1. In Sultan v Melick & Ors [2023] TASSC 4, I summarised the task of the Court when making a grant of administration in solemn form. The comments apply with equal force to a grant in solemn form of probate of a will:

"When the Court makes the grant in solemn form, it is performing a public act. The nature of this act was explained by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786:

'In making an order for a grant in solemn form the Court must satisfy itself that there are reasonable grounds for a determination calculated, so far as the Court fairly can, to bring finality to any controversy about the testamentary intentions of the deceased, if any. The object of an application for a grant in solemn form is to secure a judgment of the Court binding on all persons who might be entitled to challenge the validity of a will: Re Young, Hobbs v Christchurch City [1968] NZLR 1178 at 1178 (46).

A grant expressly issued "in solemn form" is a judicial statement that, on the Court's then assessment:

(a) all persons interested in the making of a grant (and, particularly, those with an interest adverse to the making of a grant) have been allowed a fair opportunity to be heard, with a consequence that principles about the desirability of finality in the conduct of litigation should weigh heavily on any application for revocation of the grant;

(b) on evidence then formally noticed, the Court is satisfied that the particular grant represents, consistently with the law's requirement that testamentary intentions be expressed formally, an expression of the deceased's last testamentary intentions, if any; and

(c) an order for a grant in solemn form appropriately serves the due administration of justice'".

1. On the question of validity, I said in McKay v Hearps [2021] TASSC 62:

"14 The legal requirements of a valid will are well settled and not in dispute. The essential requirements of validity include sufficient testamentary capacity on the part of the testator, and the testator's knowledge and approval of the contents of the will. These requirements will be presumed if the will is rational on its face and duly executed and attested in accordance with the relevant legal requirements: Wheatley v Edgar [2003] WASC 118 at [24]. However, the presumption will only apply in the absence of evidence to the contrary. If the circumstances surrounding the making of the will and its execution raise a suspicion in respect of either or both of these requirements, then the Court, after a vigilant examination of the whole of the evidence, must be affirmatively satisfied of the requirement in question before the will can be admitted to probate: Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277; Wheatley v Edgar (above); Howroyd v Howroyd [2011] TASSC 73; Sutherland v Bukoven [2019] TASSC 20."

1. The requirements for testamentary capacity are well established. In summary, they are as follows:
   • Sufficient mental capacity to comprehend the nature of the act of making a will and its effects.
   • Understanding of the extent and character of the property forming the estate.
   • The ability to assess and weigh the moral claims of potential beneficiaries.

See Banks v Goodfellow (1870) LR 5 QB 549, The Will of Wilson (1897) 23 VLR 197; Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277; McKay v Hearps.

1. The requirement of knowledge and approval is a different question to testamentary capacity. In respect of this question, I repeat what I said in McKay v Hearps:

"The requirement of knowledge and approval is a different concept, and only arises for consideration if the Court is satisfied that the testator had adequate testamentary capacity. The question is essentially a factual one, that is, it must be shown that the testator, as a matter of fact, knows that the document in question is his or her will, knows in substance how it deals with his or her property, and by execution, approves of the contents of the document. It does not require anything more. The testator is not required to know every detail of the clauses contained in the will or understand every aspect of their legal effect. Self-evidently, the focus is on the circumstances surrounding the preparation and execution of the will. It is irrelevant that the testator subsequently changes his or her mind, and withdraws approval, if this decision is not carried into effect by a further testamentary act. A common example of circumstances casting suspicion on the question of knowledge and approval is where the will has been prepared by a beneficiary. However, other circumstances can excite suspicion if they call into question whether the testator knew and/or approved of the contents of the will. See Nock v Austin (1918) 25 CLR 519 and generally the cases referred to by Prof Dal Pont in Law of Succession, 3rd ed."

1. In this case, there is evidence capable of exciting suspicion concerning Elsa's testamentary capacity at the time that she made the 2011 will. In particular, she was 95 years of age, and physically frail with poor eyesight. She was not able to read without a magnifying glass. The will was relatively complex. It was prepared by a solicitor arranged by the plaintiff, and the plaintiff was present at the time of its execution. Although there had been a significant lapse in time since she made the 2005 will, she had only made the 2010 will a few months earlier. Further, the evidence adduced before me makes it clear that she had been medically assessed prior to making the will as suffering from dementia and lacking the requisite capacity. While the doctors who attest to these opinions were not ultimately called to provide evidence at the trial, the existence of such opinion is clearly established by the evidence adduced by the plaintiff. Finally, it seems that at the time of execution of the will, Elsa was subject to an administration order under the Guardianship and Administration Act 1995. Such an order is made under that Act where the relevant tribunal is satisfied that the person's ability to make decisions in respect of financial matters is impaired.
2. In my view, these matters do raise a question in respect of the validity of the 2011 will. Accordingly, it is necessary for me to conduct "a vigilant examination of the whole of the evidence" and "be affirmatively satisfied of" Elsa's testamentary capacity and her knowledge and approval of the contents of the will, before I can admit the will to probate. In making such assessment, however, I should bear in mind the following matters discussed by me in McKay v Hearps (above):

