Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips

Supreme Court of NSW|2017-03-06|Before: Kunc J

Introduction

William George Phillips was born on 2 December 1922 and died on 22 October 2014 at the age of 91. He was known as Bill. Without disrespect to him or his family, in this judgment I shall refer to Bill and other family members by their given names.
Bill was married to Eileen. Together they had five children: Glenda, Lesley, Robert, John and James. Bill survived Eileen.
Bill and Eileen were involved as pedestrians in a serious motor vehicle accident on 12 May 2005. Bill sustained a significant brain injury. At the time of the accident Eileen was already seriously affected by dementia. Bill was not.
Bill made wills on 31 October 2006 (the "2006 Will") and 2 June 2008 (the "2008 Will"). On 24 March 2015, James obtained a grant of probate of the 2008 Will. His four siblings have brought family provision claims.
This judgment resolves the question which must be determined before the various family provision claims can be answered: did Bill have testamentary capacity to make the 2008 Will or the 2006 Will?

Procedural history

In proceedings 26517 of 2015, Glenda, Lesley and Robert assert that Bill lacked testamentary capacity in relation to both the 2008 Will and the 2006 Will ("Glenda's proceedings"). Therefore, they say, he died intestate and they claim an order that the grant of probate to James be revoked. Alternatively, they seek further provision out of the estate under whichever is valid of the 2008 Will and the 2006 Will.
James filed a cross-claim seeking declarations that Bill had testamentary capacity in relation to the 2008 Will or, alternatively, the 2006 Will.
In proceedings 26702 of 2015, John seeks provision from Bill's estate ("John's proceedings"). John was admitted to Macquarie Psychiatric Hospital in March 2005 and was diagnosed with chronic schizophrenia, a condition for which he was first treated at the age of 19. He is now 56. Since 2005 John has resided at Macquarie Psychiatric Hospital as an involuntary patient. The NSW Trustee and Guardian was appointed as manager of John's estate by order of the Mental Health Tribunal in January 2015 and brings the proceedings on John's behalf as his tutor.
During the course of case managing both sets of proceedings, the Court made an order with the consent of the parties that both sets of proceedings should be heard together with the evidence in one being evidence in the other.
The hearing of both proceedings commenced before me on Monday, 27 February 2017 with an estimate of six days. Only five days were required. Mr A Cheshire of Senior Counsel appeared for Glenda, Lesley and Robert in Glenda's proceedings. Ms K E Burke of Counsel appeared for John in John's proceedings. Mr K Morrissey of Counsel appeared for James as defendant in both proceedings.
On the first day of the hearing Mr Morrissey made an application on behalf of James to amend James' cross-claim in Glenda's proceedings to include a claim for provision if the Court decided that Bill had died intestate. Ms Burke did not oppose that application. Mr Cheshire SC opposed it. The Court allowed the amendment. The reasons for that decision will be published separately. However, one consequence of allowing the amendment was that, in order to ameliorate any prejudice caused to Glenda, Robert and Lesley by the amendment, the Court decided that it should first resolve the issue of Bill's testamentary capacity. Accordingly, after the luncheon adjournment on the second day of the hearing I made orders which included: "(2) I order pursuant to UCPR Part 28, r 28.2 that prayers 1 and 2 of the amended statement of cross claim be determined separately from and before the determination of any other questions in proceedings 26517 of 2015 and proceedings 263702 of 2015."
Those prayers are: "1. A declaration that the deceased William George Phillips had capacity to make the will of 2 June 2008. 2. Further or in the alternative in the event that the declaration sought at paragraph 1 is not made, a declaration that the deceased William George Phillips had capacity to make his will of 31 October 2006."
The hearing then continued on the basis that, with one exception that is not presently relevant, the Court heard all of the evidence on all of the issues in both proceedings. The parties then addressed only in relation to the separate question, being Bill's testamentary capacity at the time he made the 2008 Will and, if necessary, the 2006 Will. This judgment determines that separate question.

The evidence - some general observations

The present case is somewhat unusual because, unlike the majority of such cases, the primary source of Bill's incapacity was a traumatic brain injury. That is not to say that underlying congenital dementia did not form part of it. However, because of the injury, the Court has the benefit of a great deal more contemporaneous general medical and neuropsychological evidence about Bill than is often the case, including from protective proceedings which were brought in relation to Bill. Of course, it must be immediately recognised that, with one exception (Dr Lee's examination for the purpose of his certificate dated 29 May 2008 (see paragraph [74] below)) the focus of the medical examinations at the time was on Bill's cognitive abilities generally rather than the question of testamentary capacity specifically. Similarly, there is more contemporaneous lay evidence than would otherwise be the case.
The Court therefore had three kinds of evidence. First, there were the contemporaneous medical assessments and other records. Second, there was expert evidence that specifically addressed the question of testamentary capacity. Third, there was lay evidence directed to the same issue. The Court's conclusions are primarily, but not exclusively, based on the contemporary records. No party suggested that any of those records were less than truthful and accurate. It is difficult to see how any such submission could have been made. Accordingly, the Court finds that the representations of fact or of opinion set out in those contemporary records are reliable and accepts them as such. In view of that, the Court's fundamental findings of fact are set out in paragraphs [25] to [84] below and are derived from those contemporary records.
The expert medical evidence was all adduced by Mr Cheshire's clients. It is ultimately telling that James did not tender any independent expert medical evidence to support the proposition that Bill had testamentary capacity at the relevant times.
Dr Stephen Scholem and Dr Mahmoud Abu-Arab both gave evidence not only of their contemporaneous observations, but also of opinions they had formed for the purposes of these proceedings based on their contemporaneous observations. These were to the effect that Bill lacked testamentary capacity in relation to both the 2008 Will and the 2006 Will.
Evidence was also adduced from Ms Melissa Staples, who had produced her report in November 2005 for the purposes of the protective proceedings. She prepared a report for the purposes of these proceedings which, whilst declining to express a final view, said that Bill's cognitive impairments "give rise to significant doubt about his testamentary capacity on the dates in question" although "they do not, of themselves, preclude capacity to make a will".
Finally, although not called as a witness in the proceedings by any party, Dr John Lee's various contemporary observations were in evidence before the Court. Dr Lee was Bill's regular treating general practitioner. Furthermore, he provided a letter for the purposes of these proceedings setting out his views which was tendered without objection (see paragraph [75] below). The sum of Dr Lee's evidence, including his letter produced for these proceedings, weighed against James' case. It is again notable that James did not take issue with the contents of any of Dr Lee's evidence.
For the purposes of the Court's fact finding, after setting out the Court's findings based on the contemporaneous material, I will then set out the specific medical evidence and any findings based upon that evidence.
Finally, several lay witnesses were called, primarily by James (including James himself). Those witnesses all sought to give their recollections of Bill at the time the two wills were made. For the reasons set out below, the evidence of the lay witnesses (apart from their contemporaneous documents) plays little part in the Court's consideration. The relevant lay evidence is summarised below and any consequent findings of fact are set out.

