceased over the years. The defendant pointed to the lack of any file note suggesting that the deceased gave any reason for excluding the defendant.

233. Recalling the authorities (see [52] above), the concern is not whether the deceased should have weighed the defendant’s moral claim differently. The concern is whether the deceased demonstrated a lack of capacity to recognise moral claims and, if more than one, to weigh them and choose between them.

234. The deceased had, in at least December 2019 and in August 2020, expressed the view to others that the people she wanted to benefit were her six children. She again expressly said that in the conference on September 2020. The deceased also had a consistent view, again expressed on multiple occasions, that the defendant had sufficient assets, with the consequence that she did not need to benefit him. One month before she executed the Last Will, her view was that even if she gave her children $1.5m - $2m each in her lifetime, the defendant would still have “more than enough”. This demonstrates the deceased’s capacity to weigh the defendant’s claim to her assets and to choose at that time. In the intervening period between 24 August and 25 September 2020, that capacity did not change.

235. It must also not be forgotten that during the conference and immediately prior to the deceased giving instructions about her will, the defendant’s solicitors had sent a letter with a number of requirements, including demanding that the money in the deceased’s Westpac account be jointly held so that any further withdrawals required an authority from both parties, and the discussion in response to that letter dealt with a number of assets held by the defendant, including $330,000 worth of CBA shares held in the defendant’s sole name and cash holdings of over $600,000. I do not consider that someone who has just left her husband – and who receives a solicitor’s letter during the conference gearing up for divorce proceedings with an asset split looming – needs to expressly explain why she is preferring to benefit her children in her will to demonstrate capacity to weigh those competing moral claims. To the extent that the defendant’s total exclusion from the Last Will might be perceived by him as unfair or unjust, looking at the totality of the circumstances, there was a reasoned basis for that outcome, in that it was due not just to the fresh circumstances of separation between the pair but to the deceased’s view that the defendant had sufficient assets. Whether that view was ultimately fair is outside the scope of this proceeding. It suffices to find that such view was not due to a lack of any capacity on the part of the deceased.

236. Finally, the intrinsic terms of the will were consistent with a choice made rationally, being for all of the deceased’s children to continue to benefit from the distribution of profit arising from the family business. Contrary to the defendant’s view expressed in the witness box of that being a “delusional perspective” it was in fact the perspective of a mother of a blended family, who loved her children equally.

Any cognitive impairment did not render the deceased unable to dispose of her property on 25 September 2020

237. The final aspect of assessing testamentary capacity is to consider whether there was any cognitive impairment operating on the deceased which impaired her testamentary capacity as at 25 September 2020. This issue cuts across the deceased’s capacity with regard to each of the matters just discussed. I have considered the position from the perspective of whether there was an underlying neurodegenerative cognitive condition and also whether the pharmacotherapy used to treat the deceased’s other physical and mental conditions impaired her testamentary capacity on that date.

238. The discussion below deals with: (a) The medical evidence; (b) The expert evidence reviewing the medical evidence; and (c) The lay evidence and the various matters raised by the defendant as being demonstrative of cognitive decline to such a degree as to interfere with testamentary capacity.

239. I accept that prior to September 2020: (a) The deceased had a longstanding history of anxiety and depression, an eating disorder and severe lung disease; (b) As a young woman, the deceased had also been diagnosed with ADHD; (c) The deceased experienced some cognitive decline commencing from approximately 2018 and covering the period in which the Last Will was made; (d) During this period, there were occasions when the deceased was confused or experienced delusions; (e) The nature of the cognitive decline included some impact upon the deceased’s memory; (f) Other aspects of the deceased’s mental condition, manifesting in anxiety and panic attacks, required heavy medication; and (g) The point at which the cognitive decline developed into dementia is somewhat equivocal.

The medical records established some cognitive decline

240. The reason I accept the deceased exhibited cognitive decline to at least some degree is because it was concerning enough to the deceased to warrant reporting and investigation in July 2020 (as per the evidence of Dr Clarke), and for the plaintiff to say in December 2019 that her mother experienced memory loss when she was suffering a panic attack (see [107] above).

241. Without traversing every file note and clinical record, the more pertinent medical records around the critical 25 September 2020 date were as follows: (a) In July 2020, the deceased’s general practitioner, Dr Clarke, referred the deceased to a number of specialists for different opinions: (i) Associate Professor Jeffrey Looi (Head of the Academic Unit of Psychiatry & Addiction Medicine, ANU Medical School; Senior Staff Specialist, Older Persons Mental Health Service); (ii) Dr May Matias, Psychiatrist; (iii) Dr Fatma Lowden, Psychiatrist; (iv) Dr Dinesh Arya, Specialist Psychiatrist; (v) Dr Murali Reddy, Psychiatrist; (vi) Dr Emma Adams, Psychiatrist (specialising in anxiety disorders); (vii) Dr Ildiko Lorincz, Psychiatrist; and (viii) Pauline Allingham, Psychologist. (b) When referring the deceased, Dr Clarke used language such as: [The deceased] has been a very successful accountant and business woman and is finding difficulties adjusting to her physical and cognitive decline. (c) Dr Clarke’s unchallenged evidence was that this was not because of any observations she had made personally, but rather because of the deceased reporting to her that she was not feeling “as sharp” as she used to be. (d) Of those specialists, relevant medical opinions were provided to Dr Clarke by Ass. Prof. Looi, Dr Lowden, Dr Arya and Ms Allingham. (e) On 24 July 2020 the deceased saw Ass. Prof. Looi, who reported her to be visibly tremulous and anxious. She became more relaxed during the consultation. There was no evidence of thought disorder or perceptual disturbance (such as hallucinations or delusions), nor evidence of risk issues. (f) On 28 July 2020, the deceased saw Pauline Allingham by herself. The clinical notes record a family tree, revealing that the deceased had sufficient memory to recall her children and husband, siblings and parents and the defendant’s parents. There was enough detail as to family history and present complaints and recent events that she had found traumatic to indicate that the deceased was lucid. (g) On 14 August 2020, the deceased saw Dr Arya. Her opinion recorded that the deceased was the only informant available that day and was able to give her a reasonable account of her concerns. She told Dr Arya that she had difficulty recalling things from her past. There were some gaps in the history. The deceased had a mild slurring of speech. She was anxious but was reported to have good range and reactivity of affect. There was no inappropriateness in her mood or behaviour. The deceased was not experiencing any delusions of hallucinations or any other disorder of thought or perception. (h) On 14 August 2020, the deceased also saw Dr Lowden, with clinical notes suggesting that she saw Dr Lowden again on 20 August 2020 and on 25 August 2020. On each of 20 and 25 August, Dr Lowden’s notes record that the deceased was anxious and distressed. The notes on 25 August 2020 record that the deceased had woken up crying the night before. Following a full psychiatric assessment including physical neurological examination, cognitive testing (on 20 August 2020) and organising investigations, Dr Lowden’s view was that the deceased’s cognition was severely impaired. It appears that the deceased last saw Dr Lowden on 1 September 2020, with the defendant on that occasion, before she cancelled a number of appointments and ultimately did not see Dr Lowden again. Dr Lowden’s recommendation during that last appointment was for the deceased to be admitted to a psychiatric facility for a period of about two weeks to be tested and monitored, with a view to identifying suitable medications for her condition. Neither the deceased nor the defendant wanted that to occur, and it can be inferred that the ceasing of the clinical relationship was a result of an intentional decision by the deceased, and not her forgetting appointments. (i) On approximately 4 September 2020, the deceased developed a chest infection. (j) On 16 September 2020, the deceased attended her general practitioner seeking a referral for assessment for cannabis-based products as an adjunct to her treatment for anxiety and panic attacks. The general practitioner recorded her current medications as including: (i) Augmentin Duo Forte (for the chest infection); (ii) Diazepam; (iii) Erythromycin; (iv) Lithium; (v) Nuelin; (vi) Trelegy Ellipta; and (vii) Valdoxan. (This is broadly consistent with the defendant’s list of medications, which he emailed to five out of the six adult children on 25 September 2020.) (k) On 23 September 2020, the relevant clinic prescribed Entoura Hemp Oil drops 20% CBD (less than 0.2% THC) oral solution. (l) On 6 October 2020, the deceased saw Ms Allingham again and discussed her separation from the defendant. The notes recorded that occurred “a week ago”. She told Ms Allingham that she had put up with the defendant’s verbal abuse for approximately a year and later said that he was controlling. At the time the police moved him out, the defendant had blocked the phones between the deceased, the plaintiff and Simone. The notes further record the deceased saying she was able to tolerate his verbal abuse but not his disconnection from Sharon. (m) On 20 November 2020, the deceased met with Dr Arya. It was noted that her concentration had deteriorated, and that the deceased was now also quite forgetful. One of the ways this manifested was in her sense of time. In that consultation, the deceased referred to separating from the defendant two weeks ago when in fact it occurred two months ago. (n) On 23 November 2020, the Aged Care Assessment Team performed a Mini Mental State Examination (MMSE), with the deceased scoring 29/30, which was a normal score. (o) The deceased saw a number of medical professionals between October 2020 and February 2022. In November 2021, she was hospitalized with an infection associated with her COPD. The infection appears to have contributed to a delirium, which in term caused an acute deterioration in cognitive function. During her hospitalization in November 2021, the deceased saw Dr Murphy, a psychiatrist, who diagnosed her with delirium and noted “She does not have capacity to make decisions at present in relation to financial or legal decisions.” (p) In December 2021, the deceased saw a neuropsychologist, Ms Zucco. Tracing through Ms Zucco’s cognitive assessments and reports, as the two expert witnesses did, it can be seen that the deceased was suffering cognitive impairment and that she improved over the course of seeing Ms Zucco. Ultimately on 1 February 2022, the assessment of the deceased resulted in a diagnosis consistent with an underlying neurodegenerative process, or consistent with dementia.