"18 In applying this test, it is important to bear in mind that the focus must be on the actual existence of sufficient mental capacity to make the testamentary disposition. In his text, Law of Succession, 3rd ed, Professor Dal Pont points out that there "is tension between the much articulated principle of freedom of testation and the legal consequences of a finding of mental incompetency". In my view, the two concepts are simply different sides of the same coin. A testamentary act represents a formal, solemn and binding declaration of intention, which has legal effect after the life of the testator has come to an end. Viewed in this light, it can be seen that both freedom and sufficient mental capacity are necessary and closely related constituents of the act. Provided the focus of the inquiry is firmly on the capacity of the person to carry out the testamentary act, and not distracted by contextual considerations which, although essential to the determination, are not determinative in themselves, the tension is removed. Hence, the existence of illness, advanced age or cognitive decline will not, of themselves, lead to a finding that the testator lacked sufficient testamentary capacity. This was explained by Kirby P (as he then was) in a passage reproduced by Professor Dal Pont from Re Estate of Griffiths deceased (1995) 217 ALR 284 at 295:

'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.'

1. A further point of importance made by Professor Dal Pont is that the test for mental capacity is a legal and not a medical one. Accordingly, while medical evidence will inform the application of the test, ultimately it resolves to a legal determination. It is accepted that non-medical witnesses, such as lawyers experienced in the preparation of wills, can provide useful opinion evidence in respect of the question of capacity."

1. The plaintiff's evidence was provided by affidavit and oral testimony. He was cross-examined by senior counsel for the first defendant. I found him to be an honest and reliable witness. His evidence was not undermined by cross-examination.
2. The plaintiff is a lifelong farmer. He had a long association with Elsa, and can recall visiting her at her farm as a child. The plaintiff gave evidence that he had regular contact with her over the years. For a lengthy period after she stopped actively raising cattle on the farm, he assisted her by transporting some of his cattle there in order to keep the grass down and otherwise assist with its maintenance. The plaintiff's evidence was that throughout his dealings with her over the years, and until her death, she remained mentally astute and aware. He said that he visited Elsa approximately three weeks before her death and observed then that she was still clear and focused in conversations and although "failing physically ... she remained mentally alert and bright and had good recall". He gave examples of detailed conversations between them from time to time concerning the farm and demonstrated that she maintained a clear understanding of the farm, its needs as she perceived them and her wishes in relation to it. He gave as an example his description of a conversation in 2007 concerning her concerns about the farm's future. She discussed the 2005 will, and expressed concerns that the University would sell the farm when she died.
3. The plaintiff explained his role in the making and the execution of the 2011 will. His evidence was that prior to 2011 he had never discussed the possibility of making a new will with Elsa despite her concerns about the University. However, on a visit to her in February 2011, she again raised with him her unhappiness concerning arrangements with the University. She was particularly concerned about the University's failure to maintain and upgrade the burial sites of family members on the farm and to actively commence farming operations. She told him that she wanted the farm to stay in the Gee family and then told him that she wanted it to go to his family. She explained that she was grateful for his repayment of an earlier loan and his assistance in helping her to obtain income from the aged pension. The plaintiff had never seen the 2005 will and accordingly he took steps to obtain a copy from the solicitors who held the will, Clarke and Gee. He assisted in connecting her with a solicitor, Stuart Blom at Rae & Partners, for the purpose of enabling her to obtain advice in relation to the will. The plaintiff was cross-examined in some detail concerning his role in arranging for the solicitor and the execution of the 2011 will. He made it clear that while he was present at the time of execution, he did not influence the solicitor or the plaintiff with respect to the will. I accept his evidence about this, as well as his evidence generally.