Findings of facts

What follows are the Court's findings of fact in relation to matters which are either uncontroversial or are derived from independent, contemporary records. All emphases in the evidence have been added.
Bill was born on 2 December 1922.
On 12 May 2005, when Bill was nearly 83, he and Eileen were involved as pedestrians in a serious motor vehicle accident. At the time, Eileen was already suffering from dementia. Bill was not.
After spending some time in the intensive care unit and a general neurosurgical ward at the Royal North Shore Hospital, Bill was discharged and admitted for rehabilitation on 24 May 2005 in the Dixson Community Rehabilitation Unit ("Dixson Unit") at the Royal Rehabilitation Centre Sydney. The final diagnosis on his discharge summary is recorded as "Closed head injury - base of skull fracture, small frontal contusions on the left and multiple lacerations". It also records his progress "On discharge - mobilises independently, orientated to place, time etc, although does appear confused at times".
On 27 June 2005, Bill was discharged from the Dixson Unit. His discharge report on that occasion notes that he had suffered a "traumatic brain injury - pedestrian versus motor bike in 12/05/05". The discharge report records: "● MMSE [(mini mental state examination)] - 25/30 - mildly distractible - frequent repetition of previous conversations ● Poor insight into injuries and to those of his wife ● No aphasia ● Registration - 3/3, recall - 2/3 at 5 minutes ● No neurological weakness … ● Poor Insight, decreased orientation, decreased problem solving ● Organised Neuropsychological Assessment … ● Multiple Family Conferences on 10/06/05 & 30/06/05' ● Patient/Family self discharged patient during trial Weekend Leave 24/06/05 to 25/06/05 … ● Team required to contact Mr Phillips['] family, son James, at home, to discuss unintended discharge and ongoing management of Mr Phillips['] - informed James that Mr Phillips had not completed rehabilitation as planned (unable to verify Post-Traumatic Amnesia state, safety of Mr Phillips at home, neuropsychological abilities to make well informed and appropriate decisions regarding self care and potential business. Further Family Conference organised for 30/06/05 to discuss Guardianship issues and ongoing management for Mr Phillips. Outcome of Family Conference on 30/06/05 - application for Guardianship and Financial Supervisor made by son James; family present including James and two daughters - accepting and supportive of application process for guardianship … ● Neuropsychology report on 30/05/05 and 2/06/05 - conclusions and recommendations: is orientated, impaired executive functioning, reduced learning, storage and retrieval ability of new learning of information. Impression that Mr Phillips would have difficulty managing some of his previous activities, in particular, his ability to cope if something unexpected were to arise such as an emergency situation. It is recommended that he be largely supervised and assisted with managing his business and making complex decisions. Occupational Therapy … ● Able to complete every day simple tasks independently, however his deficits in memory, planning, problem solving, reasoning, orientation, understanding, insight and mood related issues greatly impeded his ability to manage complex information and tasks.
On the same day (27 June 2005), Bill was also seen by Dr Scholem, who was Eileen's treating general practitioner. Although Bill's treating general practitioner was Dr Lee, from time to time Bill was seen by Dr Scholem. Dr Scholem's note records that Bill exhibited "increased vagueness since motor vehicle accident, some unsteadiness of gait". On that occasion Bill could identify the day of the week, the year, the time of day, the season and perhaps the name of the prime minister, but not the date or month. Dr Scholem's assessment of that occasion is recorded as "[i]ncreased vagueness from head injury but manageable at home with son, James, living downstairs".
Bill saw Dr Scholem again on 1 July 2005. Dr Scholem recorded that Bill was "having major problems remembering the doses of his wife's medication", which Bill was supervising and administering, and he assessed Bill as having a "significant cognitive decline from pre-injury state".
On 4 July 2005, Bill was seen by Ms Jacqueline Kalmar, a consultant occupational therapist, in connection with Bill's CTP claim arising from his accident. Ms Kalmar undertook an "Activities of Daily Living Assessment". Mr Kalmar's report included: "Mr Phillips was orientated in place and person but not in time. He attempted to rationalise his inability to state day and date with a verbose explanation. … Memory Mr Philips demonstrated short term memory difficulties including forgetting things he has said previously, repeating phrases, difficulty recalling more than four numbers in a forward sequence, inability to dial a telephone number unless written down and broken into two sequences of four numbers with cuing. Mr Phillips' task memory for familiar tasks such as making a cup of tea was intact however he demonstrated difficulty in using his answering machine and the telephone to receive messages. On requesting Mr Phillips to organize a shopping list from a listing of common ingredients he was unable to plan the list or determine the quantities of goods, for example, milk he would need for the week. The neuropsychological report from Royal Rehabilitation Centre Sydney indicated that Mr Philips' performance on tests of learning and memory was generally poor. His ability to learn new information was reduced. His performance on recognition tasks indicated that he was forgetting significant amounts of information over time. … Mr Phillips demonstrated difficulty with problem solving particularly where a number of concepts are linked. … Mr Phillips demonstrated difficulty with problem solving where a number of steps or complex processes are involved. … EMPLOYMENT Mr Phillips was the owner and operator of a marine supply company, NSW Marine Products, supplying life and navigation buoys. In the past his daughters, Glenda and Leslie [sic] had assisted with the financial affairs of the business. Mr Phillips reported that he plans to sell the business and has made representation to an interested party. … Mr Phillips' cognitive deficits impact on his ability to manage complex financial tasks and maintain the daily operation of the business. … Financial Management Mr Philips was able to complete simple mental calculations and handle change requirements appropriately. He reportedly paid his bills at the local post office or Commonwealth Bank. Mr Phillips' capacity to pay accounts appropriately is uncertain given his poor performance on a similar planning exercise. The establishment of functional strategies using basis memory and routine skills is indicated. Complex money matters as related to his business dealings were determined as being affected by Mr Phillips' impaired executive functional skills."
Ms Kalmar's summary of her assessment of Bill included: "Post-injury, Mr Phillips was assessed as having difficulties with short term memory, orientation, processing reasoning consistent with frontal lobe damage. He demonstrated a lack of insight into his problems, explaining his difficulties with verbose rationale or indicating that it doesn't matter. Frustration and agitation were identified as potential behavioural concerns when repeatedly trying to problem solve but not attaining the desired outcome. Mr Phillip[s'] cognitive deficits impact on his capacity to act as carer for his wife and to respond effectively to an emergency or unplanned complex situation. His capacity to self manage his every day activities with his cognitive deficits may be further compromised by him having to manage his wife's behavioural demands. Mr Phillips demonstrated that he is able to manage simple and routine tasks, such as making a cup of tea independently. He experiences increased difficultly where multiple steps or reasoning are involved, for example, compiling a shopping list, meal preparation and shopping. He demonstrated difficulty with managing a bill paying exercise due to reasoning sequential and problem-solving deficits. Task specific strategies will need to be addressed to assist Mr Phillips manage daily financial and money handling tasks. The level of cognitive deficits with respect to planning, organizing and reasoning will directly impact on his ability to manage the day to day running of his business. Although Mr Phillips has indicated he desire to sell the business, he will require assistance to manage complex financial decisions. Memory difficulties as evidenced by repeating of information, difficulty recalling information and forgetting things he said previously, impact on his ability to manage multi-step tasks, for example, meal preparation and impede community integration."
On 12 July 2005, Bill saw Dr Lee. The doctor's note includes "Son, James looking after patient and patient's wife (also involved with accident) … reduced short term memory 0/3 … Carer's pension application filled in". The Court infers that it was a carer's pension application for James.
On 18 August 2005, Bill saw both Dr Lee and Dr Scholem. Dr Lee's note says of Bill that he was "Vague and incoherent. Didn't really know why he came".
Dr Scholem's note of Bill's attendance on 18 August 2005 is to the effect that Bill wanted a referral to Dr Patricia Jungfer (a consultant psychiatrist) and that he had sold his business. He felt his memory was improving a bit. He was able to tell Dr Scholem the date, the month, the year and the time but Dr Scholem noted that Bill was engaging in "some circumlocution". During examination in chief, Dr Scholem explained the reference to circumlocution as Bill "wasn't speaking in a straightforward way, it was a way of talking as if he was sort of hiding the fact that he didn't know what he was saying". In his written report, Dr Scholem said it was "as if [Bill] was unable to think of the correct words to express himself".
On 15 September 2005, Bill was reviewed by Dr Alexis Berry, the rehabilitation registrar at the Dixson Unit. Dr Berry's report to Dr Lee of that date, Dr Berry describes Bill "as an 82-year-old gentleman with a severe traumatic brain injury". His report includes: "Mr Phillips was admitted to our unit from the 24/05/05 - 27/06/05 at which time he discharged himself against medical advice during a weekend leave. As you know there were a number of concerns regarding Mr Phillips['] cognitive ability and insight and there were two family conferences held to discuss these concerns with his family. Following from these concerns a Guardianship recommendation was put forward. … Mr Phillips unfortunately did not present with any family members or carers to today's appointment. He appeared unkempt and had not had a shower in a number of days. He was vague and was not oriented to the day, month or year. He was unable to recall the details of yesterday's events. … He reports that he has been managing well, although cognitively still feels that he is still struggling with his memory. …"
On 20 September 2005, Bill saw Dr Lee. Dr Lee's notes record Bill as having "increased dementia with decreased short term memory. Decreased ability to make decisions. Increased word finding difficulty."
On 21 September 2005 Bill, accompanied by a carer, was examined by Dr Scholem. Dr Scholem's note records "[c]onflict with son James, arguments, for example son being upset that patient let wife fall". Dr Scholem records that Bill had an "unsteady gait, needs support of one person". He performed a mini mental state examination ("MMSE") on Bill. According to Dr Scholem's notes this was the first time he had conducted an MMSE on Bill. In the course of the test, Bill was unable to say the correct date or month and was only able to remember one out of three words that he had been given to memorise. Dr Scholem's notes record his assessment of Bill as "[d]ementia mild. Full time carer recommended".
On 17 October 2005, Bill was seen by Dr Kujan Nagaratnam, a consultant physician/geriatrician, at the request of the CTP insurer. Dr Nagaratnam's report includes: "Mr Phillips had fairly normal cognitive function prior to a motor vehicle accident, in which he was a pedestrian, on 12 May 2005. He presents with some cognitive impairment since this episode. … Since returning home his family have noticed that he has some significant cognitive deficits, mainly with short term memory and recall. … I gather that he is still fairly independent in most of his activities of daily living, however he is having difficulty managing complex tasks and he gets quite frustrated intermittently. … Cognitive screening showed some problems with short term memory. He was intermittently vague and had difficulty recalling some facts, especially around his accident. He had some problems with planning and had poor recall. He scored 26/30 on the Mini Mental State Examination. … [his accident] has resulted in some cognitive deficits in his short term memory, planning and judgement due to his closed head injuruy [sic]. `… His cognitive deficits are probably secondary to his closed head injury and cerebral contusions. Prognosis, Mr Phillips is fairly independent at present, although there is a high possibility that he is probably going to deteriorate in regard to his cognitive functions as time goes on. He would probably need help with activities of daily living and supervision."
On 19 October 2005, Bill was seen by Dr Jungfer on the referral of Dr Scholem. Dr Jungfer gave evidence in the proceedings but was not required for cross-examination. Dr Jungfer's report of her examination of Bill includes: "… Since discharge from hospital [Bill] has had problems with regards to complex problem solving, thinking, multitasking, he tends to be forgetful, and there are issues with regards to his capacity to manage his financial affairs as he is forgetful regarding paying bills, and the finances are also significantly restricted. He reports some difficulties with regards to his ability to comprehend subjects, difficulties with concentration, and no longer as interested in his usual activities. … Mr Phillips was noted at times to be quite muddled and confused. Most responses to questions in terms of how long he had done things was 24 years, so even though he had been married for more than 50 years he thought he was only married for 24 years, even though he had run his business for more than 40 years, he only thought it was for 24 years and forgot to mention things, such as having surgery for glaucoma, and spoke about his exercise program as if he was doing it prior to the accident, when he had ceased a number of years ago. There is clear evidence in Mr Phillips case of a decline in his cognitive functioning, and some of the difficulties he reports particularly with regards to his cognitive skills suggests an executive impairment. … His symptom complaints are consistent with a cognitive disorder following a head injury. … There still might be some improvement in his case, although the degree of improvement is limited due to his age."