The expert medical evidence confirms cognitive decline but not lack of testamentary capacity

242. The court had the considerable assistance of each of Professor Ryan for the plaintiff, who was the Clinical Lead Consultation-Liaison Psychiatrist at St Vincent’s Hospital in Sydney (among other things), and Professor Caplan for the defendant, who was the Director of Geriatric Medicine at Prince of Wales Hospital (also among other things).

243. I have accepted the view of Professor Ryan that the broader evidence indicates that the deceased was not suffering delusions (in either sense of the usage of the term) on 25 September 2020. Whether or not the deceased’s cognitive decline had developed into dementia on 25 September 2020 is less certain. On balance, I tend to agree with Professor Ryan that the deceased did not have dementia on 25 September 2020. However, as the authorities above confirm, it is not essential that I make a finding about that because the question is not whether the deceased had any cognitive impairment or had dementia, but whether any cognitive impairment operated on the deceased’s testamentary capacity at the time the deceased gave instructions and executed the particular will. Accordingly, I have proceeded on the more limited basis that assumes the deceased did have a form of neurodegenerative disease, such as dementia in the early stages. Even on that basis, I concluded that whatever cognitive decline the deceased did have, it did not impact upon her testamentary capacity on 25 September 2020.

244. To explain that conclusion, it is necessary to examine what each expert said about the deceased’s medical condition and cognitive state. Each prepared a comprehensive report conducting a detailed review of the medical records before and after the Last Will was made. There was also a joint expert report, and the experts were then each cross-examined on their views about what inferences to draw from the suite of medical information before them and the various reports of the deceased’s conduct. This included the causes for delirium and memory loss, how an episode of delirium impacts upon cognition, the effect of medication such as benzodiazepines on cognition and in potentially bringing on episodes of delirium, and the efficacy and appropriateness of a number of different cognitive tests, with varying levels of accuracy in terms of diagnosing a degenerative cognitive disease such as dementia.

245. By way of a brief summary of the competing views, Professor Caplan’s view was that: (a) The deceased suffered prolonged cognitive impairment dating back to before the Last Will was made. (b) The evidence from the contemporaneous medical records “is enough to say that she definitely lacked testamentary capacity in August 2020”. (c) However, he later acknowledged that it was impossible to say precisely in retrospect when the deceased’s capacity became so affected that it was completely compromised.

246. Professor Caplan’s view was that it was unsafe to make a will after August 2020 without a medical capacity assessment or medical advice about capacity. It was unsafe to assume retention of high-level decision-making capacity where there was evidence of cognitive deficits. I agree with Professor Caplan, in that with the benefit of hindsight and the full extent of the medical evidence, the prudence of seeking medical advice about capacity at the time the Last Will was in contemplation is clear and the task before the court is more difficult here because that step was not taken. However, it does not follow from the lack of such medical advice at the critical time that the deceased lacked testamentary capacity.

247. Of the plethora of medical evidence, the records that provided the greatest support for Professor Caplan’s view that the effect of the material indicated that the deceased lacked high level decision making because of loss of executive function were Dr Lowden’s investigations over 14 August to 1 September 2020, the opinions of Dr Murphy (a psychiatrist who saw the deceased during a hospital admission over 27 November to 7 December 2021), and Dr Zucco (a neuropsychologist who conducted testing on 3 and 6 December 2021 and 1 February 2022 and the results indicated mild dementia).

248. Dealing with the December 2021 period first, the reason for the deceased’s admission to hospital was due to an acute exacerbation of her COPD condition in November 2021, which included reports of confusion and cognitive decline, and a diagnosis of delirium at that time. Those investigations were carried out more than a year after the Last Will was executed and after a physical medical event that had occurred in November 2021. Further, due to the nature of dementia being a progressive illness, it was accepted by the medical experts that the deceased’s cognition in September 2020 would have been superior to that in February 2022. My view is that those investigations can provide no reliable indicator of the deceased’s testamentary capacity in September 2020.

249. Dealing with August 2020 and Dr Lowden’s assessment, this was a significant record, as it involved cognitive testing one month before the Last Will was executed. However, Dr Lowden’s provisional diagnosis was mood disorder, not cognitive decline or any neurodegenerative disease, although she referred to cognitive decline in the deceased’s background. There was a suggestion that the initials “A.D” followed by a question mark in the notes were a reference to Alzheimer’s Dementia. Professor Ryan read those initials as referring to a possible anxiety disorder. Dr Lowden did separately question dementia, but as Professor Ryan pointed out in his report, that was not her settled view.

250. Further, when regard is had to the evidence of what was occurring in the deceased’s life at that time, the period when Dr Lowden saw the deceased was a period of high anxiety and emotional exhaustion for the deceased, which was the reason the deceased was referred to Dr Lowden. Dr Lowden saw the deceased on 14, 20 and 25 August and 1 September 2020. The deceased was teary on most of those occasions with records of lack of sleep (attributed by the deceased to her respiratory problems), including on 20 August, the occasion when Dr Lowden conducted testing of the deceased. The notes do not reflect that Dr Lowden was given a full appreciation of the matters causing stress for the deceased in that particular period. For example, the deceased had just signed a will on 12 August 2020, the circumstances of which are discussed above and which I have accepted caused the deceased distress. The conversation where the deceased told her son Paul that she had resolved to leave the defendant occurred on 24 August 2020. That gives some context to the medical note on 25 August 2020 that the deceased woke up crying last night.