1. Mr Blom's evidence was that he prepared the 2011 will on the basis of Elsa's instructions. He considered that she had a clear view about what she wanted, in particular the maintenance of the farm as a working farm, which continued in the ownership of the Gee family. Although he was not aware of medical opinion which suggested that she suffered from dementia, he made his own assessment of testamentary capacity and considered that she had such capacity. In particular, he was of the view that she had a clear understanding of what he discussed with her and was clear in her instructions to him about her wishes. He travelled to her home for the execution of the will. Although she could not read it herself, he read every word of the will to her and discussed its contents with her as he was doing so. The plaintiff was present at the time but Mr Blom asked him to wait outside the room while he provided advice and took instructions from Elsa concerning the will. His evidence was largely corroborated by the evidence of a legal assistant, Kassey Fechner, who accompanied him at the time of execution of the will and witnessed Elsa's execution of it. The testimony of both witnesses was not shaken or undermined by cross-examination.

1. Mrs Hargreaves and her husband first met Elsa when they were employed by Elsa and her brother to act as caretakers of part of the property in exchange for accommodation. This arrangement continued for approximately two years. During that time, Mrs Hargreaves and Elsa formed a friendship which persisted until Elsa's death. They maintained regular, often daily, contact during that time.
2. Mrs Hargreaves was able to give evidence concerning both the 2005 and 2011 wills. In relation to 2005, she explained how the will was made after a meeting between Elsa and a representative of the University. Certain promises were made to Elsa during that meeting. In the years that followed, Elsa often complained to her about the University not contacting her nor following up on the promises that had been made. This culminated in discussions in late 2010 when Elsa explained to Mrs Hargreaves that she wanted to change her will to ensure that the property remained as a farm and within the family. Mrs Hargreaves' evidence was that Elsa remained capable of expressing her wishes and discussing relevant issues concerning the farm and her estate throughout these years and until her death. Again, Mrs Hargreaves' evidence was not undermined by cross-examination, although the cross-examination was truncated prematurely because of her revelation of the existence of certain documents which had not at that time come to the attention of either party. Her oral evidence did not resume because of the first defendant's effective withdrawal from the trial. However, as far as I have her evidence, I accept it as credible and reliable.

1. As I have already noted, although the evidence referred to the existence of medical opinion from Elsa's GP, Dr Kennedy, and a geriatric specialist, Professor Razay, the only direct medical opinion provided to me came from Dr Maxwell. Dr Maxwell's evidence was contained in an affidavit and she also provided oral evidence. She was cross-examined by senior counsel for the first defendant. Again, her evidence was not undermined by cross-examination.
2. Dr Maxwell is a general practitioner with long experience working with elderly patients. This experience includes conducting many assessments of cognitive ability. Her evidence was that she had assessed "literally thousands of patients in this way" during her career, including for the purpose of providing assessments to the Guardianship and Administration Board.
3. Dr Maxwell had not previously treated Elsa nor seen her as a patient. She had been asked by the plaintiff to visit her and provide advice specifically about the question of capacity to make a will. Dr Maxwell saw Elsa for this purpose at the farm on 7 June 2011. In her evidence, she expressed the firm opinion, based on this consultation and assessment, that Elsa "appreciated the nature and extent of the farming property ... was lucid and rational ... was not suffering from any psychiatric illness affecting her mental or cognitive ability and that there was no reason to think that she was lacking in capacity" to satisfactorily conduct her affairs. She maintained this opinion despite the opinions expressed by the other medical practitioners, which she noted relied heavily on information provided to them by other family members. Neither the other practitioners nor the family members in question have provided evidence to me.
4. Dr Maxwell's ultimate opinion is that Elsa had requisite capacity to make the will. I accept the accuracy and reliability of this opinion.

1. Having regard to the evidence before me, I am satisfied that Elsa had requisite capacity to make the 2011 will, and that she knew and approved of its contents. I observe that the will appears to be a logical response to the understandable concerns that Elsa had expressed on many occasions over a lengthy period about the way the 2005 will dealt with the farm property, and her very clear, long held, and clearly explained desire to see the farm remain in the Gee family, and continue as a working property. I accept that the will came about because of her decision to make a testamentary document that gave effect to these wishes, and that she was not influenced in any way by the plaintiff, or indeed anyone else, in this regard. It is self-evident from this assessment that I am satisfied of the necessary elements of testamentary capacity including her ability to weigh the competing claims of potential beneficiaries. This is very clearly demonstrated by her understandable response to the lack of contact from the University since the making of the 2005 will and the clear and understandable concerns expressed by her in respect of whether it would fulfill her wishes. The handwritten will made by her in 2010, can be seen as part of the process of developing her final testamentary plan, and demonstrates her capacity to weigh up the competing claims of various family members.
2. Accordingly, I pronounce for the force and validity of the last will and testament of the testatrix dated 20 July 2011. I order that there be a grant of probate in solemn form to the plaintiff in respect of that will.