In a report dated 5 November 2005, Ms Melissa Staples, a consultant clinical psychologist and neuropsychologist, documented her assessments of Bill undertaken on 4, 5 and 25 October 2005. Her report includes: "At interview and on testing obvious impairment of verbal expression and ability to provide a clear history was evident. While fluent, Mr Phillips' speech was frequently quite empty of informative content. Information provided was often fairly non specific and vague. At times during the history taking the information provided also seemed confused and contradictory. Further, his verbal responses were often verbose and tangential, and sometimes not wholly appropriate to the question asked. His expression was frequently repetitive and subtly perseverative in nature. He was slow to formulate his response at time. Mr Phillips followed task instructions satisfactorily. … [Mr Phillips reported] in regard to cognitive functioning Mr Phillips found it "a little more difficult to recall situations". Sometimes it was harder to remember what he had done last week. He was more forgetful now. On specific enquiry about the events of the day prior to the interview his recall was found to be vague and lacking in detail. On further questioning Mr Phillips agreed his concentration was poorer as he had greater difficulty focusing his mind. His mind wandered more. In addition, he felt he did not handle problems "nearly as well" now. He became overwhelmed and confused more readily and could not "grasp the full context". He did not "twig as quickly" to new information and needed repetition to comprehend new information/concepts. Mr Philips felt the accident had slowed him down both cognitively and physically. … INTERVIEW WITH GLENDA PHILLIPS (Daughter) … Impaired cognitive functioning was noted. Glenda observed her father now had difficulty keeping track of things and was readily distracted from tasks. For example, he would start to make a cup of tea but bec[a]me distracted and forget to complete the task. He was forgetful more generally. For example, Mr Phillips' memory was now not reliable enough to ensure he remembered to pay bills. … He was withdrawn and less social. … His speech was repetitive and empty of information at times making it harder to pick up on his point. RESULTS OF TESTING … Mr Phillips was poorly oriented to time and incorrectly stated his age to be 84 (not 82). … Brief assessment of learning and memory showed this to be substantially impaired … Ability to think in abstract terms was reduced. Cognitive flexibility was severely impaired at a basic level. There was a perseverative quality to Mr Phillips thinking/responses across testing. On the whole substantial impairment of reasoning and executive functioning was indicated. … SUMMARY AND OPINION The present assessment was conducted approximately 5 months after Mr Phillips sustained a serious brain injury when he was struck by a car on 12 May 2005. … According to conventional criteria this indicated TBI [traumatic brain injury] in at least a very severe range. … The present assessment, albeit limited, finds persistence of marked cognitive impairments in keeping with those reported previously. In particular, Mr Phillips remains disoriented to time, he is slow to think with a tendency to make errors when trying to work at pace, he cannot shift his attention between competing demands, his memory is most unreliable, and his reasoning and problem solving capacity is substantially limited being characterised by concrete, rigid and at times perseverative thinking. … On the whole the evident cognitive and behavioural impairments represent severe disability. Collectively the deficits in cognitive function can be expected to substantially undermine Mr Phillips's ability to function independently. … His capacity to make well-reasoned, fully informed decisions and problem solve (particularly in the face of the unexpected or emergency situations) can be expected to be seriously undermined by the executive type problems demonstrated at assessment (including poor frustration tolerance and loss of emotional control). In my opinion, the cognitive and behavioural impairments found on examination together with concern regarding incomplete insight indicate Mr Phillips is not able to operate independently (at home or in the community) in a manner that is entirely safe or will ensure his wellbeing. … To conclude, the neuropsychological findings are consistent with acquired cognitive impairment as a result of the documented head injury … Given that it is only 5 months post injury further recovery is possible, however, this will potentially be quite limited given persistent severity of impairment seen presently with Mr Phillips' age."
On 23 November 2005, Bill saw Dr Scholem, who had received Dr Jungfer's report. His note of the examination includes: "Circumlocution style of speaking. Oriented well time, place and person, date 2005. … Assessment: possibly slight cognitive improvement after head injury."
On 9 February 2006, Bill saw Dr Lee. Dr Lee's notes include "short term memory 0/3. Decreased insight into problems".
On 30 March 2006, Bill was seen by Dr Scholem. In the course of his examination in chief, Dr Scholem read his notes of that attendance onto the record, giving explanatory comments as he did so (T146:22-31): "Objective, patient concerned that insurance company has stated will no longer pay for carer for wife. Patient insists his wife was not demented prior to her car injury. Patient states she was cooking and driving a car prior to accident," exclamation mark, because she was not. She was very significantly demented prior to the accident. "Assessment, patient stating these things despite overwhelming evidence that his wife was in fact markedly demented prior to accident. This appears to be indicative of patient himself having markedly abnormal brain function. Plan, urged to get his lawyer to contact me to discuss issues. Flu vacs"
In a report dated 10 April 2006, Crawford Healthcare Management Services (the CTP insurer's rehabilitation service provider) filed a closure report which stated that: "Reports have now been received from Dr Jungfer, Dr Nagaratnam and Melissa Staples (neuropsychologist). I have spoken with Dr Scholem and it is my understanding that the family did not pursue any recommendations that were made by Dr Jungfer in her reports. The family arranged the appointments with Dr Jungfer independently of the insurer. … OUTCOME Mr Phillips has not participated in a cognitive training program. Care has been ceased for Mrs Phillips and Mr Phillips and his family have not sought any further case management intervention. It is my understanding that the family will pursue the claim through their legal representation."
On 20 April 2006, Bill granted James both a general power of attorney and appointed him as his (Bill's) enduring guardian. Those documents were executed by Mr Danny Bricknell, Bill's solicitor. On the same day, Bill also made a will. However, that will was destroyed when the 2006 Will was made. There is no evidence of the contents of the will that Bill made in April 2006. The parties were in agreement that, beyond the fact of it having been made, the April 2006 will was irrelevant to these proceedings.
On 16 August 2006, Bill was seen by Dr Scholem, whose notes of his examination include: "Subjective review, wife at home after fractured hip. Patient getting on well with James now. Has carers 24 hours day, paid by insurance company … assessment stable, with cognitive defects secondary to head injury."
On 31 October 2006, Bill made the 2006 Will, which included: "1. I HEREBY REVOKE all wills and testamentary dispositions previously made by me AND DECLARE this to be my last will and testament. 2. I APPOINT my son JAMES CHRISTOPHER PHILLIPS as executor and trustee of my will who in this will is referred to as "my Trustee" AND I DECLARE that the expression "my Trustee" where hereinafter used and where the context permits shall mean and include the trustee or trustees for the time being of my will whether original surviving substituted or additionally appointed. 3. I GIVE DEVISE AND BEQUEATH to my Trustee the whole of my estate of whatsoever nature and wheresoever situate UPON TRUST to pay my funeral and testamentary expenses and debts and all death probate estate succession and other like duties payable in respect of my estate and to hold the residue then remaining ("my residuary estate") UPON THE FOLLOWING TRUSTS:- a) To pay to my Wife EILEEN MABEL PHILLIPS, for her life an amount not exceeding the amount per week she can receive from time to time without suffering any reduction in the amount of any pension to which she is then entitled commencing one (1) week after my death and at the absolute discretion of my Trustee to us [sic] and apply the capital or such part as my Trustee from time to time think fit for the benefit of the said EILEEN MABEL PHILLIPS and in such manner as my Trustee shall in his absolute discretion decide; b) As to the balance of the income then remaining to the said JAMES CHRISTOPHER PHILLIPS; c) Upon the death of my Wife after me or if my Wife predeceases me then the following Trusts shall apply:- (i) I GIVE DEVISE AND BEQUEATH to my Trustee such residential property in which I may reside at the date of my death together with the household furniture, goods, chattels and effects which at the date of my death shall be owned by me and shall be in, about, or belonging to and jointed with the property upon trust to permit and allow my sons JOHN PHILLIPS and JAMES CHRISTOPHER PHILLIPS, or either of them, to have the use, occupation and enjoyment of the same for a period of two (2) years from the date of my death on condition that my son JAMES CHRISTOPHER PHILLIPS shall pay all rates, taxes and outgoings from time to time as assessed or payable in respect of the property and shall keep the property and household furniture, goods, chattels and effects in good and substantial repair, order and condition and properly insured against loss or damage by fire in the name of my trustee who shall lay out any money received in respect of such insurance in replacing or reinstating the property destroyed or damaged or in purchasing similar property to be held upon and subject to the same clauses and provisions of the property destroyed or damaged; (ii) as to such residential property as I shall own as at the date of my death, to my son JAMES CHRISTOPHER PHILLIPS upon the condition that he pays to my estate sufficient monies equal to the pecuniary legacies (including any interest payable on these) provided for in this Will. AND FURTHER PROVIDED that such payment is made within two (2) years of the date of my death and that he shall be liable for the payment of all taxes, rates, charges, and insurances in respect of the property, from the date of my death; (iii) IN THE EVENT that my son JAMES CHRISTOPHER PHILLIPS fails to make the payments referred to in the sub clause above then my property shall form part of my residuary estate; (iv) I GIVE the following pecuniary legacies to be paid no later than two (2) years from the date of my death: a) to my daughter LESLEY CATLING the sum of fifty thousand dollars ($50,000.00), and in the event that she shall pre-decease me I DIRECT this shall form part of my residuary estate; b) to my daughter GLENDA PHILLIPS the sum of fifty thousand dollars ($50,000.00), and in the event that she should pre-decease me then I DIRECT that this legacy shall form part of my residuary estate; c) to my son ROBERT PHILLIPS the sum of fifty thousand dollars ($50,000.00) or in the event that he shall pre-decease me I DIRECT this legacy to his wife ROBYN PHILLIPS; (d) to my son JOHN PHILLIPS the sum of fifty thousand dollars ($50,000.00) and in the event that he shall pre-decease me then I DIRECT this legacy shall form part of my residuary estate. (vi) I GIVE the rest and residue of my estate to my son JAMES CHRISTOPHER PHILLIPS."
The 2006 Will was witnessed by Mr Bricknell and Ms Marisa Hannelly, a secretary, who was not called to give evidence.
In late 2006, one of Bill and Eileen's carers, Ms Anne Grgurevic, set up her own company which took over the care of Mr and Mrs Phillips. Ms Grgurevic provided a care plan to the CTP insurer. The plan included these comments about Bill: "Bill Phillips is a 85 yo gentleman who has an acquired brain injury due to a MVA in 2005. Bill is a very headstrong man, who is use (sic) to running his household his way! Bill has been caring for Eileen for many years and is his number one priority and has difficulty coping with changes in his routine. Bill becomes confused and disorientated with any change no matter how minor. A good way to overcome this is to put an idea into his head and let him think it was his idea. Put the explanation and thought process to him before changing any details."
On 8 December 2006 Ms Grgurevic sent a further letter to the CTP insurer, in which she said: "As per our discussion today I am listing the Care Mr Phillips requires. * Mr Phillips is showing a rapid decline both Mentally and Physically * Mr Phillips is a very stubburn [sic] man and is extremely difficult at times as he is unable to determine if outcome may cause injury to his wife. * Mr Phillips becomes confuses [sic] easily and needs constant reminding and explanation of daily activities eg: * Paying bills as he throws then [sic] out and hides them as he is unable to cope. * Needs to be assisted with shopping * Needs assistance with walking as unstable on his feet. * Constant Prompting to shower as he will shower every 6 weeks if left to him. * Prompting to put clean clothes on as he can not distinguish dirty from clean. * Medication prepared and watched carefully so he can administer to his wife as he becomes confused. * Requires constant cleaning after as Mr Phillips tends to drop, spill, break constantly. * Mr Phillips seeks constant attention from carers. * Watched carefully as Mr Phillips is wanting to harm himself. * Constant encouragement as Mr Phillips feels he is useless. * Monitor Mr Phillips mood swings and anger towards his wife."
On 11 December 2006, Bill saw Dr Scholem, whose note of the attendance includes: "Still has carer for self and wife 24 hours, feels well, eating OK. Carers do cooking. Goes with carers to do shopping … Note, patient doesn't know age, wife's age, what year he was married or how old he was. He is uncertain how many children he has, and had trouble listing their names."
On 15 January 2007 Dr Scholem saw Bill and Eileen on a home visit. He interpreted his notes during that visit during his evidence in chief (T148:25-28): "A. "Objective, 'What year were you married?'" That's the question I asked him. "'40 years ago.' 'How many children?' 'Five,'" which was correct. "Seldom watches TV. Name of Prime Minister, tick. Patient administers wife's treatment from Webster-pak."
Dr Scholem saw Bill again on 7 February, 6 March and 9 March 2007. However his notes of those examinations make no reference to Bill's mental state. Dr Scholem accepted in evidence that the last examination he performed on Bill was 9 March 2007.
On 20 February 2007, James swore an affidavit in support of proceedings Bill had brought (by James as next friend) in the District Court arising from the accident. That affidavit included: "11. As a result of the accident both my parents, Mr William Phillips and Mrs Eileen Phillips sustained significant and multiple injuries, which have resulted in them requiring full time attendant care ever since the accident. … … 13. After having been discharged from hospital, my father William Phillips sustained significant brain damage resulting in him having memory loss and significant depression. Physically my father was slowly able to get back to mobilising on his own, but would not be able to go to the shops on his own, would not be able to drive and essentially could not be let out of the house. He needed assistance in making his day to day decisions, being reminded of taking his medication and also simple tasks around the kitchen, the bills and taking care of all the payments and the selling of the business he was not able to do and required me to assist on a day to day basis. … 16. Ever since the accident and upon their discharge from hospital and the rehab unit, they have continued to reside in the family home which is something they wanted to do and the family agreed should be done so as to minimise any ongoing psychological disability. … 18. It became evident to me that towards the middle of 2006 that the condition of both my parents had stabilised and there was nothing further that was going to be done in terms of treatment or rehabilitation to improve them."