251. Professor Caplan accepted that many medical professionals had attended to the deceased’s various health complaints, including a geriatrician in 2018, and did not refer to the deceased having cognitive impairment. Possible reasons for the numerous medical professionals not investigating a condition that Professor Caplan considered to be present included that the doctors were tasked with addressing other complaints, that they may have considered it appropriate to treat the mood disorder to see whether cognition improved, that family members accompanied the deceased to medical appointments and gave history that may have masked the true extent of the decline, and because the doctors were told as part of that history that the deceased was still working as an accountant and financial planner.

252. I can see the force of what Professor Caplan was saying, in that various medical professionals are tasked with particular investigations. Someone involved in the management of the deceased’s COPD may not be alive to cognition potentially being an issue, let alone well-placed to comment on it in any report. However, the deceased saw her general practitioner (Dr Clarke) frequently enough for there to have been a referral of the deceased for cognitive investigations if there was any concern. Dr Clarke’s evidence was that she did not have such a concern and her referral and reference to cognitive decline was based on what the deceased reported, rather than any observation she made about the deceased at the time.

253. Professor Ryan’s view was that it was more likely than not that the deceased’s mental and cognitive function remained predominantly unaffected by any disease of the mind or brain until late 2021 at the earliest, when the deceased suffered a severe delirium. He accepted that as people get older, they naturally experience cognitive changes but considered there was no evidence to suggest anything other than that the general mental and cognitive condition of the deceased on 25 September 2020 was without abnormality.

254. Professor Ryan considered that the views of the psychiatric professionals who saw the deceased around the time of the making of the Last Will supported there being no dementia or neurocognitive disorder. I have dealt with his consideration of Dr Lowden’s testing and views above. Professor Ryan also placed weight on the investigations undertaken by Dr Arya, who saw the deceased alone on 14 August 2020. Professor Ryan referred to Dr Arya as an experienced and well-respected psychiatrist, who recorded the deceased being oriented to time, place and person and documented that the deceased was not experiencing any delusions or hallucinations or any other disorder of thought or perception. Professor Ryan took into account that Dr Arya continued to see the deceased in November and December 2020 and that there was no neurocognitive disorder diagnosed on either of those occasions.

255. There was also reference to other medical information, such as consultations with Dr Adesanya, but I agree with Professor Ryan’s view that these carried less weight due to timing.

256. Ultimately, I have accorded weight to Dr Lowden’s cognitive testing, but it was certainly not determinative and in light of all the surrounding medical evidence focussing on the deceased’s mental health at the time, the deceased’s cognitive test results on 20 August 2020 were really a vignette of the deceased’s condition on one day.

257. Once the deceased had separated from the defendant, the evidence indicated that the deceased’s mental state improved almost immediately. Observations to that effect were made by the police officers who attended, and by the solicitors who saw the deceased on 25 September 2020, who described the deceased as calm.

258. A further indicator of that improvement was the deceased in November 2020 having a normal score on the MMSE, namely 29/30. While the drawbacks of the MMSE were discussed between the experts, including that it does not test for executive dysfunction, Professor Ryan’s view, which I accept, is that they are simply a screening tool to rule out dementia, as a opposed to a tool for positively diagnosing dementia. The tests are a good negative indicator. Professor Caplan agreed that it would only be in a very rare case that a person would have dementia if they scored 29 out of 30 on an MMSE.

259. Accordingly, even if Dr Lowden’s view did go so far as to establish a degree of ongoing cognitive impairment, it was a view that I considered should ultimately be given less weight than the evidence of the solicitors in the room asking specific questions about the matters squarely directed to testamentary capacity.

The deceased’s pharmacotherapy did not impair her capacity on 25 September 2020

260. The deceased had a combination of pharmacotherapy to manage her various conditions, which included benzodiazepines. Professor Caplan was critical of the combination and there was a suggestion in the evidence that at the time the professionals were seeking to rationalise what the deceased was taking, including with Dr Lowden recommending to Dr Clarke on 1 September 2020 the reduction of the dosage for diazepam because of “escalating anxiety”.

261. I consider that on balance it was likely that the deceased took her medication on 25 September 2020 as prescribed. The defendant’s evidence indicated to me that the deceased knew she had to take her medication and had rung him to confirm what she needed to take. I inferred from this that her intention was to take what had been prescribed to her. The plaintiff’s evidence was also that she saw her mother take her medication.

262. Part of the pharmacotherapy was designed to affect the deceased, and to stabilise her. The concerns of the medical professionals at the time about the benzodiazepine use was directed to a use disorder. Professor Ryan considered that the deceased may have had such a use disorder. He considered each of the possible effects of under-use or over-use on 25 September 2020 on the deceased’s mental and cognitive functioning. He concluded that whatever dose the deceased had or did not have, such functioning was not impacted because: (a) Firstly, in respect of the potential for benzodiazepine withdrawal delirium, the deceased did not exhibit any symptoms of withdrawal, and in any event, the half-life of the medication was significant; and (b) Secondly, in respect of the potential for acute benzodiazepine intoxication, this would have produced symptoms similar to what had occurred previously (drowsiness, non-responsiveness, slurring of speech) on that day. The two solicitors’ direct observations of the defendant at the time did not suggest any such symptoms. For example, Solicitor B described the deceased as “very alert, bright eyed and engaged”, and that she gave answers that were “sensible and correct”.

263. The defendant argued that such evidence should be approached with caution due to general subconscious self-interest, but I accept that they were honest and accurate in their observations of the deceased, and the record of the deceased’s contributions to the conference and her instructions were inconsistent with a will-maker who was impaired by drug use to the point where she could not think clearly.

Lay evidence and other matters potentially indicative of a disorder of the mind

264. The medical experts reviewed the lay evidence for what it revealed about the deceased’s capacity and the parties dealt with those aspects in their submissions. It has been efficient to deal with these matters collectively by topics. The deceased’s capacity to work at a high level

265. There was some criticism of Professor Ryan’s opinion being based on the deceased’s ability to work or lack thereof, and the level of work she undertook. As I have explained above, I did not consider that to be a fair or reliable indicator of testamentary capacity, based on Professor Caplan’s oral evidence to that effect. However, I also read Professor Ryan’s report differently, in that it sought to deal with the lay evidence and observations of the family members, and the inconsistency in Dr Lowden being told that the deceased was still working despite the cognitive testing that suggested impaired cognition. When the totality of Professor Ryan’s evidence is taken into account, I did not read the deceased’s attendance at the office as being a matter that was of particular significance for Professor Ryan in his medical opinion.

Memory loss

266. As stated above, I have accepted memory loss as being an indicator of some degree of cognitive decline. I did not accept that it was to the extent that it supported dementia as at September 2020, or that any memory loss experienced by the deceased otherwise interfered with her capacity, for reasons given earlier in relation to the various limbs of capacity. There were two examples highlighted by Professor Caplan as constituting a short-term memory deficit particularly relevant to capacity, being her uncertainty about the transfer of shares and the signing of the August 2020 Will. However, the facts as I have found them above did not support either of those matters as indicative of a short-term memory deficit.

Erratic behaviour

267. The defendant and Jimmy gave evidence of their observations of erratic behaviour manifesting in sudden mood fluctuations. Professor Ryan discussed their observations, including that the deceased “flipped” on occasion, appearing to be “suddenly paranoid, panicking and short of breath”. His view, which I accept, was that this behaviour was consistent with the diagnosis of panic or anxiety disorder. I agree that in the circumstances of the relationship between the defendant and the deceased (discussed further below), those interactions were not indicators of cognitive impairment affecting testamentary capacity, and even if they were, the evidence of Solicitor A and Solicitor B as well as that of the plaintiff established that the deceased was not affected by such fluctuations or erratic behaviour on 25 September 2020.