On 9 March 2007, Gibson DCJ approved the settlement of Bill's District Court proceedings for a net payment of $1,190,494.08.
Because of the substantial District Court settlement that Bill was to receive as a result of the accident, James made an application in the Protective List of this Court under the Protected Estates Act 1983 (NSW) for a financial management order to be made in respect of his parents' affairs (the "protective proceedings"). In the proceedings James sought orders including: "1. A declaration that William Phillips is incapable of managing his affairs. 2. An Order that the Estate of the Defendants be subject to management under the subject Act. 3. An Order that Trust Company of Australia Limited, 35 Clarence Street, Sydney NSW 2000 or some other fit and proper person may be appointed with or without security as the Court may determine, Manager of the Estate of [sic]"
On 11 May 2007, Dr Lee swore an affidavit in the protective proceedings in which he said: "2. Mr William Phillips was a pedestrian involved in a motor vehicle accident continual [sic] which resulted in his sustaining both physical injuries along with severe and traumatic brain injury. ... 4. At the last consultation of Mr William Phillips which occurred on February 9, 2006 he continued to suffer from these significant physical injuries as well as cognitive impairment and depression. … 6. It is my opinion as her [sic] treating general practitioner that Mr William Phillips is unable to manage his financial affairs and that these would be best managed by an independent financial organisation."
On 14 May 2007, Bill saw Dr Lee, whose notes of that consultation include: "Patient requests memory check … MMSE 23/30 … patient struggles with more complex instructions such as appointments and blood and urine tests."
On 28 September 2007, Dr Abu-Arab swore an affidavit in the protective proceedings which included: "3. At the last consultation with Mr William Phillips which occurred on 28 September 2007 he continued to suffer from the brain injury sustained. It is in my opinion as his clinical psychologist that Mr Phillips is unable to manage his financial affairs and would be best managed by an independent financial organisation."
Attached to Dr Abu-Arab's affidavit was his report, which included notes of his examination of Mr Phillips and his clinical conclusions. These included: "I used the MMSE to screen Mr Phillips' cognitive functioning. He said that the day was Monday instead of Friday. He was unable to recall the date. Nor he knew what was the month. When I asked him about the year he said nineteen … I asked him about the season and he said towards summer instead of spring. Mr Phillips knew the name of the suburb where he resides, the state and the country. (East Ryde, NSW, Australia). I asked Mr Phillips to repeat after me three names … but he was only able to repeat two. He managed to repeat all three after a second trial. However, three minutes later he was unable to recall the names that already he learnt before. On another task, Mr Philips managed to name three objects that I showed him … He was able to repeat a sentence "No ifs ands or buts" and, he was able to read a sentence "Close your eyes". When I asked him to act in accordance with what the sentence demands him to do, he complied and closed his eyes. He was able to copy the same sentence from a form that I displayed to him. Finally I asked Mr Phillips to draw two intersected pentagons that I displayed him. But he failed to do so. His score on the MMSE was 18/30. Mr Phillips is able to count from to 1 to 20 forwards and from 20 to 1 backwards but he was unable to do so when I asked him to skip three numbers. Mr Phillips is able to recognise coins and notes but he is unable to buy items from the shop on his own. He is unable to calculate the cost of items and the expected change that he would receive from the shopkeeper if he paid by a big note. I asked Mr Phillips in what forms he proposed pay if he bought something and he said by cash. I asked him to write a cheque but his writing was not legible and he forgot to sign and date the cheque. Conclusion: Considering Mr Phillips' age and the severe TBI that he sustained in the MVA on 12 May 2005 and, based on his performance during the interview, I came to the conclusion that Mr Phillips suffers from severe cognitive dysfunction. Therefore, I believe that he is incapable of managing his financial affairs. It is expected that his cognitive functioning will deteriorate further with ageing [sic]."
On 11 October 2007, Dr Lee swore a further affidavit in the protective proceedings, which included: "4. At the last consultation of Mr William Phillips which occurred on May 21st of 2007, he continued to suffer from these significant injuries as well as cognitive impairment. … 6. It is my opinion as her [sic] treating general practitioner that Mr William Phillips is unable to manage his financial affairs and that these would be best managed by an independent financial organisation."
On 11 October 2007 James swore an affidavit in the protective proceedings which included: "7. Since the motor vehicle accident my father has been confused and has short term memory loss. He is unable to manage his financial affairs and I have to sign cheques and help him pay bills. Due to the difficulties he was having, he asked me to become his guardian …"
On 11 January 2008 Bill saw Dr Lee, whose note of the attendance includes "Short term memory poor and much the same. Dependent on carer 24/7."
On 19 February 2008, this Court made orders in the protective proceedings that Bill was incapable of managing his affairs and ordered that the Trust Company of Australia Limited ("Trust Co") be appointed manager of Bill's estate.
On 12 May 2008, Bill and James attended on Mr Bricknell for an hour. Looking at Mr Bricknell's one page note of that conference, nothing in it suggests that instructions were given for a new will from Bill. The focus appears to have been the possibility of a statutory will for Eileen. Mr Bricknell's note at the bottom of the page reads "Court application to make will for wife? They enquire and speak to DWB [Mr Bricknell] again". Bill and Eileen's carer's note for that day simply records "Bill was awake, had a cup of tea with James and then both left to attend an appointment together".
On 16 May 2008, Mr Bricknell had a telephone attendance with Ms Clare Stanford from Trust Co. From Mr Bricknell's note, it appears that Ms Stanford confirmed that there was only a financial management order made by the Supreme Court and no guardianship order. Mr Bricknell's note concludes: "Query: Effect intestacy laws and/or Family Provision Act".
On 23 May 2008, Mr Bricknell had another telephone conversation with someone at Trust Co.
Mr Bricknell's file also contains notes which Mr Bricknell accepted were made by his employed solicitor, Ms Susan Rooke. Ms Rooke no longer works for Mr Bricknell and was not called by any party to give evidence. Ms Rooke's notes are undated. However, from their position in the file the Court infers they were created around May 2008. There are two telephone message slips from which the Court infers that Ms Rooke telephoned Dr Scholem, who returned her call. Ms Rooke subsequently spoke to Dr Scholem. The Court finds that Ms Rooke made a note of what Dr Scholem told her during that conversation. Her note includes: "Bill to see doctor re state of mind. … incompetent to make a will significant head injury poor memory " " [poor] insight Dec '06 doesn't know ages # children trouble listing"
By reference to Dr Scholem's notes, including of his December 2006 examination of Bill (see paragraph [53] above), the Court finds that Dr Scholem told Ms Rooke that Bill would have to see a doctor concerning his state of mind and that Bill was incompetent to make a will.
Mr Bricknell has no recollection of ever seeing Ms Rooke's note or that she had ever made him aware of the views expressed by Dr Scholem.
On Thursday, 29 May 2008, Bill was seen by Dr Lee. Dr Lee's note at that attendance was: "Disoriented to day X date X May (tick); Year. Dr Lee (tick). James (tick). 5 children - James, Jim, Robert, Glenda, Leslie. (all correct). Able to make simple changes to will medical certificate given"
The medical certificate (the "Certificate") was provided to Mr Bricknell. It stated: "Medical Certificate This is to certify that Mr William Phillips is competent to make minor changes to his will. He will need simple and clear clarification of his changes in the will. This Certificate was completed on 29/5/2008. (Sgd) Dr. John Lee"
For the purposes of these proceedings, the solicitors for Glenda, Lesley and Robert wrote to Dr Lee and asked him to "advise what you meant precisely by "minor changes" having regard to the deceased's condition at the relevant time". Dr Lee's written response was tendered in evidence without objection. I was informed that Dr Lee had indicated that he would not cooperate further with either party and neither party subpoenaed him to give evidence. Dr Lee's response stated: "Thank you for requesting information regarding the late Mr William George Phillips. I have carefully reviewed Mr William George Phillips' medical notes on 29 May 2008. I have also carefully reviewed Mr William George Phillips medical notes in relation to his capacity to make sound decisions. On 29 May 2008 Mr William George Phillips came to see me with his son Mr James Phillips. None of his other children were present. A certificate regarding his capacity to make changes to his will was requested on that day. My examination was only brief. Examination on this day revealed that Mr William George Phillips was unable to tell me the day of the week and the date. He was able however able [sic] to tell me the month of the year. He could tell me my name and his son James' name. He was also able to remember all his children's names correctly. On the basis of this brief assessment, I wrote my certificate dated 29 May 2008. Mr William George Phillips was only competent to make minor changes of his will providing he was provided with simple and clear clarification. I used the wording "minor changes" in this certificate because of my doubts about his capacity to make clear and sound decisions regarding his will. Mr William George Phillips had already suffered from a significant traumatic brain injury after a motor vehicle accident in 2005 and knowing that his Mini mental state examination on 9 February 2007 was 23 out of 30 which indicated he had dementia. Let me add that on 29 May 2008, with the limited time of my assessment, I would certainly not have been able to certify that Mr William George Phillips was able to make "major" changes to his will."
Mr Bricknell accepted in his evidence that, if he had been given the information set out in the preceding paragraph by way of further explanation from Dr Lee about his medical certificate, he (Mr Bricknell) would not have proceeded with making the 2008 Will for Bill.
The following Monday, 2 June 2008, Bill and James attended Mr Bricknell. Mr Bricknell's attendance note is sparse and appears to address matters arising from the intestacy of Eileen. That is how Mr Bricknell interpreted his notes. His notes are completely silent in relation to the circumstances in which Bill made the 2008 Will in Mr Bricknell's presence on that day. The 2008 Will included: "1. I REVOKE all previous wills and testamentary dispositions. 2. I APPOINT my son JAMES CHRISTOPHER PHILLIPS as executor and trustee of my will who in this will is referred to as (my Trustee) and I DECLARE that the expression my Trustee where hereinafter used and where the context permits shall mean and include the trustees for the time being of my will whether original surviving substituted or additionally appointed. 3. I GIVE DEVISE AND BEQUEATH to my Trustee the whole of my estate of whatsoever nature and wheresoever situate UPON TRUST to pay my funeral and testamentary expenses and debts and all death probate estate succession and other like duties payable in respect of my estate and to hold the residue then remaining ("my residuary estate") UPON THE FOLLOWING TRUSTS:- (a) To my Wife EILEEN MABEL PHILLIPS for her sole use and benefit. (b) If my Wife predeceases me then the following Trusts shall apply:- (i) I GIVE DEVISE AND BEQUEATH to my Trustee such residential property in which I may reside at the date of my death together with the household furniture, goods, chattels and effects which at the date of my death shall be owned by me and shall be in, about, or belonging to and jointed with the property upon trust to permit and allow my sons JOHN PHILLIPS and JAMES CHRISTOPHER PHILLIPS, or either of them to have the use, occupation and enjoyment of the same for a period of two (2) years from the date of my death on condition that my son JAMES CHRISTOPHER PHILLIPS shall pay all rates, taxes and outgoings from time to time as assessed or payable in respect of the property and shall keep the property and household furniture, goods, chattels and effects in good and substantial repair, order and condition and properly insured against loss or damage by fire in the name of my trustee who shall lay out any money received in respect of such insurance in replacing or reinstating the property destroyed or damaged or in purchasing similar property to be held upon and subject to the same clauses and provisions of the property destroyed or damaged; (ii) as to such residential property as I shall own as at the date of my death, to my son JAMES CHRISTOPHER PHILLIPS upon the condition that he pays to my estate sufficient monies equal to the pecuniary legacies (including any interest payable on these) provided for in this Will. AND FURTHER PROVIDED that such payment is made within two (2) [sic] (iii) [sic] years of the date of my death and that he shall be liable for the payment of all taxes, charges, and insurances in respect of the property, from the date of my death; (iv) IN THE EVENT that my son JAMES CHRISTOPHER PHILLIPS fails to make the payments referred to in the sub clause above then my property shall form part of my residuary estate; (v) I GIVE the following pecuniary legacies to be paid no later than two (2) years from the date of my death: A) to my daughter LESLEY CATLING the sum of fifty thousand dollars ($50,000.00), and in the event that she shall pre-decease me I DIRECT this shall form part of my residuary estate; B) to my daughter GLENDA PHILLIPS the sum of twenty-five thousand dollars ($25,000.00), and in the event that she should pre-decease me then I DIRECT that this legacy shall form part of my residuary estate; C) to my son ROBERT PHILLIPS the sum of seventy-five thousand dollars ($75,000.00) or in the event that he shall pre-decease me I DIRECT this legacy to his wife ROBYN PHILLIPS; D) to my son JOHN PHILLIPS the sum of one hundred thousand dollars ($100,000.00) and in the event that he shall pre-decease me then I DIRECT this legacy shall form part of my residuary estate. (vi) I GIVE the rest and residue of my estate to my son JAMES CHRISTOPHER PHILLIPS."
The 2008 Will was witnessed by Mr Bricknell and a J Creighton, a secretary, who was not called to give evidence.
Bill and Eileen's carer's notes for 2 June 2008 make no reference to Bill leaving home for any kind of appointment. Nor is there anything in the notes which sheds any light one way or the other on Bill's cognitive ability on that day.
Eileen died on 13 August 2012.
Bill died on 2 October 2014.
Probate of the 2008 Will was granted to James on 24 March 2015.
Glenda, Lesley and Robert filed their summons for provision on 13 May 2015.
John (by his tutor NSW Trustee and Guardian) filed his summons for provision on 8 September 2015.

The medical expert evidence

The first medical expert was Dr Scholem. He is a general practitioner who has been in private practice since 1982. He graduated with a Bachelor of Medicine and a Bachelor of Surgery with second class Honours from Sydney University in 1978.
Although Dr Scholem was Eileen's regular general practitioner, he also attended to Bill from time to time. He saw Bill professionally on 22 occasions between 22 September 2003 and 9 March 2007. He prepared a report for these proceedings based on his notes of his attendances on Bill. That report concluded that "[f]rom my examination of Mr Phillips between June 2005 and March 2007 I have no difficulty in confirming that he did not have testamentary capacity throughout that period in that he had disordered thinking with lack of insight including lack of such basic knowledge as the number of his children". That conclusion was expressed in answer to a question which drew his attention to the test in Banks v Goodfellow.
There was a telling moment during Dr Scholem's cross-examination when Mr Morrissey put to him a series of assumptions to the effect of Bill having given instructions as to the precise matters set out in the 2006 Will. Mr Morrissey suggested to Dr Scholem that Bill had capacity to give those instructions, to which Dr Scholem replied with what I took to be genuine amazement by saying "not in a pink fit". In submission, Mr Morrissey sought to criticise that answer as demonstrating lack of objectivity on Dr Scholem's part. I do not accept that criticism. Dr Scholem's reaction struck me rather as one of being genuine surprise that anyone would have suggested that Bill had testamentary capacity at the time of the 2006 Will.
Dr Scholem's views on that point were further elucidated in re-examination (T162:1-48): "Q. You were also asked about the various assumptions that were put to you, and you said that you believe that those assumptions were impossible. A. Yes. Q. Why do you say that? A. Well, as I read before, Bill, when I specifically asked him one occasion, was not able to say how many children he had. If you don't know how many children you have, how can you possibly allocate money to them? He wasn't able to name his children. Q. What about in relation to if there are - there are five children? A. Mm hmm. Q. In terms of being able to work out a scheme as in which of his children deserve most and which will be second, which will be third, which will be fourth, which will be fifth, that sort of scheme, do you think that that was something that he would have been able to do? A. No. If you can't name your children and say how many you've got, how can you possibly allocate appropriately to them? Q. And even if he was having a good day so that he could name the five of his children, would your view be that on a good day that he would have been able to work out - as I said, to score them one to five, as to who deserved what? A. No. I mean, it takes really fine judgment. It takes awareness of what's, what's really going on. Q. You were asked about - and will you have page 376, which was the will of October 2006. Do you see in - one takes for instance 3A, having any concepts that his wife is receiving a certain amount per week that she can receive without suffering any reduction in the amount of any pension? Do you see that? A. Yes, I can see it, yes. Q. Do you think that Bill would have understood what the various concepts in that clause meant? A. No, no. Q. And in C1, reference to - you will see that amounts are being left to trustee, with John having rights of use and occupation, with his son paying rates, taxes and outgoings and et cetera. Do you think that he would have understood the concepts in clause C1? A. No, no. Q. And C2, the idea of James being able to receive residual property if he paid certain amounts within two years, and then tied with three in the event that he didn't make the payments for property falling into his residual estate? Do you think that he would have understood those matters? A. I don't understand those matters myself. No, no."
I formed the impression of Dr Scholem that he was a diligent and experienced general practitioner. In the witness box he was careful and impressive. I had no doubt about his independence. I accept his evidence that Bill did not have testamentary capacity at the time he made the 2006 Will.
In relation to the 2008 Will, I have not overlooked the fact that Dr Scholem's last examination of Bill was in March 2007. Two things need to be said about this. First, it appears that he was prepared to express that opinion again when asked about Bill's capacity in May 2008 by Ms Rooke of Mr Bricknell's office. Second, while some of the records set out above occasionally referred to what might be described as Bill having a "slightly better day", there is little in that evidence to suggest any prospect of real recovery and there are numerous references to likely deterioration. So understood, I have taken Dr Scholem's evidence into account (although according it slightly less weight) in reaching my conclusion in relation to the 2008 Will. I infer accordingly that Bill's cognitive ability in June 2008 would have been no better than it was as described by Dr Scholem as at October 2006 and in all likelihood would have deteriorated further from that point.
Finally, my acceptance of Dr Scholem's evidence has been fortified by the fact that there was no real challenge to his opinions either in cross-examination or in James' final submissions.
The next medical expert was Dr Abu-Arab. He is a well-qualified and experienced clinical psychologist. Both his written material and his evidence in the witness box left me in no doubt as to his independence and objectivity.
Although Dr Abu-Arab only saw Bill once, on 28 September 2007 (see paragraphs [61] to [62] above), his notes were extensive and he prepared a full report at the time. He also had available to him the 2005 report of Ms Staples. He prepared a report for these proceedings at the request of Mr Cheshire's clients in which he concluded: "Based on the information that I collected from the deceased and his son, as well as my own observations, I am happy to attest to the fact that at the time when I interviewed the deceased, on the 28th September 2007, he did not have testamentary capacity as described in your letter [a reference to the test in Banks v Goodfellow]. In my view, a person who suffers from severe cognitive dysfunction, as described above, hasn't the capacity to understand the nature of his behaviour and its effects. As described above, he was unable to purchase things on his own, write a cheque, or calculate the amount of money he should pay. Therefore, it is reasonable to suggest that someone with such extensive cognitive disability would not be able to comprehend the extent of the property of which he is disposing. He is unable to tell me the names of all of his children, and he wasn't sure how many children he had. He guessed that there were five, and asked for confirmation from his son. For all the above reasons, it was recommended to appoint the Protective Commissioner to manager the deceased's money. There is no doubt in my mind that on or after the 28th September 2007, the deceased was unable to have testamentary capacity. This includes the 2nd June 2008. In relation to earlier dates, i.e.: the 31st October 2006, I recommend referring to health professionals that saw the deceased on or after that date."
Dr Abu-Arab also gave this evidence in the course of re-examination [T204:46-T205:31]: "Q. You should see here this is an extract from the 2008 will and you see on the (v) reference to each of the four children and then the remainder to James in six; do you have that? Page 250. A. 250. Yes. Yeah, where it said, "I give the following." Yes. Q. That's right. You see that the four; Lesley, Glenda, Robert and John are mentioned in (a) through to (d) and then in (6) James; do you see that? A. Yes. Q. Do you see that there are differing provisions for each of his children? James in (6) gets the residue? A. Yes. Q. John gets 100; Robert gets 75; Glenda, 25; Lesley, 50? A. Yes. Q. In order for a testator to determine those sorts of provisions they would need to do two things; first of all, they would need to, as it were, rank their children in order of who they want to give the greater provision to and then also compare them to decide upon the final figure. Based upon your examination of William Phillips, the deceased, do you think that that's something that he would have been able to do at the time of your examination? A. When I think back to that and he was unable to name his children and he was not sure about the number of children I think that he doesn't have the capacity of doing that order and that - it's too complex for him I think. Q. Having seen him in October 2007 you've prepared a report addressing what the position is likely to have been at 2008, do you think that he would have been in a position as at June 2008 to perform that sort of exercise? A. I think he could be the same or maybe worse. Q. But not better? A. No. Q. You're agreeing with me not better? A. Not better."
I accept Dr Abu-Arab's expert opinion that Bill lacked testamentary capacity at the time he made the 2008 Will. In doing so, I accept Mr Cheshire's submissions that the Dr Abu-Arab's conclusion was well supported by his observations, including an MMSE score of 18/30. Furthermore, I accept that Dr Abu-Arab's evidence is fortified by the fact that it was never put to Dr Abu-Arab in cross-examination that his opinion was wrong. The cross-examination dealt with propositions to which Dr Abu-Arab readily and properly acceded, such as that he would have been assisted with further information concerning the 2008 Will and that Bill may have had good days and bad days, including that on some days Bill may well have been able to remember correctly the names of all of his children. However, in that regard I also accept Dr Abu-Arab's evidence in re-examination that "good days and bad days" are more usual in conditions not caused by trauma.
Dr Abu-Arab's evidence has informed my conclusion both that there was a doubt about Bill's testamentary capacity at the time he made the 2008 Will and that the doubt has not been dispelled.
The third medical expert was Dr Lee. As I have noted in paragraph [75] above, neither party called Dr Lee and each was content to rely upon his various examination notes of Bill, the Certificate and his explanatory letter (see paragraphs [74] to [75] above). Dr Lee's clinical notes, which are reproduced above - and which all suggest Bill lacked capacity - have informed my conclusion that there is a real doubt about Bill's capacity in relation to both wills. I consider the balance of Dr Lee's evidence in paragraphs [147] to [150] below when considering whether the evidence of the circumstances surrounding the execution of the 2008 Will are sufficient to displace the doubt which the Court is satisfied exists about Bill's testamentary capacity at that time.
The fourth and final medical professional whose evidence was available to the Court is Ms Staples, a consultant clinical psychologist and neuropsychologist. Ms Staples provided a report in November 2005 (see paragraph [42] above). She also prepared a report for the purposes of these proceedings which included: "In brief, in October 2005 Mr Phillips was assessed as having marked cognitive and behavioural impairments consistent with the nature and severity of the brain injury he sustained in the MVA. On the whole the evident impairments represented severe disability. … Cognitive behavioural and emotional features of executive dysfunction were pervasive throughout testing and, as was apparent in the circumstances surrounding the missed appointment on 25 October 2005, interfered with Mr Phillips' capacity to reason, consider alternate options, make sound judgments, problem solve, and take rational action in everyday practical situations. There was evidence at assessment of Mr Phillips' vulnerability to the influence of others. … Heightened vulnerability to situational factors and the influence of others would be consistent with the extent of cognitive impairment found, and in particular with the presence of executive dysfunction. … In respect of whether Mr Philips had testamentary capacity when I saw him in October 2005, I note the following considerations. The nature and severity of the impairments found on neuropsychological assessment and in particular, the loss of executive capacities, raise considerable doubt as to Mr Phillips' capacity to make a will at that time. … The evident cognitive impairment would be expected to adversely impact Mr Phillips' capacity to grasp the range of possible choices, appreciate consequences and exercise sound judgement to decide a plan and clearly communicate his wishes. There was no indication at assessment in 2005 that Mr Philips was affected by delusions. Notwithstanding the aforementioned concerns, it is important to highlight that my opinion in this matter is necessarily incomplete, as I did not explicitly appraise Mr Phillips' capacity in relation to the task of making a will at assessment in 2005. I did not (and still do not) have information about Mr Phillips' estate, if he had a will at that time, if this had been changed at any time previously and/or who benefited. I cannot offer a wholly formed view as to the task specific legal criteria or give added consideration to situations specific factors relevant to Mr Phillips' individual circumstances in respect of making a will (at any of the dates in question). While making a will requires certain cognitive skills, the threshold of cognitive impairment that might preclude testamentary capacity will necessarily vary according to the complexity of the estate and how it is disposed of in the will."
In his evidence, James did not take issue with the observations of Bill recorded in either Ms Staples' 2005 report or her report for the purposes of these proceedings. Ms Staples was not required for cross-examination.
The significance of her evidence for my reasoning is twofold. First, I have relied upon her observation in her report prepared for these proceedings as to there being "considerable doubt as to Mr Phillips' capacity to make a will" in October 2005 to inform my conclusion that there exists a doubt as to his testamentary capacity in relation to the 2006 Will. When combined with other evidence to the effect that there was no real prospect of any significant improvement in Bill's condition, I have also taken into account her evidence in forming my conclusion that there is a doubt about Bill's testamentary capacity in relation to the 2008 Will.
Second, none of Ms Staples' evidence could possibly be said to have assisted James in discharging his forensic burden, a doubt having been established, to satisfy the Court that Bill had testamentary capacity in relation to either of the wills. On the contrary, her evidence adds some limited weight to a conclusion that James has failed to discharge his onus of demonstrating his father's testamentary capacity at the relevant times.