Delusional or irrational thinking

268. Professor Caplan viewed the deceased’s reported conduct of delusional or irrational thinking as being consistent with dementia. His report described people with dementia as often falsely accusing their spouse or children of various offences. His report further stated that most people with dementia develop symptoms such as agitation, anxiety, hallucinations and delusions. Professor Caplan took into account the reports of delirium, delusions and of baseless allegations being made by the deceased.

269. However, the full medical picture emerging after cross-examination was that the periods of diagnosed delusion or confusion were most likely related to the deceased’s COPD, infections and hypoxia and that these were isolated episodes which resolved.

270. Further, with regard to the allegations of the deceased’s “delusional thinking”, while Professor Caplan was given the affidavit evidence of the parties as part of the material to review, he did not have the benefit of the full evidence that fell through the cross-examination of the witnesses, and the complexities of the family dynamics.

271. Having regard to the totality of the evidence, I found that the allegations against the defendant were not baseless or in the category of false accusations such as to constitute any delusional or irrational thinking.

272. The serious allegations of misconduct were first made by one of the deceased’s children, both at the time any untoward conduct was said to have occurred and then again when the issue was discussed at the end of 2019. The deceased was entitled to take the allegations seriously.

273. Even the allegation against the plaintiff of her “stealing” the deceased’s clients, while possibly unfair, was not entirely without foundation in circumstances where the deceased was struggling to come to terms with stepping back from professional work.

274. Significantly, I did not accept Professor Caplan’s opinion of what inferences to draw about the deceased’s cognition from reviewing the notes of the solicitors’ conference on 25 September 2020. Professor Caplan considered that a doubt about the deceased’s understanding existed because (among other things) the deceased referred to families breaking up due to unequal representation in wills, but then only nominated children from her first marriage as primary and secondary executors, and none of the children from her second marriage.

275. I do not consider that was irrational, once the extent of the schism that had developed in the family is appreciated. That schism made it difficult for a joint appointment to work (to use the deceased’s language). It must also be appreciated that one of the children from the deceased’s second marriage had an intellectual disability and no capacity to perform an executor’s role. The deceased did expressly turn her mind to whether Jimmy’s son could undertake the role but reasoned against that (he was only 11 at the time).

276. Professor Caplan also expressed the view that the deceased was under the influence of either children from her first marriage or a delusion when she divided the inheritance differentially. Again, such a view did not take account of the terms of the Last Will that the deceased executed and the complexities of the Trust structure. What was distributed differentially was the shares in the trustee company, and the express reason behind that was to equalise control, not to give the children from the first marriage an advantage.

Paranoia and secrecy

277. The defendant argued that the deceased exhibited paranoia and secrecy. Professor Caplan discussed how people with dementia will lose things and that will make them more secretive, compounding the problem of irrational thinking or paranoia. I accept that if unfounded, this type of behaviour can be indicative of dementia in the early stages.

278. I also accept that: (a) From 2019, the deceased developed an increasing distrust of the defendant. (b) The deceased commenced carrying a green suitcase with hard copies of financial documents she considered to be significant in it. (c) The deceased became concerned about the defendant taking documents out of her handbag, hiding pages of the Trust deed, and deleting emails. (d) The deceased did take steps to keep things hidden from the defendant including legal advice she was taking in relation to the Trust, the family business, powers of attorney she made and certain wills that she made.

279. In the circumstances here, I do not accept that such behaviour was entirely related to the deceased’s deterioration in cognition, nor that it was even irrational, without foundation, or the product of a deluded mind. To explain why, it is necessary to look at not only the deceased’s behaviour, but the context in which the deceased’s behaviour arose. When that is done, I consider that what was perceived by the defendant as paranoia and secretive behaviour was in fact a response to the defendant’s behaviour.

280. The deceased’s relationship with the defendant was evidently complicated from at least January 2019. Their love and care for each other was tested by two significant features.

281. The first was the deceased’s poor physical health and the toll that took on the defendant, and indeed the whole family. The carer’s fatigue that the defendant, and to a lesser extent other family members, experienced was like the elephant in the evidence. The deceased’s poor physical condition and her panic and anxiety attacks meant that the defendant was her carer, and the volumes of medical evidence before the court tell the story of how demanding (and at times stressful) that role was. The defendant attended many of the medical appointments and frequently drove her places (although she did obtain her learner’s permit on 4 December 2019, which of itself demonstrates a certain level of executive functioning).

282. The defendant was exhausted and, in my view, the immense burden he shouldered affected how he interacted with the deceased. He did raise his voice and speak rudely to her on numerous occasions. There are too many references to that occurring in the evidence from different witnesses to dismiss it and I do not think the defendant had any insight into how his ongoing behaviour affected the deceased.

283. One of the effects was also to generate a sense of fear in the deceased, which the deceased raised with the defendant and with others on a number of occasions. How the defendant treated the deceased at times was witnessed by, and reported to, more than one independent person. Having read the emails, the diary notes, heard the recorded conversations, assimilated the different observations of the solicitors and medical professionals and heard from the family members (including the defendant), I was not persuaded that the fear reported by the deceased was a product of any disorder of the mind or irrational belief.

284. Patent across the evidence was the defendant’s assumption of control over the deceased. The control was in large part support and care as the deceased became frailer, but some of it was a product of the defendant’s own increasing distrust in the deceased and his increasing distrust of the plaintiff. The parties have expressly not sought factual findings about any transfers or transactions that occurred and this is not a case dealing with duress. However, it is necessary to say something about the degree of control exercised by the defendant because of the competing submissions of the influence of each of the parties in respect of the deceased at different times, and the defendant’s submission that a component of testamentary capacity is a sufficient degree of mental resilience to resist external pressures, so as to intelligently weigh those competing claims, relying on Chalik v Chalik [2024] NSWSC 117 at [326], Bracher and Dickman.

285. The defendant had access to the deceased’s emails (discussed in more detail in addressing the breach of confidential information application below) and on his own admission, wrote emails on the deceased’s behalf. There was evidence that the defendant returned to the family home and viewed what documents had been accessed on the deceased’s computer while he was away. There was evidence that the defendant took things out of the deceased’s handbag and that he did on occasion take files from the deceased’s desk (even accepting he may have had innocent reasons for doing so).

286. There was also lay evidence given by a close friend as to the defendant’s relationship with the deceased. The defendant did not give the deceased and her friend privacy when they met at their home and when the friend arranged to have coffee at a café so she could talk to the deceased freely, the defendant joined and said that he had decided he would stay and have coffee with them both.

287. The deceased’s solicitors at Law Firm B witnessed aspects of that control over March to August 2020, and the deceased made express reference to the impact of the control to solicitors at Law Firm A in December 2019 and September 2020.

288. The second significant feature was undoubtedly the family resentment and growing conflict over the operation and control of the family business and the distribution of profits. Increasingly, the defendant was in conflict with the plaintiff and for whatever reason, he did not want the deceased and through her, the plaintiff, to have access or knowledge of his and the deceased’s true asset position.

289. Separately, the defendant resented the majority control the deceased had in respect of the family business. He was alarmed by the discovery that he could not benefit under the Trust because he was the settlor of it. He disagreed strongly with the defendant’s desire to benefit all her children through the Trust, which he saw as coming at his expense and which he viewed as unjust because of the work he and his son Jimmy had invested in the business held by the Trust.

290. The defendant’s own evidence was that he took important documents from the deceased after she had signed them and locked them away, that he at times refused to give the deceased access to financial material and that he worked with Jimmy away from the office because of the tension. The deceased’s conduct, which the defendant viewed as being secretive or paranoid, was a direct response to that family tension and the pressure the defendant and other family members put on the deceased concerning how the business would be managed when she died.

291. The deceased’s secretive behaviour and conduct such as printing financial documents and keeping hard copies in a suitcase was a response to the breakdown of trust with the defendant and to the pressure placed on her to act against her true intention with regard to the future of the Trust. That breakdown of trust was itself related to family friction, as opposed to cognitive impairment.

The deceased had the mental resilience to resist external pressures

292. The making of the Last Will itself demonstrates the deceased’s ability to resist the external pressure placed on her by the defendant and to a lesser extent Jimmy. However, the defendant also argued that there was a lack of resilience when it came to the plaintiff. I do not accept that this was the case. The objective evidence such as the solicitor file notes, the hand-written document given to the plaintiff in June 2020, and other accounts of family members was consistent with the deceased driving the agenda, not the other way around. The plaintiff was not in the conference when there was discussion about her being given the shares that would give her a degree of decision-making in the trustee company.

293. The frequent will-making that might otherwise have been indicative of a lack of mental resilience also had a rational basis. The defendant relied on the fact that there were many wills made over a two-year period. I do not accept that this amounted to a frenzy of will-making indicative of being pulled in different directions, or lack of capacity to choose. It was indicative of the deceased struggling to resist an uneven power dynamic in her relationship with the defendant. The defendant’s own evidence was that he requested the deceased to change her will, and his involvement in the deceased doing so was witnessed by lawyers in March 2020. The comments by Jimmy at the family mediation is a further indicator that the unhappiness about the deceased’s choices in respect of her will was a topic of open conversation among the family. The deceased was in a very difficult situation because of family conflict, primarily but not solely over the control of the business.

Conclusion with regard to the deceased’s cognitive condition and capacity

294. Taking all of those findings on the medical evidence and the lay evidence into account, I was affirmatively satisfied that the deceased was not affected by any disorder of the mind that impaired her testamentary capacity on 25 September 2020. Testamentary capacity of the deceased on that day has been established, and it remains to consider whether the deceased knew and approved of the contents of the Last Will.

The deceased had knowledge and approval of the Last Will

Principles applying to the determination of whether the deceased had knowledge and approval of the Last Will

295. The legal principles relating to knowledge and approval were addressed by the Court of Appeal in Pastrello at [13]-[16], setting out the main considerations from reasoning of the primary judge. I have again relied on both those authorities, as well as those drawn to the court’s attention in the submissions of the parties in what is set out below, including Lewis v Lewis [2021] NSWCA 168; 105 NSWLR 487, where the source of the knowledge and approval requirement and the effect of reading a will to a capable testator was discussed comprehensively by Leeming JA at [130]-[150].

296. Evidence relevant to testamentary capacity is also relevant to knowledge and approval: Veall at [185]. Where there are no circumstances exciting a suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, proof of testamentary capacity and of due execution creates an assumption that the testatrix knew and approved of the contents: Nock v Austin [1918] HCA 73; 25 CLR 519 at 528. This was explained by the Victorian Court of Appeal in Veall (referring to Tobin among other authorities) at [169]: Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.

297. However, similarly to the position with regard to testamentary capacity, if there are circumstances that give rise to a doubt or suspicion, clear and satisfactory proof is required that the testatrix knew and approved of the contents of the document: Nock at 528. Vigilance is again required in seeing that the testatrix’s appreciation and approval of the contents of the will is fully proved, but the existence of doubt is not a disqualification: Nock at 528.

What constitutes knowledge?

298. As to what constitutes evidence sufficient to allay the court’s suspicion and affirmatively prove knowledge, that depends on the circumstances that made the execution of the will suspicious: Veall at [172].

299. Proof that the will was read by or read to the testatrix before its execution is strong evidence of knowledge and approval but may not be sufficient; nor may evidence that the will was explained to the testator: Veall at [176]; Lewis at [147]-[150] per Leeming JA (Meagher and Payne JJA agreeing).

300. A similar statement (approved in Veall at [179]) was made in Tobin, where Meagher JA stated at [47]: Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523– 524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42].

301. Generally, knowledge of the contents of the will includes understanding its effect. As Leeming JA stated in Lewis at [170]: The probate court’s vigilant and jealous scrutiny will not greatly be allayed by demonstration that a capable testator whose knowledge and approval is in question knew the contents of the will, but failed to understand its effect.

302. His Honour was careful to confine any general principle to the circumstances arising in the case before the New South Wales Court of Appeal, namely where a person plays a part in the preparation of a will and takes a substantial benefit: Lewis at [186]. Further, his Honour went on to say at [187]: It will be sufficient if the testator is shown to know and approve the gravamen of the will.

303. Those principles are sufficient to deal with the present dispute.

A doubt about the deceased’s knowledge and approval of the Last Will existed

304. Here, I have found that the deceased had sufficient testamentary capacity and the Last Will was duly executed, which is sufficient to create the presumption. Again though, there was sufficient doubt about whether the deceased knew and approved the contents of the Last Will to require that such knowledge and approval be affirmatively established. The same issues that were significant in respect of testamentary capacity were equally relevant to the deceased’s knowledge and approval. Matters that were cause for concern include: (a) The deceased’s mental and physical condition at the time; (b) The involvement of the plaintiff and the circumstances in which the meeting with the solicitors on 25 September 2020 was brought about; (c) The process by which the Last Will was prepared, which involved using an earlier precedent (namely the December 2019 Will) and amending it, rather than having the deceased give full instructions again; and (d) The lack of clear and detailed records as to what the deceased knew in terms of the contents of the Last Will and its effect.

305. As with testamentary capacity, those circumstances were sufficient to create a doubt about the deceased’s knowledge and approval of the contents of the Last Will, requiring vigilant examination of what the deceased knew and understood at the time she executed the Last Will.

The deceased’s knowledge of the contents of the will and approval of it is affirmatively established

306. The necessary scrutiny of the material before the court giving the full circumstances overlaps with the evidence discussed above on the question of testamentary capacity.

307. Again, it is clear when regard is had to the precautionary measures recommended in Ryan at [106]-[108] (and extracted above) that they were not followed, in that the solicitor read the provisions to the deceased and sought her assent, rather than (for example) getting her to tell him in her own words her understanding of each clause and making a file note of what she said.

308. However, that best practice was not followed during the solicitor’s conference is not fatal to the validity of the Last Will because it does not automatically follow from what occurred that the plaintiff has not proved the deceased’s knowledge and approval of the Last Will.

309. I have concluded that the deceased did know of its contents and effect, and that she approved of the contents, which she then confirmed by executing the document.

310. First, I have given weight to the fact that the solicitor who took instructions on the will (Solicitor B) then also gave the will to the deceased to read on the same day. There was no evidence here that any of the deceased’s conditions affected her ability to read.

311. Second, I accept that the solicitor then explained the clauses of the will to the deceased in general terms and that the deceased indicated her assent by saying “that’s fine” to each clause that was explained, because there is a contemporary file note by Solicitor A of that occurring. The file note makes specific reference at this point to the named trustee of Sharon’s trust being the plaintiff which indicates that the deceased understood both: (a) The distribution to Sharon would be by way of a trust; and (b) The plaintiff would be the trustee of that trust.

312. Applying the authorities, that by itself is not conclusive. There is a difficulty with the file note simply referring to every clause being explained, as opposed to making a record of each clause as it was explained and what explanation was given. It is true that the deceased was not requested to explain back what her understanding of each clause was and a record made of what was said. However, the explanation and confirmation of each clause remain significant and there was solid evidence that this occurred.

313. Third, the deceased’s understanding and approval of the contents of the Last Will is further demonstrated from the things that the deceased said during the taking of instructions shortly before the will was presented to her to read, and the fact that the contents of the document was shown to reflect those instructions. This is seen from the file notes recording the following: (a) On the appointment of executors, the deceased chose the plaintiff and then Paul, Mark and Simone as the alternative. (b) She confirmed her awareness that Sharon would not have the capacity to understand the implication of her decisions. (c) On the distribution of assets, the deceased chose to leave the estate as a whole to the children in equal shares. She was prompted as to whether she wished to include the defendant. She confirmed nothing for him. (d) On the 100 shares in the trustee company, she confirmed not to give those shares to the defendant and agreed that they should be given to the plaintiff. Such agreement occurred in the context of Solicitor B explaining to her that this would give the plaintiff 50% control of the trust.