Lay witnesses

Mr Cheshire placed only minimal reliance on the evidence of Glenda, Lesley and Robert. That was not because of any implicit or explicit concession that their evidence in relation to their father's capacity was unreliable. Rather, he accepted that, for differing reasons, they had fallen out with James. This meant they did not attend the family home as regularly as they otherwise might have. Nevertheless, they did see their parents from time to time. Each of them gave evidence broadly consistent with the medical evidence, painting a picture of Bill's gradually increasing frustration and confusion, and cognitive decline. In his affidavit responses, James took issue with their evidence only in some minor respects. This has to be contrasted with his evidence in the witness box where he gave increasingly strident denials of his siblings' evidence as though to say, in effect, that Bill's difficulties were minimal.
Glenda, Lesley and Robert relied on two other lay witnesses, Ms Anne Grgurevic and Ms Lorraine Bruinink.
Ms Grgurevic is a nurse/carer who looked after Bill and Eileen from 2005 until June 2007. In broad terms, her evidence was that Mr Phillips was always very confused. In his affidavit in reply James did not challenge these two paragraphs of Ms Grgurevic's affidavit evidence: "9. Although he was mobile and able to get around the house, he needed to be accompanied and assisted when he went out. For instance, he needed help to cross the road, otherwise he might simply walk out on the road; and he needed help choosing items in the shops, getting out the right money and ensuring that he got the right change. I used to help him when he needed to withdraw money from his bank. He used the old passbooks and the Commonwealth Bank at Ryde knew him well as he was a customer for about 50 years and they would also assist him. … 20. Mr Phillips did not have good days and bad days. His condition was constant, but gradually deteriorated over the period that I cared for him."
Ms Grgurevic was also the author of two important pieces of contemporaneous evidence. First, there was a pointed summary about Bill's circumstances in a letter to the CTP insurer dated 8 December 2006 (see paragraph [52] above). Second, in a care plan which she prepared around the same time she noted that "Bill becomes confused and disoriented with any change no matter how minor. A good way to overcome this is to put an idea in his head and think it was his idea. Put the explanation and thought process to him before changing any details" (see paragraph [51] above).
In assessing Ms Grgurevic's evidence, I also note, however, that in that same care plan (and to some extent inconsistently with her evidence in paragraph 9 of her affidavit - see paragraph [104] above) she said: "BANKING Bill has the passbook account and withdraws his own money. Do not interfere with banking and allow Bill to do his banking privately. If a carer notices Bill withdrawing an extremely large amount of money don't question him. Inform agency and document it! Carers may also let James know if there is a cause of concern. If the carer lets James know then ask him to sign off nursing notes as affirmation. SHOPPING Bill & Eileen generally go shopping at Cox's Road North Ryde and occasionally at Macquarie Centre. Allow Bill to do his shopping privately unless carers need certain foods which Bill is not familiar with then carers to go into Franklins and place groceries into the troll[e]y. Then allow Bill to complete his shopping." Carers should sit with Eileen on the bench outside Franklins as Bill does take a long time complete his shopping and this reduces Eileen's mood swings."
Leave was granted to rely on Ms Grgurevic's affidavit notwithstanding she was unavailable for cross-examination. This was because she was undergoing treatment for a terminal illness. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619: "111. However, affidavit evidence, however good, which, for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted, as appropriate, if the affidavit is used with leave without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VicRp 35; [1972] VR 327, per Anderson J, at 333-334; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886, per Hamilton J, at [5]."
Mindful of the approach just referred to, in my view no discount needs to be made in relation to Ms Grgurevic's contemporaneous documents (see paragraphs [51] and [52] above). I accept them as accurate according to their terms. However, I have only given weight to Ms Grgurevic's affidavit evidence to the extent to which it is corroborated by contemporaneous records or other witnesses. That conclusion is not a criticism of Ms Grgurevic, still less a finding that her evidence should not be accepted. However, her inability to be cross-examined in circumstances where her affidavit evidence goes to the central issue of Bill's capacity and where, to some extent at least, there are inconsistencies between that evidence and her contemporary documents (see paragraph [106] above) which were not able to be explored in cross-examination, in my view it is appropriate to treat her affidavit evidence only in the way in which I have just described.
Nevertheless, even with the limitation just referred to, Ms Grgurevic's affidavit evidence is a matter to which I have given a small amount of weight in reaching my conclusion that there is a serious doubt about Bill's capacity to have made the 2006 Will, because it is consistent with the medical evidence. Again, on the basis that there is no suggestion that Bill's condition improved or was likely to improve, her evidence has also played a small, but not decisive, part in my conclusion that there is real doubt about Bill's capacity to make the 2008 Will. I have also taken her evidence into account to the same extent, mutatis mutandis, in reaching my conclusion that James has failed to satisfy the onus of demonstrating that Bill did have capacity in relation to either of the wills.
Ms Bruinink gave evidence that she commenced working as a carer for Bill and Eileen in April or May 2008 and remained in that role until Bill's death. Her evidence was that while Bill could feed himself, he was very vague and confused all of the time. She said that by 2009 Bill's condition had worsened and he had become even more vague and confused.
A difficulty with Ms Bruinink's evidence is that the Court is satisfied that she made an honest error about when she started working for Bill and Eileen. James tendered evidence of pay received by Mrs Bruinink from Trust Co no earlier than July 2009 and the Court is satisfied that is in fact when she commenced.
Notwithstanding this honest error on her part, her evidence remains of some limited assistance. While she was cross-examined vigorously in relation to her starting date of her employment, she was not cross-examined in relation to her evidence relevant to Bill's lack of capacity. I am satisfied that her evidence relates to a period commencing in around July 2009. Nevertheless, consistent with a lack of evidence that Bill's condition would ever improve and the other evidence that his condition in fact deteriorated, I have given Ms Bruinink's evidence some small, but far from decisive, weight in my conclusion both as to the existence of circumstances calling Bill's capacity into question and James' failure to discharge his onus on the question of capacity in relation to the 2008 Will only.
James relied on three lay witnesses: Ms Barbara Rizk, his own evidence and the evidence of Mr Danny Bricknell, the solicitor who prepared and witnessed both the 2006 Will and the 2008 Will. Mr Bricknell's evidence is considered in paragraphs [141] to [146] and [159] below in the context of whether James has discharged the onus of demonstrating that Bill had capacity in relation to either of those wills. I did, however, also take his evidence (such as it is) into account in concluding there was a doubt about Bill's capacity in relation to the 2008 Will.
Ms Rizk was a carer who looked after Bill and Eileen from July 2007, initially part time and then full time. Her affidavit evidence covered the period from 2007 to 2011. Her description of Bill from 2007 to 2008 paints a picture very different from the evidence of the various medical witnesses. She described Bill as friendly and talkative, although he would repeat himself often. He would reminisce to her and recite Henry Lawson poetry. He knew who he was, he knew who his wife was and he spent a lot of time talking to her. According to Ms Rizk, Bill never spoke badly to or of any of his children and was never rude to anyone. She and another carer would take Bill and Eileen up to the Cox's Road shops. Bill would chat to the shop owners. Bill would open his mail when it arrived and read it.
During the course of her cross-examination, I formed a strong impression that Ms Rizk was not an independent witness who was trying to give her evidence to the best of her recollection without regard to whose case it might benefit. Ms Rizk was clearly very much "in James' camp". For the reasons advanced by Mr Cheshire, I have approached her evidence with caution and given it little or no weight, save to the extent it was supported by contemporaneous evidence. Those reasons are: 1. Ms Rizk has remained in contact with James and conceded that in the two years since she ceased employment she had "spoken to James on the phone a few, quite a few times", as recently as the night before she gave evidence. 2. She understood the issues in these proceedings and had spoken to James about the issue of Bill's capacity "all the time throughout the years" while she was working with Bill and Eileen and on a few occasions after Bill's death. 3. When it was put to Ms Rizk that she was trying to help James with her evidence in the proceedings, her response was less than convincing and far from a denial: "I wouldn't say not really, I would - I'm just being honest about what I did and my job but at the end of the day, it is a matter between him and his family." 1. In 2007 to 2008 she did not have any formal qualifications (she did not obtain an Assistant in Nursing qualification until 2015) and her main concern (as was apparent from her daily notes) was Bill and Eileen's physical condition and making sure they were eating and drinking. 2. Her evidence about Bill's abilities was substantially inconsistent with that of the independent medical experts and James' own evidence in the District Court and the protective proceedings. 3. In the witness box, she appeared to want to underplay her knowledge of, and the effects of, Bill's brain injury. I found her evidence that she was unaware when she started to work for Bill and Eileen that he had been diagnosed as having suffered a significant brain injury to be unbelievable. She was keen to volunteer not entirely responsive answers in relation to Bill such as "No, he was functioning. The fact that he was getting up and making breakfast and could use the dishwasher and do things for himself, I saw a man able to care …". This answer was given in relation to whether or not, to her observation, Bill was forgetful prior to 2009.
Turning to James' evidence, for the reasons which follow I am unable to accept James as a reliable witness on any question in relation to Bill's capacity unless it is inherently likely, supported by contemporaneous records or is otherwise against interest. James sought to minimise or deflect any evidence which might be seen as casting doubt on Bill's capacity. He refused to accept obvious propositions, even in the face of contemporaneous documents.
James did not present as a witness who was doing his best to tell the truth. Rather, he appeared determined to present a version of events which favoured his case. However, as I develop below, that included some glaring omissions in relation to the circumstances of the creation of the 2006 Will and the 2008 Will. In expressing these conclusions, I should note that they are limited only to the question of James' evidence about Bill's capacity. While I have heard all of James' evidence (with the possible exception of some further cross-examination in relation to his assets should his claim for provision proceed), I have only been addressed by the parties on the issue of Bill's capacity.
There are four broad areas in which James' evidence did not assist his case and are the basis of the unfavourable assessment the Court has reached about his reliability as a witness. First, much of James' evidence in these proceedings was inconsistent with the evidence he had given in his affidavits in support of the approval of the settlement of Bill's District Court proceedings and for the protective proceedings. Those affidavits were generally consistent with the various medical reports suggesting that Bill had ongoing, serious cognitive difficulties. Examples of James' inconsistent evidence, which seriously undermined him as a witness of credit on this issue, included: 1. That he did "not see too much of a disparity" between his father's condition before and after the accident. 2. He did not recall his father ever being diagnosed with dementia, even though he took Bill to Dr Lee and spoke to Dr Lee about him, nor did anyone ever suggest to him that Bill had memory loss. 3. He "wouldn't sort of agree" with the proposition that Bill had sustained significant brain damage resulting in Bill having memory loss. 4. James' unqualified statement in his affidavit in the protective proceedings that "since the motor vehicle accident my father has been confused and had short term memory loss" was true only "in some respects", notwithstanding the lack of any such qualification in the affidavit. 5. James' statement in his affidavit in the protective proceedings that Bill was "unable to manage his financial affairs and I have to sign cheques and help him pay bills" was true only "on occasions", notwithstanding the lack of any such qualification in the affidavit.
The second major evidentiary area which informs the Court's conclusion concerning James' credit is the consideration that was given in 2008 to obtaining a statutory will for Eileen.
Despite his denials, it is clear that James had a real interest in the question of a statutory will for Eileen. In reaching this conclusion the Court accepts Mr Cheshire's submission that James' assertion in the witness box that he did not know the contents of his father's wills is not credible. There are two reasons for this: 1. His evidence was that Bill had told him that he (Bill) wanted the family home to stay with James, which would have meant his mother being left without a home if she had survived Bill; 2. As will become apparent from what is set out below, and contrary to James' evidence, it is clear that James was closely involved in the proposed application for a statutory will for Eileen, which included a proposal that it be in the same terms as Bill's will, with the family home being left to James.
In circumstances where James knew that he was the principal beneficiary under the 2006 Will and the 2008 Will, James had every interest to ensure that the statutory will that mirrored Bill's will was created. If Eileen predeceased Bill, then James was the principal beneficiary of the estate, in particular taking the family home. At all material times, Eileen was incapable of making a will so that, if Bill predeceased Eileen, James would only be entitled to one fifth of her estate on intestacy.
The high point of James' denials of any involvement in the proposed statutory will of Eileen was (T248:10-12): "Q: Isn't it the case that you were liaising with Mr Bricknell about the possibility of your mother making a statutory will? A. No, no, that was The Trust Company."
James gave evidence - which the Court cannot accept - that others were driving the process for a statutory will. This flies in the face of the contemporaneous evidence in Mr Bricknell's file. James is recorded as being present at the conferences. After Mr Bricknell had written to Trust Co inquiring whether it would be prepared to fund the application for a statutory will for Eileen, Mr Bricknell received a reply which caused him to write to Bill to "make an appointment for yourself and James" to speak to him about how to respond to Trust Co's letter. After Trust Co had refused the request, Mr Bricknell wrote to Bill saying that he had "discussed this (the refusal) with James after our telephone call with them last week. Could you please get James to give us a ring so we can discuss the matter further". The next letter on the subject from Mr Bricknell to Bill bears the salutation "Dear Bill (and James)". It is by reference to such contemporaneous correspondence that the Court has concluded that James' attempts to minimise or deny his involvement in the statutory will inquiries are completely incredible.
The third matter is that the episode of the statutory will concluded with a letter from Trust Co to Mr Bricknell dated 18 November 2008 which stated: "Re: Eileen and William Phillips We refer to the above client [sic] for whom Trust Company Limited (Trust) acts in the capacity as Financial Manager appointed by the Supreme Court of NSW. Mr and Mrs Phillips' son James Phillips has requested that we provide you with the following information to be stored with his father's Will held at your office. We confirm that as at the date of this letter, Mr James Phillips has not received any payments from the funds held at Trust on behalf of his parents, Eileen and William Phillips. We understand that James has provided case management, care and support to his parents since their motor vehicle accident in 2005."
In the context of everything that had gone before in relation to the statutory will, the Court has no doubt that James' motivation in procuring that letter was to protect his position to make a claim against his parents' estates as best he could once it was apparent that the possibility of Eileen having a statutory will mirroring Bill's had come to nothing. Notwithstanding the clear statement in the letter that had been provided at James' request, James sought to give evidence - which again the Court cannot accept - which was to this effect: 1. He did not know whether or not Trust Co was going to write the letter because it was for Trust Co to decide to do so. 2. He could not bring himself to agree that he had requested the letter should be sent, commencing his responses with "no, well, it's - could very well be, yes" that he had requested the letter. Eventually he conceded that he "must have". 3. The purpose of the letter was just that he "wanted it clear that I didn't expect any money for, the care that I provided". 4. The reason for the letter was to record the fact that he had "done a good job of maintaining his parents' trust fund" by not seeking any remuneration for the care which he provided.
The final aspect of James' evidence which needs to be considered is in connection with Mr Cheshire's submission that there was a "stark absence of detail in James' evidence" concerning the circumstances in which the 2006 Will and the 2008 Will had been made. The submission was that, in accordance with the decision in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 ("Ferrcom"), an inference favourable to James (in this case that Bill had testamentary capacity) should not be drawn when James had given no evidence of his observations of his father at the time those wills were executed in circumstances where it was obvious that James could have done so. The often cited passage from Ferrcom is the judgment of Handley JA (with whom Kirby P agreed, Priestley JA not deciding) at 418: "There appears to be no Australian authority which extends the principles of Jones v Dunkel to a case where a party fails to ask questions of a witness in chief. However I can see no reason why those principles should not apply when a party by failing to examine a witness in chief on some topic, indicates "as the most natural inference that the party fears to do so". This fear is then "some evidence" that such examination in chief "would have exposed facts unfavourable to the party": see Jones v Dunkel (at 320-321) per Windeyer J. Moreover in Ex parte Harper; Re Rosenfield [1964-5] NSWR 58 at 62, Asprey J, citing marks v Thompson 1 NYS 2d 215 (1937) at 218, held that inferences could not be drawn in favour of a party that called a witness who could have given direct evidence when that party refrained from asking the crucial questions."
James' affidavits in chief say almost nothing about the circumstances in which Bill made the 2006 Will and the 2008 Will. However, there was ample evidence that James lived with Bill and Eileen at all material times and provided assistance to them. He attended medical appointments with Bill. James accepted that he took Bill to see Mr Bricknell for the appointments at which both the 2006 Will and the 2008 Will were executed. In the absence of an express statement from James that he had no recollection about Bill's condition at the relevant times, I infer that James refrained from giving evidence about his father's condition at the time the wills were executed because it would not have assisted his case. Applying Ferrcom, the Court is less likely to draw an inference in favour of James' case from all of the evidence, including such other evidence as he adduced on the question of capacity at the time the 2006 Will and the 2008 Will were executed. As it happens, the Court has concluded that evidence - alone or in combination with all of the evidence - is insufficient for James to discharge his onus of demonstrating that Bill had capacity in relation to either will. The Court's reluctance to draw an inference in favour of James from that evidence reinforces that conclusion.