314. I am affirmatively satisfied that the deceased understood the effect of what she was doing in nominating the plaintiff as beneficiary of the shares in ABM; that is, she was giving the plaintiff 50% control of the Trust. The handwritten notes of Solicitor A record “Neil & Neil” on one side of a vertical line and “Yvette” on the other. I accept that the deceased may have had assistance from Solicitor B in making that decision, but that does not mean the deceased did not know what she was doing.

315. That is reinforced by the recap of the deceased’s instructions that immediately followed. On this point, the words recorded are “we give control of the company to [the plaintiff]”. That indicates that the solicitor had confirmed with the deceased that she understood the effect of nominating the plaintiff and agreed with it. In light of her previous discussion as to the issues with control by the defendant and Jimmy, the deceased knowingly made a careful choice designed to permit all her children to continue to derive benefit from the profitable family business that was so close to her heart.

316. Separately in relation to clause 12 of the Last Will, the defendant submitted that there was no evidence suggesting the practical effect of that clause was ever discussed, much less understood by the deceased. Clause 12 was a direction to equalise benefits, which was in the following terms: It is my intention to treat my children equally. In the event that one of my children receives a greater benefit from me during my lifetime or from assets outside of my estate, I wish my executors to deal with my estate assets in such a way as to ensure equality between by children (and grandchildren if any of my children have died before me). To that end, I give the following directions to my executors: (a) For the purposes of this clause, my executors must deem as part of my estate: (i) any sums of money which may be due to me at the date of my death by a child or grandchild of mine; and (ii) any superannuation and life insurance entitlements, proceeds or benefits arising from an entitlement caused by my death paid directly to a child or grandchild or mine; and (iii) the balance of any unpaid present entitlements and beneficiary loan accounts owing to a child or grandchild of mine from Leslie Family Trust and any other trust in which I had an interest prior to my death. (b) I direct my executors to make an adjustment for such payments referred to in paragraph (a) upon the division of my estate.

317. Clause 12 was in identical terms to clause 11 of the December 2019 Will. The solicitor’s conference on 9 December 2019 included the deceased explaining various distributions that had taken place, including a technical distribution to the plaintiff. The clause itself was a product of the deceased’s expressed intention to treat all her children equally, as evidenced by the conversation between Solicitor A and Solicitor T on 10 December 2019. I have accepted the clause was explained to the deceased in December 2019 and I find that the deceased understood its effect from that date.

318. I have also accepted Solicitor A and Solicitor B’s evidence that Solicitor B explained every clause, which includes clause 12. The deceased referred in the September 2020 conference to the use of unpaid present entitlements in the trust distributions which were used, for example, to fund the payment for the Redfern properties. She referred to not having access to the financials, and later referred to Jimmy receiving a beneficiary distribution of $850,000-$950,000. In those circumstances, the maintenance of the equalising clause in the Last Will is unsurprising. No change to that clause was required as the deceased’s instructions of equality between her children remained the same. Having regard to the deceased’s discussions over December 2019 and September 2020, I am satisfied that when she read the Last Will before signing it, she well understood the effect or gravamen of that clause for her children, perhaps better than the solicitors.

319. The defendant submitted that there may be considerable complexity in how the equalisation clause would be enforced by the executor. There is force in that submission, in that there is likely to be a complexity in the administration of the estate in accordance with the terms of the Last Will. However, that is a different matter from the deceased understanding the gravamen of the clause. The defendant’s submission put the hurdle beyond what was required for a demonstration of the deceased’s knowledge and understanding of the contents of the Last Will. The meaning of the clause and the practical difficulty that might arise for those implementing it are two different things.

320. The defendant also complained that there was no evidence suggesting anyone asked the deceased to explain her rationale for excluding the defendant from her will and that the terms of the will referred to leaving a 1/6 share in her residuary estate to “Neil”, who was defined in a separate clause pages earlier in the will to mean her son, Jimmy.

321. The deceased expressly instructed her solicitors to leave the residual estate to her six children equally. She expressly stated that she wanted to give nothing to the defendant. The terms of the will reflected those express instructions. There was a clear definition in the will as to “Neil” meaning Jimmy and I have accepted that the deceased read the will. I am affirmatively satisfied that the deceased knew she was signing a document that th gave 1/6 of the residuary estate to her son and not to the defendant.

322. Bringing all this together, I find that the evidence was sufficient to affirmatively prove that the deceased knew the gravamen of the contents of the Last Will and approved of it. The consequence is that the Last Will is valid and will be admitted to probate. As I have said, that conclusion makes it unnecessary to deal with the other earlier wills that were propounded.

The application to restrain a breach of confidence and objection to admissibility in respect of emails obtained by the plaintiff

323. I have dealt with this matter last, as it ultimately had no bearing on my assessment of whether the Last Will was the final will of the deceased. An issue arose during the hearing concerning emails obtained from the deceased’s computer. I indicated to the parties I would deal with the matter as part of the substantive reasons.

324. During the course of cross-examination of the defendant, he was shown and questioned about an email sent by him in February 2020 to a solicitor from a joint email account accessed by the deceased and the defendant. The email (marked MFI 5 in the proceeding) contained instructions for the preparation of documents including a power of attorney for the defendant, a will for each of the deceased and the defendant, and a power of attorney for Sharon.

325. Upon the plaintiff’s counsel seeking to then tender the email, the defendant’s counsel objected on the basis that the evidence was not lawfully or properly obtained. The allegation was that the plaintiff had accessed the defendant’s personal email account without his permission.

326. Subsequently, the defendant brought an application in proceeding, seeking to restrain the use of the material obtained. The basis for seeking such a restraint was an equitable breach of confidence. The relief included an order that the plaintiff deliver up all information in her possession, custody or control (in whatever form and including any copies) obtained or derived by accessing, viewing, extracting, copying and/or downloading data from two email accounts. He also sought orders that the plaintiff provide details of who, when and by what means she had provided any material or data arising from the email accounts to, and identify how and when this material had been used.

327. The application had broader ramifications than this proceeding as the parties were also involved in family law proceedings.

328. The issues for determination are: (a) Whether there was a breach of confidence by the plaintiff in accessing certain emails, and if so, the terms of any restraint required; and (b) Whether the email forming part of the challenged material was admissible in this proceeding, including consideration of any potential exclusion pursuant to s 138 of the Evidence Act.

Applicable principles

329. The relevant starting point for consideration of the application is that equity will restrain the publication of confidential information improperly or surreptitiously obtained or information imparted in confidence which ought not to be divulged: Lord Ashburton v Pape [1913] 2 Ch 469 at 475; Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; 147 CLR 39 at 50.

330. The criteria to establish a case for protection in equity of alleged confidential material were helpfully explained in Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598 at [456] – [459] as follows: (a) The information in question must be identified with specificity; (b) The information must have the necessary quality of confidence; (c) The information must have been received in circumstances importing an obligation of confidence; and (d) There must be an actual or threatened misuse of the information without consent. The identification limb

331. This preliminary criterion requires the defendant to identify information with sufficient specificity for the court to be able to make an assessment of whether the material is in fact confidential: Streetscape Projects (Australia) Pty Ltd v City of Sydney [2013] NSWCA 2 at [158]. It is necessary for the court to identify what information the plaintiff should be restrained from using where injunctive relief is sought: Carindale Country Club v Astill (1993) 42 FCR 307 at 214 – 315.

Establishing the confidential quality of the information

332. There is no one absolute test for determining whether information is confidential, and the question is one of fact and degree: Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd (No 8) [2022] FCA 1404 at [258]. Information can be taken to be of a confidential nature if it is not public property and public knowledge: Coco v A N Clarke (Engineers) Ltd [1969] RPC 41 at 47.

333. The fact that information that was confidential when obtained has later entered the public domain means that its confidential quality is lost: Streetscape Projects at [162] per Barret JA. “Public domain”, for this purpose, means “no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential”: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 282. Evidence given or tendered in an open court proceeding has been held to fall into this category: Isaac v Dargan Financial Pty Ltd [2018] NSWCA 163; 98 NSWLR 343 at [174].

334. In addition to commercially sensitive information and government information, the equitable protection of confidential material has also been invoked to restrain the unauthorised publication of personal or private confidences: Sullivan v Scladers & Goldwell International Pty Ltd [2000] SASC 273; 77 SASR 419 at 428.

Establishing the material was received in circumstances importing an obligation of confidence

335. If the material does have the necessary quality of confidence, the third limb then asks whether the communication of the confidential information imported an obligation of confidence. Again, there is no single test for determining when those circumstances exist: Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd [2009] FCA 1220; 261 ALR 501 at [634] per Finn J. There are two general ways in which receipt of the material in confidential circumstances may be established. The first is in circumstances where the obligation of confidentiality is based on contract or a special relationship (e.g. the traditional status-based fiduciary relationships). The second is where an obligation of confidence arises based on the circumstances as a whole surrounding the receipt of the information: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40.

336. Factors which may be relevant to the question of whether information is received in circumstances importing an obligation of confidence have been set out in Filby v TEG Live Pty Ltd [2023] NSWCA 320 at [125]. The relevant ones for the present circumstances are: (a) Whether the information was supplied for a limited purpose; (b) How sensitive the information is; (c) Whether the confider has any interest in the purpose for which the information is to be used; and (d) Whether the confider gave any express warning against a particular disclosure or use of the information.

Establishing breach of the obligation

337. This final limb involves the actual or apprehended use of the information in a manner which is unauthorised: Talbot v General Television Corp Pty Ltd [1980] VR 224; [1981] RPC 1; Seager v Copydex Ltd [1967] 2 All ER 415; RPC 349; Vasco Investment Managers Ltd v Morgan Stanley Australia Ltd [2014] VSC 455; 108 IPR 52 at [291].

There was no breach of confidence

338. The plaintiff affirmed an affidavit deposing to what occurred to bring emails sent by the defendant into her possession, read on the voir dire. I accept the contents of the affidavit as being the true circumstances of what occurred. The circumstances are as follows: (a) Prior to their separation, the defendant and the deceased shared an email account. While the deceased had her own email address, many people used the email address of the defendant to send things to the deceased and anything sent to the deceased’s address was received into the same shared inbox. (b) The deceased had a personal computer that she kept at her home. (c) In the week following her separation from the defendant on 22 September 2020, the plaintiff was staying with her mother at the deceased’s home. The deceased said to the plaintiff: There are things missing in the inbox. I know there were emails there but they are gone. I think emails have been deleted. (d) The plaintiff recommended to the deceased to make a backup of her emails. The deceased then did this with the help of her grandson (the plaintiff’s son). The backed-up emails were saved onto a USB drive and the deceased then handed the USB stick to the plaintiff, saying “Keep it safe”. (e) On 29 September 2020, the deceased attempted to send an email but was unable to send or receive emails from the usual email addresses. (f) In November 2021, the deceased gave the plaintiff her computer. She said words to the effect of “This is going to be important. You need to make sure it is kept safe”. The plaintiff took the computer and the deceased’s grandson again assisted in backing up the contents of the computer onto a hard drive. The plaintiff has been in possession of the material stored on the deceased’s computer since that time.

339. The defendant argued that such actions were in breach of confidence. However, on those facts, I find that there was no breach of confidence here because: (a) At the time the downloading of the emails occurred, the joint email account was knowingly used by the defendant and the deceased with each other’s consent; and (b) The circumstances in which the plaintiff came to possess the information, namely with the authority of the deceased, included possession for the purpose of use in the event of dispute.

340. First, I consider the information was identified in the application with sufficient specificity to enable consideration of the application. Although the defendant was not able to understand the full extent of the material absent disclosure or discovery processes, in the urgent manner in which the issue arose, the plaintiff assisted by affirming an affidavit deposing to what she had obtained and the circumstances in which the material came into her possession. The material the subject of challenge is readily identifiable (the emails are separately stored on a USB stick and on the deceased’s computer).

341. Second, the shared nature of the material is significant in assessing whether it was confidential and if so, whether it was the subject of any actual or threatened unauthorised disclosure or use. The defendant also gave evidence that each of the deceased and the defendant would access emails which had been specifically addressed to the other. Despite the email address being in the defendant’s name, the email account was used jointly by the defendant and the deceased. The defendant knew his wife used the account and considered that email address to be equally hers. There was evidence that she gave out that address to solicitors when they expressly sought clarification of what email to use when there was a concern about withholding certain information from the defendant.

342. Further than that, the evidence in the proceeding established that the defendant would send emails on the deceased’s behalf and may have at times assumed agency to do so. I find that there was at least implied consent to use the account and that the information passing through the account in the form of the emails was properly to be viewed as the joint property of the deceased and the defendant, on the basis that they did not keep those matters secret from each other. Part of the evidence given by the defendant included his diary note made on 18 August 2019: Mary having not read any emails for over a year decided that she should have 12 months of emails on her home computer. I said it would have to be worked out with Jimmy as to how it could be done.

343. That discussion was had a couple of months before the first time that the defendant and the deceased separated in December 2019, but it is telling that the defendant did not prevent that from occurring. In making a copy of the information for her own record keeping purposes and use a year later, the deceased was merely accessing information that the couple treated as their joint information. She did not access the information unlawfully or improperly.

344. That means the material in this case can be distinguished from cases such as Tchenguiz v Innerman [2010] EWCA Civ 908; [2011] 2 WLR 592. In that case, a wife was ordered to return confidential financial documents which had been extracted from her husband’s computer. The circumstances of the breach of confidence were that the wife’s brother accessed the husband’s computer without his permission, and copied information and material stored there.

345. The position here is different because the defendant’s emails were contained within the shared email account and did not have the necessary quality of confidence as between the deceased and the defendant.

346. Third, there was nothing to suggest there was any limit on the deceased’s access. In hindsight, the defendant may have come to regret the fact that he and his wife shared an email account and had joint access to all emails, but the trust in the marriage at the time was such that there was no prohibition on the deceased using the information for her own purposes, including sharing information obtained with her daughter.

347. Fourth, the evidence of how the plaintiff came to receive the USB stick containing the emails indicates that the circumstances did not import an obligation of confidentiality that would prevent their use in the present proceeding. There was no relevant contractual or special relationship between the defendant and the plaintiff, nor between the deceased and the plaintiff. The circumstances as a whole surrounding the receipt of the information did not establish that an obligation of confidence arose. This was a personal family relationship that was breaking down and the deceased was seeking to protect the record in case she needed it in the event of a dispute. The unchallenged evidence of the plaintiff was that the deceased expressly authorised her to download the material, and while she told the plaintiff to keep the information ‘safe’, the deceased at no time expressed to the plaintiff that she should keep the information confidential, nor could that be implied from the circumstances. On the contrary, after separating with her husband, the deceased was concerned about the emails in the joint account going missing and wished for her daughter to keep the copies of those emails.

348. Finally on this point, even if the emails were supplied to the plaintiff for a limited purpose (for example, to keep but not to read), I consider that use in this proceeding falls within that purpose. Separation proceedings were on the cards at that time, the deceased and the defendant were lawyering up, and the deceased had named the plaintiff as her power of attorney and was to name her as the executor in her will around the time she gave her the USB stick with the emails. The deployment of one of the emails in the present litigation is by the plaintiff in her role as the putative executor of the Last Will.