Legal principles

There was no dispute between the parties as to the applicable legal principles. It is convenient to record at the outset that it was common ground that the fact that this Court had made an order in relation to Bill under the Protected Estates Act 1983 (NSW) did not lead to the conclusion that Bill was conclusively to be presumed to have lacked testamentary capacity: Perpetual Trustee Company Ltd v Fairlie-Cunninghame & Anor (1993) 32 NSWLR 377 (Powell J). However, while that may be so, I accept Mr Cheshire's submission that, in many cases (of which I consider this case is an example), the fact that a person has been found incapable of managing their financial affairs provides a good starting point for establishing a doubt about that person's testamentary capacity.
The classic expression of the test for testamentary capacity was stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565: "It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
The Court's attention was then drawn to the judgment of Meagher JA (with whom Basten JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285: "44. The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. 45. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97-98; [1857] EngR 738; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. … 48. In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so 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 or, now, s 140(2) of the Evidence Act 1995."
The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275: "246 It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings". 247 In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "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 ... 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." 248 In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97]. 249 Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295. 250 In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 571, per Isaacs J. 251 I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation." 252 A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate. 253 As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." 254 In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2004 Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Ms Zlatevska prior to that time): Smith v Tebbitt (1867) L.R. 1 P&D 398, at 436 - 437. Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3P&D 64 at 67."
Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that "[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this." To that I would respectfully add his Honour's observations at [54] that: "In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses."
In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased's memory. That is not this case.
Finally, I have also relied upon Lindsay J's recent summary in Estate Stojic, Deceased [2017] NSWSC 168: "84. The concepts of "testamentary capacity" (classically explained by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565) and "knowledge and approval" are distinct. A testator might have the capacity (ability) to understand but not, in fact, understand a Will and its effect. Nevertheless, an application of each concept to particular facts generally draws upon a common factual matrix because a court's determination must be made on the whole of the available evidence. That is so, particularly, where, as in these proceedings, the parties have not adduced expert medical evidence on the specific question of "capacity". 85. In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50]- [51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53]- [70]. Decisions about "testamentary capacity" and "knowledge and approval" are necessarily fact-sensitive. 86. The ultimate question, on the facts of the particular case, is whether the Court is satisfied that a particular testamentary instrument represents the last Will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35. The proponents of a Will bear the onus of proving that fact on the balance of probabilities, taking into account the nature of the case and the gravity of matters alleged: Evidence Act 1995 NSW, section 140; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. The effect of an initial doubt about the validity of a Will is to require a vigilant examination of the whole of the evidence which the parties place before the Court; that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last Will of a free and capable testator: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 452-453."

The 2006 Will and the 2008 Will - is there a doubt?

The contemporaneous medical evidence is, in and of itself, sufficient to raise a doubt about Bill's testamentary capacity in relation to both wills. That conclusion is only fortified when the medical evidence prepared for these proceedings (from doctors giving their opinions based upon their own earlier observations of Bill) and the evidence led from James and others in relation to both the District Court proceedings and the protective proceedings are added to the equation.
Although Mr Morrissey submitted in relation to both wills that there was insufficient material to raise a doubt, he, with respect, rightly focused his arguments on the question of whether testamentary capacity had been established in relation to both wills. Mr Cheshire, on the other hand, submitted that the evidence was so strong in relation to both wills that, while the Court did not have to go so far, it could make a positive finding that Bill lacked testamentary capacity at the time he made the 2006 Will and the 2008 Will.

The 2008 Will - did Bill have testamentary capacity?

To demonstrate that Bill had testamentary capacity at the time he made the 2008 Will, Mr Morrissey placed heavy emphasis on the affidavit evidence of Bill's solicitor, Mr Bricknell, and the Certificate. He submitted that the differences between the 2006 Will and the 2008 Will constituted "minor changes" within the meaning of Dr Lee's certificate.
Mr Morrissey also drew attention to Ms Rizk's evidence of her observations about Bill's capacity. That evidence does not assist James' case for three reasons: 1. For the reasons set out in paragraph [115] above, the Court is not satisfied that Ms Rizk was a reliable, independent witness. 2. In any event, as is demonstrated from her evidence and her carer's notes, her primary focus was on Bill and Eileen's physical condition, diet and personal hygiene. It could not be said that, during the course of her duties, she had ever directed her attention specifically to the question of Bill's cognitive ability; in particular whether he could make a will. Furthermore, Ms Rizk was not (and did not purport to be) qualified to make such an assessment. 3. Closely related to the previous point, even if Ms Rizk's evidence is accepted at face value, it is summarised by her answer in the witness box (see paragraph [115(6)] above) that Bill "was functioning". In other words, her evidence goes no further than supporting the proposition that Bill could perform basic, repetitive tasks in a familiar environment. At the same time, there is ample evidence that any change to his routine or environment led to confusion and frustration. Her evidence does not cast any light on whether he had the higher order mental function required to meet the test for testamentary capacity.
Lacking any medical evidence called in his own case, Mr Morrissey was confined (in relation to the 2008 Will) to criticising the evidence of Dr Abu-Arab. He submitted that Dr Abu-Arab's evidence was not reliable because the doctor had not been provided with the 2008 Will, details of it or the notes of Mr Bricknell. That submission may be accepted as far as it goes. Dr Abu-Arab, properly, conceded that he would have been assisted in forming his opinions had he been given those documents. However, the force of the criticism of Dr Abu-Arab's evidence is completely dissipated by the fact that in cross-examining Dr Abu-Arab, Mr Morrissey did not put any of those documents to the doctor with a view to establishing that his opinion would have been any different had he seen that material. For the reasons given in paragraphs [92] to [96] above, the Court accepts Dr Abu-Arab's opinion that Bill lacked testamentary capacity at the time he made the 2008 Will.
At this point, I note again that the Court's determination as to whether James has satisfied his onus to establish Bill's testamentary capacity as at the date of execution of the 2008 Will must be determined by having regard to all the evidence. I have considered all of the evidence. Absent consideration of Mr Bricknell's evidence and the Certificate, the totality of the evidence which I have set out above has not satisfied me, on the balance of probabilities having regard to the seriousness of the question, that Bill had testamentary capacity on the day he made the 2008 Will. It is therefore necessary to examine Mr Bricknell's evidence and the Certificate with the vigilance required by the authorities.
In testamentary capacity cases the evidence of the solicitor who took instructions and drafted and witnessed the will can be of the utmost importance. In this case, and without intending any criticism of him, Mr Bricknell's evidence is of little assistance on the question of testamentary capacity in relation to the 2008 Will for the following reasons: 1. Mr Bricknell accepted that he had no independent recollection of the circumstances surrounding the execution of the 2008 Will, except possibly some knowledge of a potential family dispute which he was unable to recall whether he learned in connection with the 2008 Will or the 2006 Will. 2. His affidavit evidence was, in effect, a complete reconstruction and repetition of what could be derived from the documents on his file. 3. At its highest, his evidence was that he inferred from the execution of the 2008 Will that he must have been satisfied as to Bill's testamentary capacity by reference to the Certificate. 4. He accepted that it was possible that Bill did not have testamentary capacity but that he (Mr Bricknell) missed it. Although the Court makes no finding about this, the possibility Mr Bricknell missed Bill's lack of capacity is not implausible. This is because Ms Kalmar (see paragraph [32] above), Ms Staples (see paragraph [42] above) and Dr Scholem (see paragraph [36] to [43] above) had all noted that Bill could be verbose, which to a non-expert might have suggested Bill was capable. 5. As to the proposition that Bill did not have testamentary capacity, Mr Bricknell responded that he did not think he was qualified to answer whether or not Bill did have testamentary capacity. 6. Nothing in the evidence suggests that Mr Bricknell made any effort independently to satisfy himself as to Bill's testamentary capacity. Instead, it appears to have been his practice that where, for whatever reason, there may have been some doubt about the question he would require a medical certificate to be obtained from a general practitioner. He would rely on that certificate. 7. He had no recollection whether, at or before the time the 2008 Will was executed, he had seen Ms Rooke's notes of what Dr Scholem had told her.
Putting Ms Rooke's notes to one side, Mr Bricknell's file is barely informative. It contains nothing relating to Bill's capacity except for the Certificate. Mr Bricknell had no actual recollection of raising the issue of Bill's capacity. Furthermore, although the file contains the 2006 Will, there is no document setting out the taking of instructions to make the changes which resulted in the 2008 Will, except for a loose, typed sheet recording the changes to the pecuniary gifts which states: "ADJUSTMENTS LESLEY CATLING $50,000 - $50,000 (STAYS THE SAME) GLENDA PHILLIPS $50,000 - $25,000 (REDUCED) ROBERT PHILLIPS $50,000 - $75,000 (INCREASED) JOHN PHILLIPS $50,000 - $100,000 (INCREASED)"
There was no evidence from Mr Bricknell or anyone else about the provenance of that document. It does not bear any holes which would suggest that it had ever been stapled or placed or pinned with other correspondence in the file. It does appear to have been folded in eight as though it had once been in an envelope or someone's pocket. There is also a loose photocopy of the document in the file. Nevertheless, the Court is unable to make any findings about the document.
Putting Ms Mr Bricknell's file note of the date of the 2008 Will - 2 June 2008 - is attached as Schedule 1. Mr Bricknell accepted that on its face it appeared more to relate to Eileen's intestate estate but in part could also relate to Bill's estate. Importantly for present purposes, it makes no reference to any specific instructions concerning the 2008 Will, the Certificate or any record of the circumstances attending the execution of the 2008 Will.
There is also an additional page, which Mr Bricknell thought would not have been made during any conference, but afterwards, being some drafting (which was ultimately included in the 2008 Will): "To my wife, Eileen Mabel Phillips for her sole use and benefit."
For completeness I should record there is in Mr Bricknell's file what appears to be an intermediate draft of the 2008 Will. A copy of the first three pages is Schedule 2 to this judgment. I describe it as "intermediate" because the specific bequests to Lesley, Glenda, Robert and John have been changed to the amounts which appear in the 2008 Will. However, the earlier parts of clause 3 are those which appear in the 2006 Will, but with handwritten amendments pointing to the final form of the 2008 Will. I infer from this that Mr Bricknell may have still had the 2006 Will on his word processing system and used it to create the 2008 Will. However, the Court can make no other inferences about the circumstances in which this "intermediate" draft was created.
It will be recalled that the Certificate provides that "This is to certify that Mr William Phillips is competent to make minor changes to his will. He will need simple and clear clarification of his changes in the will". I have assumed in favour of James' case that the Certificate was provided to Mr Bricknell at or prior to the time the 2008 Will was executed.
Even in its own terms, the Certificate raises as many questions as it answers. What are "minor changes" to the will? Was "simple and clear clarification" of any changes given? Does this qualification mean that, in Dr Lee's opinion, Bill was only capable of understanding something he was told if it was "simple and clear"?
A further difficulty is that insofar as James relies on the Certificate as evidence of Bill's testamentary capacity, it must be read in the light of Dr Lee's explanation of the Certificate set out in paragraph [75] above. That explanation (see, in particular, "I used the wording "minor changes" in the certificate because of my doubts about his capacity to make clear and sound decisions regarding his will … I would certainly not have been able to certify that Mr William George Phillips was able to make "major" changes to his will") demonstrates just how qualified Dr Lee's view of Bill's capacity at the time really was.
There is no suggestion that Dr Lee was provided with a copy of the changes proposed to be made from the 2006 Will to the 2008 Will. I do not accept Mr Morrissey's submission that those changes can confidently or necessarily be described as "minor" and the Court has no evidence what Dr Lee meant by "minor". Furthermore, there is no evidence that Bill was ever provided with the "simple and clear clarification" contemplated by Dr Lee. If that had, in fact, been done and there was evidence upon which the Court could be satisfied that it was done and that Bill had demonstrated a sufficient understanding of those explanations, then the outcome of these proceedings in relation to the 2008 Will might have been quite different. However, no such evidence exists and there are no primary facts which have been proven that would enable the Court to infer it had been done by Mr Bricknell or understood by Bill.
Two additional observations need to be made about the submission that the changes were "minor".
First, insofar as the change involved departing from the income arrangement for Eileen under the 2006 Will and leaving her the whole of his estate absolutely, it involves making a significant judgment about what would be most advantageous for Eileen. Similarly, the changes in the pecuniary legacies (see paragraph [142] above) involve making some evaluative judgments to discriminate between those beneficiaries. The overall schemes set out in Clause 3 of the two wills may appear to be superficially similar, but are materially different ways of achieving what it might be accepted was the same result - providing for Eileen and then dividing the estate. In my view, both types of change involve a level of sophistication that the accumulation of medical and other evidence which I have accepted leaves me seriously doubtful that Bill possessed.
Second, I accept Mr Cheshire's submission that when considering capacity some caution should be exercised in focussing on "changes" and asking if the testator could understand those changes. The question of capacity is not to be decided incrementally or in a piecemeal fashion from will to will. By this I mean reasoning that if the testator had capacity to make a will containing Clauses 1, 2, 3 and 4, one need only be satisfied the testator could make the change to Clause 4 if the other clauses remain the same in the subsequent will. While the nature of any changes are not irrelevant to a capacity inquiry (and can be highly relevant, for example, if undue influence or other misfeasance is alleged), the basic question remains did the testator have the capacity to make the whole of the later will? That proposition is vindicated where, as here, the later will expressly revokes all previous wills and testamentary dispositions.
Having considered Mr Bricknell's evidence and the Certificate, it is therefore now necessary to return to the fundamental question of whether, on the basis of all the evidence, the Court is satisfied on the balance of probabilities (but bearing in mind the seriousness of the question) that the 2008 Will is the last will of Bill as a free and capable testator.
The totality of the medical and other evidence which the Court has accepted from the period 2005 to 2 June 2008 has created a doubt in the Court's mind about the validity of the 2008 Will. In my view, taken at its highest, the evidence which is available to dispel that doubt is: 1. The 2008 Will is rational on its face. 2. The 2008 Will does not contain any startling, inexplicable or apparently irrational changes from the 2006 Will. 3. While I have not accepted Mr Morrissey's submission that the changes from the 2006 Will to the 2008 Will were "minor", the assets to be disposed of, and the manner of their disposition, were not particularly substantial or complex, being the family home, the proceeds of the District Court settlement and sale of Bill's business, and personal effects. 4. The 2008 Will was prepared by and ultimately executed in the presence of an experienced solicitor who the Court accepts would not have allowed the will to be executed if he (Mr Bricknell) had entertained doubts at the time about Bill's capacity. 5. Four days before the execution of the 2008 Will, Dr Lee was satisfied that Bill could make "minor" changes to his will provided he was given "simple and clear clarification" of those changes. 6. Four days before he executed the 2008 Will, Bill was able correctly to identify the names of all of his children.
Keeping firmly in mind that the question relates to Bill's' capacity on 2 June 2008 to make the 2008 Will, when the Court weighs the matters referred to in the preceding paragraph against all the other evidence, it is left with a substantial doubt (rather than merely a residual doubt) which precludes the formation of a belief that the 2008 Will is the will of Bill as a free and capable testator. James has not established that Bill had testamentary capacity on the balance of probabilities (bearing in mind the seriousness of the matter to be proved).
The most significant features of this case which inform this conclusion are: 1. The weight of the medical evidence (in particular Dr Abu-Arab) that Bill was impaired in memory, reflection and reasoning. One particular issue deserves special mention. I have not overlooked that on the evidence Bill could sometimes recall who his children were. However, there is also clear evidence that sometimes he could not. Those fluctuations mean that the Court cannot draw the requisite level of assurance from Dr Lee's evidence that Bill could correctly recall his children four days before Bill executed the 2008 Will. 2. The absence of any contrary expert medical evidence filed by James specifically for these proceedings. 3. The absence of any contemporaneous record (or even recollection) from Mr Bricknell or anyone else about how Bill was on the day he executed the 2008 Will. 4. As has been set out in paragraph [152] above, the fact that the changes between the 2006 Will and the 2008 Will are not necessarily as simple as Mr Morrissey sought to characterise them. 5. The absence of any reliable independent lay evidence that suggested that, in general, Bill had the requisite capacity. 6. The heavily qualified nature of Dr Lee's opinion which stood behind the Certificate. In my respectful opinion, Mr Bricknell's frank concession is plainly well-founded that he would not have allowed Bill to make the 2008 Will if, at the time, he (Mr Bricknell) had seen the information in Dr Lee's letter explaining the Certificate (see paragraph [76] above). 7. The absence of any evidence from Mr Bricknell, even as to his practice, that would give the Court any confidence that he personally would have paid attention to make his own assessment of Bill's capacity when the 2008 Will was executed. On the contrary, Mr Bricknell did not consider himself qualified to make such an assessment and his practice appears to have been to "refer out" any such concerns to the testator's general practitioner (who may or may not have been qualified to make such an assessment in any event) and then rely on that practitioner's opinion.

The 2006 Will - did Bill have testamentary capacity?

For essentially the same reasons as those set out above, the Court has reached the same conclusion in relation to the 2006 Will, namely that James has failed to establish on the balance of probabilities (bearing in mind the seriousness of the matter to be proved) that Bill had testamentary capacity at the time he made the 2006 Will. That conclusion has, necessarily, been reached by reference to a more limited body of evidence so, for the avoidance of doubt, I will set out my reasoning again.
In relation to Mr Bricknell's testimony it is to be noted that his file in relation to the 2006 Will had been destroyed and was not available to him or the Court. Nor was there any suggestion that anything like the Certificate had been obtained in relation to the 2006 Will and there was no evidence of the terms of wills which Bill had made before the 2006 Will (including the one he had made only a few months earlier (see paragraph [47] above)).
I have again reminded myself that it is necessary to return to the fundamental question of whether, on the basis of all the evidence, the Court is satisfied on the balance of probabilities (but bearing in mind the seriousness of the question) that the 2006 Will is the last will of Bill as a free and capable testator.
The totality of the medical and other evidence which the Court has accepted from the period 2005 to 31 October 2006 has created a doubt in the Court's mind about the validity of the 2006 Will. In my view, taken at its highest, the evidence which is available to dispel that doubt is: 1. The 2006 Will is rational on its face. 2. The assets to be disposed of, and the manner of their disposition, were not particularly substantial or complex, being the family home, and presumably the expected but unquantified proceeds of the District Court proceedings and sale of Bill's business, and personal effects. 3. The 2006 Will was prepared by and ultimately executed in the presence of an experienced solicitor who the Court accepts would not have allowed the will to be executed if he (Mr Bricknell) had entertained doubts at the time about Bill's capacity.
Keeping firmly in mind that the question relates to Bill's capacity on 31 October 2006 to make the 2006 Will, when the Court weighs the matters referred to in the preceding paragraph against all the other evidence, it is left with a substantial doubt (rather than merely a residual doubt) which precludes the formation of a belief that the 2006 Will is the will of Bill as a free and capable testator. James has not established that Bill had testamentary capacity on the balance of probabilities (bearing in mind the seriousness of the matter to be proved).
It is necessary to be precise about "all the other evidence" referred to in the preceding paragraph. The Court has reached its conclusion by reference to all the evidence which it has accepted relating to the period up to 31 October 2006, including James' evidence which clearly relates to 2006 in his District Court affidavit sworn on 20 February 2007 (see paragraph [56] above). However, it has been fortified in that conclusion by the further evidence for the period up to and including January 2007 (see paragraphs [51] to [54] above). However, the same conclusion would have been reached without reference to that further evidence. The conclusion has not been informed by any assumption or finding as to how Bill's capacity in October 2006 might compare to his capacity in June 2008.
The most significant features of this case which inform this conclusion are: 1. The weight of the medical evidence (in particular Dr Scholem) that Bill was impaired in memory, reflection and reasoning. One particular issue deserves special mention. I have not overlooked that on the evidence Bill could sometimes recall who his children were. However, there is also clear evidence that sometimes he could not. 2. The absence of any contrary expert medical evidence filed by James specifically for these proceedings. 3. The absence of any contemporaneous record (or even recollection) from Mr Bricknell or anyone else about how Bill was on the day he executed the 2006 Will. 4. The absence of any reliable independent lay evidence that suggested that, in general, Bill had the requisite capacity. 5. The absence of any evidence that Mr Bricknell turned his mind to the question of Bill's testamentary capacity at the time Bill made the 2006 Will. 6. The absence of any evidence from Mr Bricknell, even as to his practice, that would give the Court any confidence that he personally would have paid attention to make his own assessment of Bill's capacity when the 2006 Will was executed. On the contrary, Mr Bricknell did not consider himself qualified to make such an assessment and his practice appears to have been to "refer out" any such concerns to the testator's general practitioner (who may or may not have been qualified to make such an assessment in any event) and then rely on that practitioner's opinion. There is no evidence that a doctor's opinion was sought in relation to the making of the 2006 Will.

Conclusion and further conduct of proceedings

The Court will stand the matter over to enable the parties to consider the next steps that are required in the light of these reasons. In due course the Court will make declarations that Bill lacked capacity in relation to both wills. It will be necessary for the probate granted to James to be revoked and, given the fact that this result means James' family provision claim will be pressed, an independent administrator will have to be appointed. Directions will be required in relation to the expeditious conduct of the various family provision claims that will be pressed. Given that the hearing included taking all (or virtually all) of the evidence for the entire proceedings, my tentative view is that any argument as to the costs of the determination of Bill's testamentary capacity should await determination of the balance of the proceedings. ESTATE OF PHILLIPS SCHEDULE ONE (377 KB, pdf) SCHEDULE 2 ESTATE OF PHILLIPS (2.03 MB, pdf) **********

Amendments 22 March 2017 - Schedules One and Two added DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2017

Protected Estates Act 1983(NSW)

Evidence Act 1995(NSW)s 140(2))

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