349. Accordingly, no actual or threatened misuse of the confidential information has been established. There was an alternative pathway arising on the basis that the substance of the information was disclosed during the court proceeding by the defendant without objection and was therefore in the public domain. However, the findings above mean that recourse to that line of argument is unnecessary.

The email is admissible

350. Those findings influence, but do not determine, the question of admissibility of MFI 5 in the proceeding because the defendant objected to the tendering of the document, not only on the basis that it was improperly obtained, but further because it was subject to joint client legal privilege, being correspondence to a solicitor. Counsel for the defendant further argued that given the communication was not that of the deceased, it was not directly relevant to her capacity or testamentary intentions and therefore lacked probative value. The probative value of MFI 5

351. I accept that the email itself shed no light on the deceased’s testamentary intentions, or knowledge and approval in relation to the Last Will. That is why this issue does not form part of the substantive discussion of the evidence on that matter above. However, the email itself did have probative value in respect of other matters which may have become relevant had the Last Will not be proven.

352. On its face, the email contained instructions given by the deceased to the defendant in February 2020 about the need to draft a will at that time (recalling that the alternative will being propounded by the plaintiff was executed in December 2019) and among other things, the creation of a power of attorney document appointing the deceased as attorney for the defendant. The defendant gave lay evidence of his observations of the deceased and her deteriorating cognitive condition. The probative value of MFI 5 was directed both to the deceased’s capacity to make a will at the time and to the defendant’s view about the deceased’s capacity to execute testamentary documents at that time, which may have been contrary to his position in this proceeding that the deceased lacked capacity in December 2019. That was the point of the cross-examination.

353. I find that the evidence had sufficient probative value to be admissible in the proceeding, subject to the other objections made.

The email was subject to joint legal privilege

354. Section 118 of the Evidence Act prevents, if the client objects, the presentation of evidence which would result in the disclosure of a confidential communication between the client and a lawyer for the dominant purpose of the lawyer providing legal advice to the client.

355. The starting point is that the defendant was clearly writing on his own behalf as well as on behalf of the deceased. Client legal privilege attached in respect of both the defendant and the deceased. The defendant was entitled to object to the evidence being presented and did.

356. Insofar as the deceased’s legal privilege was concerned, legal professional privilege survives the death of the client: Dunesky & Bay Wool Pty Limited v Elder [1992] FCA 311; 35 FCR 429; Tommy v Western Australia (No 2) [2019] FCA 1551 at [62]; Australian Workers’ Union v Registered Organisations Commissioner [2019] FCA 309; 369 ALR 250 at [22]-[23]; Tenna v Di Lena [2020] WASC 426.

357. That aspect of the legal privilege was abrogated here, because the evidence related to a question concerning the deceased’s testamentary capacity. Relevant to the present circumstances, 121(1) of the Evidence Act provides that following the death of the client, privilege will be lost where the evidence is relevant to a question concerning the intentions, or competence in law, of a client or party who has died.

358. Counsel drew my attention to d’Apice v Gutkovich - Estate of Abraham (No 1) [2010] NSWSC 1336, where White J (as his Honour then was) stated at [20]: It seems to me that the rational construction of the provision and one which fits its context is that it abrogates a claim for privilege which the deceased person as a client or party could have maintained but for his or her death if the privileged documents or communications are relevant to the deceased’s intentions or competence.

359. It was the joint nature of the instruction to the lawyer which created an issue here. Waiver by one is insufficient to affect the other’s privilege: Farrow Mortgage Services Pty Ltd (in liq) v Webb [1996] NSWSC 259; 39 NSWLR 601 at 608B-D, cited in Pirrottina v Pirrottina [2025] NSWCA 55 at [193]. However, joint clients may not maintain privilege against each other: Re Konigsberg (a bankrupt), ex parte the Trustee v Konigsberg [1989] 3 All ER 289 at 297, applied in Mercantile Mutual Insurance (NSW Workers Compensation) Ltd v Murray [2004] NSWCA 151 at [41]. Had it been necessary to decide, it is likely that I would have found that principle to extend to include the executor of the deceased’s estate (because she would have been the person entitled to maintain an objection on the deceased’s behalf).

360. Further, assuming that s 121 of the Evidence Act did not operate to abrogate the privilege attaching to the document in respect of the defendant, the question was whether it was lost by waiver. No objection had been taken to questions earlier asked about the content of MFI 5, only to the subsequent tender of the email. Relying on Divall v Mifsud [2005] NSWCA 447 at [10], counsel for the plaintiff argued that the questions asked in cross-examination of the defendant disclosed the substance of at least paragraphs one and two of the email, such that the defendant had “knowingly and voluntarily disclosed the substance of the evidence to someone else”: s 122 of the Evidence Act.

361. However, the plaintiff was content to confine the tender to paragraph 2 of MFI 5, which only dealt with instructions for preparation of the deceased’s will. That aspect of the document could only have been the subject of the deceased’s privilege as opposed to joint client legal privilege, and I have admitted that paragraph into the evidence. The more difficult question about the admissibility of the complete document can be left undecided because of the substantive findings made above. The evidence was not improperly or illegally obtained

362. For completeness, there was an objection based on s 138 of the Evidence Act, which provides that evidence obtained improperly or in contravention of an Australian law must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in such circumstances.

363. That objection falls away because of my findings in relation to the alleged breach of confidence above. The information (MFI 5) was not obtained improperly.

Costs

364. I will deal with costs with a view to limiting further disputes and expense on the issue, but I will also give the parties the opportunity to be heard further on that issue if necessary, as they did request such an opportunity.

365. I consider it appropriate that the Estate bear the costs of the litigation in the factual circumstances of this case. Because of the circumstances in which the Last Will was executed here, it was appropriate here that the Last Will be proved in solemn form and its validity affirmatively established and the defendant should not bear the cost of that process even accepting that he was a vigorous contradictor.

366. I can only reiterate the encouragement that other judges have given in cases such as Ryan (see [44] of these reasons) that the vast expense of litigation after a person dies could be spared or at least reduced if solicitors follow the guidelines espoused in the authorities as to basic precautions to take. The uncertainty that arises when those steps are not taken is largely, if not entirely, avoidable. A solicitor may not know the full picture as to the true state of someone’s health at the time of taking instructions and what might appear to be a sound cognitive state at the time of execution, such that the solicitor may have no doubt about a person’s capacity, may take on a very different complexion when matters outside the knowledge of the legal practitioner involved come to light. Recording the questions asked of a testator or testatrix as well as their answers to demonstrate more than communication but instruction, understanding and approval of the contents of what is being signed is not a time consuming nor difficult task. Law firms might assist their practitioners by instituting pro forma checklists of the steps taken to assess capacity and actual understanding. Those who seek the services of qualified professionals in the Territory are entitled to expect that the service will include taking such steps to protect the integrity of the document they are executing.

Orders

367. The orders of the Court are: (1) Probate in solemn form of the will dated 25 September 2020 of Kathleen Mary Champion is granted to Yvette Mary Leslie. (2) The counter claim is dismissed. (3) The costs of the proceedings are to be paid out of the Estate of Kathleen Mary Champion, as follows: (a) The plaintiff’s costs on an indemnity basis. (b) The defendant’s costs on the ordinary basis. (4) The application filed 25 July 2024 is dismissed. (5) If either party notifies the court within seven days of these orders that a variation of the costs orders is sought, order 3 is stayed and instead, the parties are directed to file an agreed timetable for the resolution of the question of costs within 14 days of these orders.

I certify that the preceding three hundred and sixty-seven [367] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

Associate: Date: