Gray v Hart & Ors - [2012] NSWSC 1435 - NSWSC 2012 case summary — Zoe

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Gray v Hart & Ors

[2012] NSWSC 1435

Supreme Court of NSW|2012-02-29|Before: White J, Powell J, Santow J, Young J, Simos J

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Source facts

Court

Supreme Court of NSW

Decision date

2012-02-29

Before

White J, Powell J, Santow J, Young J, Simos J

Catchwords

(2007) 14 BPR 26,867 Banks v Goodfellow (1870) LR 5 QB 549 Pemberton v Pemberton (1807) 13 Ves. Jun. 290
22 ER 926 Ex parte Femor
In the matter of Errington (1821) Jac 404
(2005) 63 NSWLR 547 Broughton v Broughton (1855) 5 De GM & G 160

Source

Original judgment source is linked above.

Catchwords

(2007) 14 BPR 26,867 Banks v Goodfellow (1870) LR 5 QB 549 Pemberton v Pemberton (1807) 13 Ves. Jun. 29022 ER 926 Ex parte FemorIn the matter of Errington (1821) Jac 404(2005) 63 NSWLR 547 Broughton v Broughton (1855) 5 De GM & G 160(1855) 43 ER 831 In re DoodyFisher v Doody [1893] 1 Ch 129 In re GatesPublic Trustee v Elderfield (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) Young v Cleary (Supreme Court of New South Wales, Simos J, 21 October 1997unreported) d'Apice v GutkovichEstate of Abraham (No. 2) [2010] NSWSC 1333 Battan Singh v Amirchand [1948] AC 161

Judgment (28 paragraphs)

[1]

d Cole JJA, 23 August 1995, unreported, BC9505227) Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 Bailey v Bailey (1924) 34 CLR 558 Brown v McEnroe (1890) 11 NSWR Eq 134 In the Estate of Park [1954] P 112 Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342) Gibbons v Wright (1954) 91 CLR 423 In the Will of Richards [1911] VLR 284 Re Sabatini (dec'd) (1969) 114 SJ 35 Re Estate of Poole; Public Trustee v Elderfield (Supreme Court of New South Wales, Young J, 26 April 1996, unreported) Young v Cleary (Supreme Court of New South Wales, Simos J, 21 October 1997; unreported) d'Apice v Gutkovich; Estate of Abraham (No. 2) [2010] NSWSC 1333 Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152 King v Hudson [2009] NSWSC 1013 Fulton v Andrew (1875) LR 7 HL 448 Fuller v Strum [2002] 2 All ER 87 Nock v Austin (1918) 25 CLR 519 Vernon v Watson [2002] NSWSC 600 Texts Cited: Jacobs Law of Trusts in Australia, 7th ed Mason and Handler, Succession Law and Practice, LexisNexis Category: Principal judgment Parties: Beatrice Anne Gray (Plaintiff) Coralie Anne Hart (1st Defendant) Richard Bernard Spinak (2nd Defendant) Warwick Robert Mertell (3rd Defendant) Philip Fletcher Mertell (4th Defendant) Anne Elizabeth Nickolls (5th Defendant) Representation: C Harris SC with H Bennett (Plaintiff) L Ellison SC with M Pringle (1st & 2nd Defendants) C Vindin (3rd - 5th Defendants) Teece Hodgson Ward Solicitors (Plaintiff) Pigott Stinson Lawyers (1st & 2nd Defendants) Heckenberg Lawyers (3rd - 5th Defendants) File Number(s): 2009/319943

[2]

Judgment 1HIS HONOUR: These proceedings concern the estate of Betty May Harris who died on 17 September 2009, aged 95. Mrs Harris survived her husband. She had no children. She had had three sisters and a brother: Lorna, Melva, Florence (Flo) and Fletcher. She survived them all. Her closest relatives were two nieces and two nephews. Mrs Harris' niece, Coralie Anne Hart, is the daughter of her sister, Lorna. Her nephews, Warwick and Philip Mertell, are the sons of her sister, Melva. Her niece, Anne Elizabeth Nickolls, is the daughter of her sister, Flo. Her brother, Fletcher, was killed in the Second World War. 2Mrs Harris was not close to any of her nieces or nephews. 3Mrs Harris' estate was estimated for probate purposes to be worth more than $12.5 million. It includes a house in Wyuna Road, Point Piper. Mrs Harris' neighbours on one side were Robert and Beatrice Gray. 4On 9 July 1996, Mrs Harris made a will in which she appointed Coralie Anne Hart and a solicitor, Mr Richard Spinak, as her executors. She left pecuniary legacies of $100,000 to each of her sisters Lorna and Melva, and left the rest of her estate to Coralie Hart. Mrs Hart and Mr Spinak seek an order that probate be granted of that will. As Mrs Harris' sisters predeceased her, Mrs Hart would be the sole beneficiary of her estate. 5On 23 March 2005, Mrs Harris made a will that revoked all previous wills. On 31 March 2005, she gave instructions to a solicitor, Ms Michelle Johnson. Those instructions were reduced to writing and signed by Mrs Harris and witnessed by Ms Johnson as an informal testamentary document. It said: "This document represents my testamentary wishes until I execute a formal will. I give my property and assets to Robert and Beatrice Gray equally." 6On 4 April 2005, Mrs Harris made a will that was duly witnessed revoking all prior wills. The will provided: "I give my estate which remains after payment of all debts, funeral and testamentary expenses to those of Robert Gray and Beatrice Gray who survive me and if more than one equally." 7Mr Robert Gray predeceased Mrs Harris. Mrs Beatrice Gray seeks a grant of letters of administration with the will dated 4 April 2005 annexed. 8There are five competing claimants to the estate. Coralie Hart seeks probate of the 1996 will under which she is the sole beneficiary. She is joined in that application by the executor named in that will, Mr Spinak. He played no active part in the proceedings. There is no dispute about the validity of that will. 9Mrs Gray propounds the will of 4 April 2005 under which she is the sole beneficiary. 10The other claimants are the nephews and the other niece of Mrs Harris, namely Mr Warwick and Mr Philip Mertell and Mrs Anne Nickolls. They (along with Mrs Hart) would be entitled to Mrs Harris' estate on intestacy. They contend that Mrs Harris had testamentary capacity to execute the will of 23 March 2005 revoking her 1996 will. They contend that she did not have testamentary capacity to make the will of 4 April 2005 in favour of Mrs Gray. 11Mrs Hart contends that Mrs Harris did not have testamentary capacity in March and April 2005 either to revoke the 1996 will or to make a new will in favour of Mrs Gray. She also pleaded that Mrs Harris was acting under the undue influence of Mr or Mrs Gray such that the purported wills were of no legal force. She also pleaded that Mr and Mrs Gray were instrumental in the creation of the alleged testamentary documents and the onus was on Mrs Gray to demonstrate the "righteousness of the transaction" so as to obtain a grant in her favour. 12Although the plea of undue influence was not formally abandoned, no submissions were made for Mrs Hart in support of the plea. Before probate of a will will be refused on the ground of undue influence, it must be shown that the will of the testator was overborne, that is, that the testator did not intend and desire the disposition, but was coerced into making it (Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; (2007) 14 BPR 26,867 at [63]-[64]). There was no such evidence. 13The principal issue is whether Mrs Harris had testamentary capacity to revoke her 1996 will and to make her 4 April 2005 will. The informal will can be put to one side. There would be no basis for finding that Mrs Harris had testamentary capacity to make a will in favour of Mr and Mrs Gray on 31 March 2005, but not on 4 April 2005.

[3]

Summary of key events 14Mrs Harris was born on 19 November 1913. She was 91 when she executed the testamentary documents in issue in this case. On 8 December 2004, she was admitted to St. Vincent's Hospital with a bowel obstruction. She remained in St. Vincent's Hospital until 9 February 2005. She was transferred to a geriatric care ward and came under the care of Dr Alexander Beveridge, a geriatrician. He diagnosed her as having moderately severe dementia. 15On 19 January 2005, Mrs Hart filed an application to the Guardianship Tribunal seeking orders for the appointment of guardians and a financial manager to the person and estate of Mrs Harris. On 3 February 2005, the Tribunal appointed Mrs Hart, Mrs Nickolls and Mr Warwick Mertell as Mrs Harris' guardians. The Tribunal appointed a Mr Darryl Swindells as financial manager of her estate. Mr Swindells was and is Mrs Hart's son-in-law, being married to Mrs Hart's daughter, Amanda Swindells. He is an accountant and a partner of the firm HLB Mann Judd. 16On 9 February 2005, Mrs Harris was discharged to the Lulworth House nursing home. She returned to her house at Point Piper on 15 February 2005. Her mood improved dramatically. Mrs Harris was angry that orders had been made by the Guardianship Tribunal appointing guardians and a financial manager. For many weeks she was dependent for funds on moneys supplied to her by Mrs Nickolls and on money she had to borrow from her neighbours, Mr and Mrs Gray. She found she was unable to use her chequebook as her bank account had been closed. This was a humiliation. She was particularly angry with Coralie Hart. When she returned home on 15 February 2005 she found that Mrs Hart had (in her words) ransacked her house. On 10 and 11 January 2005, Mrs Hart and her daughter, Amanda Swindells, had searched the house and removed important documents, including title deeds and a copy of her 1996 will. Mrs Harris was also angry with Mrs Hart because she considered that Mrs Hart wanted and tried to place her in a nursing home. 17On 12 March 2005, a Professor John Watson and a Ms Corinne Roberts attended on Mrs Harris in her home. Professor Watson is a consultant neurologist. Corinne Roberts is a clinical and consulting neuro-psychologist. Their attendance was arranged through the Grays. Mr Gray was present during the consultation. The purpose of the consultation was for Professor Watson and Ms Roberts to consider whether Mrs Harris had capacity to apply to the Guardianship Tribunal to review its decisions of 3 February 2005, whether she had capacity to make a will, and whether she had capacity to instruct a solicitor in relation to those matters. On 18 March 2005, Professor Watson again visited Mrs Harris to complete his assessment. It was Professor Watson's and Ms Roberts' opinion that Mrs Harris did not suffer from dementia and that she had testamentary capacity. 18On 23 March 2005, Mr Philip Jones and Ms Michelle Johnson, solicitors, attended on Mrs Harris. They were then with the firm Bartier Perry Lawyers. They were both experienced in will and probate matters. At that meeting, Mrs Harris gave instructions that she wished to cancel her will. A handwritten will was prepared and signed by Mrs Harris and witnessed by Ms Johnson and Mr Jones that revoked prior wills. Prior to the document being executed there was discussion between Ms Johnson and Mrs Harris that satisfied Ms Johnson and Mr Jones that Mrs Harris had capacity to execute that will. Mrs Harris said that she wished to think through what she would do in relation to a new will. 19Ms Johnson met Mrs Harris again at her Point Piper home on 31 March 2005 and took instructions for a new will. As I have said, an informal testamentary document was executed at that time. On 4 April 2005, Ms Johnson and Mr Jones again attended on Mrs Harris when she signed the will of that date. 20As part of a strategy of seeking to enable Mrs Harris to take back control of her finances, Ms Johnson recommended to Mrs Harris that she appoint an accountant together with Mr Gray (in conjunction with Mrs Gray) as her attorney under an enduring power of attorney. (Mrs Harris' estate was then subject to management under the Protected Estates Act 1983 (NSW)). Subsection 76(4) of that Act provided that a person could give a power of attorney, notwithstanding that the person's estate was subject to management under the Act. By subs 76(5), the power of attorney would be suspended whilst the estate of the principal was subject to management under the Act.) On 13 May 2005, Mrs Harris executed an enduring power of attorney in favour of Mr Gray and a Mr David Bassingthwaighte, an accountant and a partner with PricewaterhouseCoopers Australia. Mrs Gray was appointed as a substitute for Mr Gray if Mr Gray predeceased Mrs Harris or was unable or unwilling to act. 21Mrs Harris had been advised that the execution of an enduring power of attorney was part of a strategy to be put to the Tribunal to satisfy it that Mrs Harris was capable of managing with assistance her financial affairs and to put in place a safeguard to ensure management of her affairs if she fell ill again. Nonetheless, Mrs Harris was not happy about signing the power of attorney. She told Mrs Gray that she was not happy about the advice that she should execute a power of attorney, because she had her mental faculties. Mr Gray told Mrs Gray that Mrs Harris was unhappy about it and that it was terminated orally by Mrs Harris "basically as soon as it was done". 22Ms Johnson's retainer was terminated by Mrs Harris on 28 June 2005. She told Ms Johnson that she did not think she was the right person for the job. From Mrs Harris' perspective, the job then was to have the Tribunal's orders of 3 February 2005 revoked. 23Mrs Harris' guardians were concerned that Mrs Harris had been examined by Professor Watson. They asked for a copy of Professor Watson's report. Professor Watson had prepared a draft report that he had sent to Ms Johnson. He did not sign the report. He did not forward the draft report to Mrs Harris' guardians. 24On 11 July 2005, Mrs Hart instructed Mrs Harris' general practitioner, Dr Hardy, that he was not to communicate with the Grays. Doctor Hardy said that that was impracticable as they were her principal carers at that time and that if she and her fellow guardians insisted upon that, they should issue him with a formal written instruction. On 11 July 2005, the lawyers acting for Mrs Hart, Pigott Stinson Ratner Thom, wrote to Dr Hardy. Amongst other things, they asked for Dr Hardy's assistance in providing a referral for a further examination of Mrs Harris by Dr Beveridge. On 11 July 2005, Dr Hardy made that referral to Dr Beveridge. 25Doctor Beveridge saw Mrs Harris in her home on 1 August 2005. He was accompanied by Mr Swindells. In his report of 4 August 2005 Dr Beveridge stated that Mrs Harris still had significant dementia and did not have capacity to give a power of attorney, nor to write a will. 26On 10 August 2005, Mrs Harris' application was filed with the Guardianship Tribunal for the revocation of the financial management order. She also sought review of the guardianship order. 27On 18 August 2005, Professor Watson made a further assessment of Mrs Harris. On 26 August 2005, he provided a report to the Guardianship Tribunal. It was his opinion that Mrs Harris did not have dementia and was capable of managing her financial affairs with minimal assistance and of considering and deciding on her health care. 28On 25 September 2005, Mrs Hart, Mr Mertell and Mrs Nickolls terminated the services of Dr Hardy. They appointed Dr Raymond Seidler as Mrs Harris' general practitioner. He first visited her at her home on 30 September 2005. 29Mrs Harris' application was heard by the Guardianship Tribunal on 24 November 2005. Mrs Harris attended. She was questioned by Tribunal members for over an hour in private session, that is, with only her and the Tribunal members present. The Tribunal members included Dr Carmelle Peisah, a psychiatrist. The day's hearing before the Tribunal was recorded. 30At the conclusion of the hearing (which was lengthy), the Grays took Mrs Harris home. Mrs Harris was dissatisfied with the day's proceedings. That evening she gave to Mr and Mrs Gray an envelope that contained the testamentary documents. This was the first they knew that Mrs Harris had made a will leaving her estate to them. Mrs Harris had insisted to Ms Johnson that the wills be kept confidential. 31The Tribunal made orders on 23 February 2006. It determined not to revoke the financial management order and confirmed that Mr Swindells continue to be manager of Mrs Harris' estate subject to the supervision of the Protective Commissioner. It reviewed the guardianship orders. It concluded that because of conflict between the guardians and Mr and Mrs Gray, it was not in Mrs Harris' interests for Mrs Hart, Mrs Nickolls and Mr Mertell to continue as guardians. The Tribunal appointed the Public Guardian as Mrs Harris' guardian. 32Doctor Beveridge said the transcript of Mrs Harris' attendance before the members of the Tribunal presented: "... as exactly the same pattern as her conversation and abnormal behaviour while she was under my care in hospital for the two months prior to the writing of the supposed testamentary documents. ... she was exactly as she is represented by the Tribunal transcripts including in the two months prior to the signing of the documents in question". [CB 5/1690] It was Dr Beveridge's opinion that: "The most important evidence of her impairment is that of the Guardianship Tribunal transcripts of 24 November 2005 ... This would hopefully be apparent to any lay reader, unfamiliar with the process of diagnosis in dementia. The content and behaviour of Mrs. Harris was very impaired and it can be seen that her conversation was extremely disjointed, irrational, at times irrelevant to the questions asked, unable to be reasoned with and highly perseverative (Perseveration is the persistence of an idea or thought that remains in the thought process and answers after the context has shifted). She had an inability to concentrate on the task at hand, that is, the conversation with the Tribunal members, and became tangential and disordered in her thinking. This demonstrates that she had a marked impairment of the frontal lobe executive function, the area that would be specifically required for testamentary capacity. She relied on past memories and stories as well as indicating clearly that her affections for family members had been affected by their actions in assuring her welfare was secure. I consider that she had a delusional paranoid belief regarding their motives, which disturbed her ability to rationally make a testamentary document in April 2005. She had a complete lack of insight into her impairment that brought about Guardianship proceedings." [CB 5/1689] 33Dr Beveridge's opinion that Mrs Harris had a delusional paranoid belief regarding her relatives' motives was an important part of his reasoning, but was not essential to his conclusion that Mrs Harris' dementia so affected her frontal lobe executive function as to render her incapable of changing her will. Nonetheless, a rejection of his opinion that Mrs Harris suffered from a delusional paranoid belief about her relatives' motives would substantially weaken the weight to be given to the balance of his opinions. 34Mrs Hart pleaded that Mrs Harris demonstrated paranoia and suffered from delusions in that: a) she believed that persons with whom she had contact were attempting improperly to obtain her assets (especially her money or financial assets) for themselves; b) she believed that family members were not assisting her and/or were acting out of self-interest when, in fact, those persons were acting in the best interests of her by providing domestic care and assistance; and c) she believed that family members were not assisting her and/or were acting out of self-interest when, in fact, those persons were acting in her best interests by bringing Guardianship Tribunal Applications and discharging the duties and obligations of a guardian and financial manager, 35Mr Harris SC who appeared with Ms Bennett for Mrs Gray submitted that Mrs Harris was not deluded. Counsel submitted that Mrs Hart applied to the Guardianship Tribunal not to protect the interests of Mrs Harris, but to protect her own interests after she had discovered, through her search of Mrs Harris' possessions, that she was the sole beneficiary under the 1996 will. Counsel also submitted that Mrs Hart was not acting in Mrs Harris' best interests in that she wanted Mrs Harris to be placed in a nursing home, whereas Mrs Harris was competent to live in her own house and fiercely resisted being placed in a nursing home. Counsel also submitted that Mr Swindells, the financial manager, had not properly performed his duties as financial manager. For some months he left Mrs Harris without adequate funds. He prevented her from being able to write cheques as she was accustomed to do. Further, it was submitted that Mrs Harris' suspicion that Mrs Hart and her son-in-law were after her money was well-founded. When Mr Swindells was appointed on 3 February 2005 by the Guardianship Tribunal, it was on the basis that Mr Swindells had advised that he would not charge at all for professional fees and that the only charge he would make to the estate for his work as financial manager would be for out-of-pocket expenses. That was all he was entitled to charge. In fact, between 30 April 2005 and 30 September 2009, Mr Swindells' firm, HLB Mann Judd, charged and received fees of $206,675.80. The firm also received a fee of 0.55 per cent of moneys invested with MLC and an annual fee of 0.66 per cent of the market value of the investment with MLC. 36Mr Swindells operated a bank account for moneys in his name as trustee for Mrs Harris. This was irregular. He had no right to transfer Mrs Harris' assets into his own name. He gave a debit card for that account to his wife, Amanda. The card was also used from time to time by his daughter Rachel. Mr Swindells said that the card was only used to purchase goods for Mrs Harris. Mrs Gray contends that it should be inferred from the amounts spent when Mrs Harris was housebound, and from the nature of the establishments at which the card was used, that the card was used for the benefit of Amanda or Rachel Swindells. 37Mrs Gray also contends that Mr Swindells used Mrs Harris' money to pay legal costs for a prospective challenge by Mrs Hart to the validity of the March and April 2005 wills. 38Hence it was said that not only was Mrs Harris' belief that Mrs Hart and Mr Swindells were after her money before she died not delusional, her suspicion was justified. 39The critical question is Mrs Harris' capacity to revoke her existing will and to make a new will on 23 March and 4 April 2005. On this question I was assisted by the evidence of a geriatrician, Dr Beveridge, a neurologist, Professor Watson, and a neuro-psychologist, Ms Roberts, who had all examined Mrs Harris. They all hold high qualifications, but the views of Dr Beveridge on the one hand and Professor Watson and Ms Roberts on the other, diverged considerably. I also had the benefit of the evidence of the solicitors who took Mrs Harris instructions for her will and for her largely unsuccessful application to revoke the orders of the Guardianship Tribunal of 3 February 2005. 40With one qualification relating to the evidence of Ms Johnson, I accept the evidence of the three solicitors. The qualification concerning Ms Johnson (at [206] below) does not affect my assessment of her credibility. For the reasons which follow, I prefer the opinions of Professor Watson and Ms Roberts to those of Dr Beveridge. 41This does not resolve the question of testamentary capacity. There is no doubt that in 2005 Mrs Harris suffered from some degree of cognitive impairment. There remains the question whether, to have testamentary capacity to make a will in favour of Mr and Mrs Gray, it was necessary that Mrs Harris be able to bring to mind each of her nephews and nieces and the strength of their claims on her estate, and if so, whether she had that capacity, or whether her beliefs were distorted by tainting her nephews and Mrs Nickolls with the conduct of Mrs Hart and Mr Swindells. 42For the reasons which follow, I have concluded that Mrs Harris had testamentary capacity both to revoke her 1996 will and to make her new will in favour of the Grays. Letters of administration with the will of 4 April 2005 annexed will be granted to Mrs Gray.

[4]

Mrs Harris' relations with her relatives and the Grays 43In her meeting with Professor Watson and Ms Roberts, Mrs Harris stated that she had completed her leaving certificate, having achieved good passes in six subjects. She did not take up paid employment after she left school. A year after she left school, her parents gave her and her sister money for a trip around the world. She married her husband, Mr Keith Harris, on 27 May 1937, at age 23. (She told Professor Watson and Ms Roberts that she had been married at about 21 or 22 years of age.) Prior to her marriage, she lived with her parents in a property in Anglesea Street, Bondi. Mrs Hart also lived in that home at that time. Mrs Harris married and left the Anglesea Street property shortly before Mrs Hart turned four. 44Mr and Mrs Harris did not have children. He ran a business manufacturing radios and, later, televisions. Mrs Hart said that after Mrs Harris moved out of the Anglesea Street property, she saw Mrs Harris regularly, sometimes two or three times a week, while she was a child. When she was 12 she moved out of her grandparents' house into a property that her parents were then renting nearby. She continued to see Mrs Harris regularly. However, she was told by her mother words to the effect that: "With Aunt Betty, it is the case that children should be seen and not heard. You should wait for Aunt Betty to speak to you first before you speak to her." 45There was little contact between Mrs Hart and Mrs Harris after Mrs Hart's childhood. Mrs Harris attended Mrs Hart's wedding in 1955. She and Mr Harris visited Mr and Mrs Hart's home on several occasions between 1964 and 1966. Mrs Hart said that throughout her adult life she followed her mother's instruction that she should not initiate contact with Mrs Harris, but rather should wait for Mrs Harris to make contact with her. Apart from possibly meeting Mrs Harris in town occasionally for a cup of coffee with her mother, Mrs Hart could not recall meeting Mrs Harris between 1966 and 1992. In her oral evidence she said she recalled talking to Mrs Harris on the phone quite often. I do not accept that evidence. For reasons which follow I do not consider Mrs Hart to be a reliable witness and I do not accept her uncorroborated evidence of her communications with Mrs Harris. 46Mr Harris died in February 1991. In late April 1991, Mrs Harris asked Mrs Hart to become a director of Mrs Harris' investment company, Girton Investments Pty Limited. Mrs Hart agreed to become a director and signed a consent to act. She did not do anything as a director. She did not have any meetings with Mrs Harris. In 1994, she telephoned Mrs Harris and asked if her house would be safe if she were a director. Mrs Harris became agitated. She said "Of course it is". She sent papers to Mrs Hart for her to resign as a director, which she did. 47The only other meaningful engagement between Mrs Hart and Mrs Harris prior to December 2004 was in 1992, when Mrs Hart visited a property owned by Mrs Harris at Burradoo. After that trip Mrs Hart did not see Mrs Harris again until she visited her in hospital on 6 January 2005. 48Mrs Hart said that she spoke by telephone to Mrs Harris at least once a month from the visit to Burradoo in 1992 until approximately 2003. Under cross-examination, Mrs Hart said that Mrs Harris called her to discuss a court case concerning a car that Mr Harris had allegedly sold. She said that Mrs Harris stopped ringing when the court case was concluded and that the court case was current when she visited Burradoo in 1992. I do not accept Mrs Hart's evidence in her affidavit that she continued to speak to Mrs Harris by telephone until approximately 2003. That evidence was substantially retracted in cross-examination. 49Thus, Mrs Hart had little contact with her aunt after 1966, apart from one visit in 1992 and a short episode where she assumed the office as a director of Girton Investments, but resigned in circumstances in which it can be inferred that Mrs Harris was less than enamoured with her. 50Mr Warwick Mertell gave evidence that when his mother (Melva) died in 2001, he took it upon himself to keep in touch with Mrs Harris. He telephoned about every three months. This evidence was not challenged and I accept it. But the last time Warwick Mertell saw Mrs Harris before 2005 was in 1992, notwithstanding that they both lived in Sydney. There was no contact at Christmas or for birthdays. 51Mr Philip Mertell had less to do with Mrs Harris. He lived in the United Kingdom from 1986. He had had some contact with his aunt when she was travelling to England and France and recalled speaking to and visiting her in the mid 1980s until the mid 1990s. She would contact him when she was in England and they would speak by telephone. 52Mrs Nickolls deposed that Mrs Harris did not share many family occasions with her or any other family members. When Mrs Nickolls was 19 (at which time Mrs Harris was in her 50s), it was proposed that she travel with Mr and Mrs Harris to Europe, but her mother ultimately did not allow it to happen. Her most frequent contact with Mrs Harris was through her teens to her early 20s when Mrs Harris was in her 50s. She observed that Mrs Harris was very devoted to her husband who did not enjoy family occasions and consequently Mrs Harris did not seek much family contact. 53Mrs Harris had fallen out with Mrs Nickolls' mother, Flo. In her 1996 will, Mrs Harris wrote that she had deliberately not provided for her sister, Flo, due to past animosity between them. 54Mrs Harris' interest was in horse racing. Her husband had been vice-chairman of the Sydney Turf Club. It appears that after her husband's death, she had no close friends. She was not close to any of her relatives. 55Mr and Mrs Gray moved into their property in Wyuna Road, Point Piper, adjacent to the property occupied by Mr and Mrs Harris at the end of 1977. From 1978 until 1984 their contact was mostly with Mr Harris. After Mr Harris' death in 1991, there was greater communication between Mr and Mrs Gray and Mrs Harris. They became better acquainted with Mrs Harris from about December 1999. Around this time, she had injured herself after falling into her empty swimming pool. Mr and Mrs Gray visited her every second day at St. Vincent's Hospital for about a month. During one visit to St. Vincent's Hospital, Mrs Gray expressed the wish to contact Mrs Harris' relatives to let them know that she was in hospital. Mrs Harris forbad it. 56Mr Harris had been convicted of a criminal offence in 1986 and sentenced to imprisonment. On another occasion when Mr and Mrs Gray visited Mrs Harris at St. Vincent's Hospital following the fall into the swimming pool, Mrs Harris complained to them that while Mr Harris was in prison she had received no support from any of her relatives whom she had not seen for years. 57Mrs Harris gave Mr and Mrs Gray a key to her Point Piper property. She gave Mrs Gray the key when she was due to be discharged from hospital in 2000 following her fall. She asked Mrs Gray to keep the key. From this time, Mr Gray helped Mrs Harris with tasks such as replacing light bulbs and wheeling out her garden refuse bin, when necessary. On about four occasions when Mrs Harris was away from her Point Piper property visiting a property she owned in Burradoo, she telephoned Mrs Gray to ask her to check on her house to make sure she had not been robbed, which Mrs Gray did. It does not seem that Mrs Harris had any closer friends than the Grays. She had fallen out with her opposite neighbours over building work of those neighbours.

[5]

Mrs Harris' living arrangements, failure to pay tax and allowing company to be deregistered 58By 2004, Mrs Harris' routine was to rise early and clean her house, of which she was very proud, each morning. She would later change and walk from Point Piper to Double Bay to shop. She took a taxi home from shopping. She did her own banking. She lived independently. She had no GP. She did not employ a cleaner for her house. She prepared her own meals. She employed a man to clean her pool and another man to tend her garden. She also employed a man to mow a small amount of grass on or outside her property. She paid her regular bills. 59Mrs Harris owned two properties in the Southern Highlands. One was a block of three units at Bowral that was tenanted. The tenancy was managed by the local real estate agent, L J Hooker. She also owned a house at Burradoo. She had a caretaker for that property. 60Mrs Harris became registered as the proprietor of lots of land on Kangaloon Road, Bowral and residential flats in Toongoon Road, Burradoo on 28 January 1992. She inherited these properties from her late husband. Mr Harris SC submitted that the land on Kangaloon Road, Bowral and Toongoon Road, Burradoo had never been included in Mrs Harris' land tax returns. The relevance of this submission was that Dr Beveridge said that Mrs Harris' failure to attend to her taxation obligations was symptomatic of dementia. An alternative hypothesis is that Mrs Harris simply avoided paying tax. If her avoidance of her tax obligations dated back as far as 1992 it would not be attributable to dementia. If that avoidance was significantly later, for example from about 1998, it might or might not be attributable to early dementia. 61There is no evidence that Mrs Harris failed to pay land tax from 1992. 62Mr Swindells deposed that after his appointment as financial manager, he obtained the name of Mrs Harris' former accountants, Hill Rogers by reviewing "a number of boxes containing financial information that had been held at Mrs Harris' house". This must have been material removed on 10 and 11 January 2005 (see para [16] above). Mr Swindells deposed that, having obtained from Hill Rogers copies of their final correspondence with Mrs Harris, including the last income tax return lodged for her and for Girton Investments Pty Limited, he determined that Mrs Harris had not lodged income tax returns for either Girton Investments or herself since 1998. He gave no evidence of there being outstanding land tax. 63It appears that Mrs Harris paid land tax. She signed a cheque for land tax in June 2005. The only properties on which land tax would have been payable by her were the Burradoo and Bowral properties. 64In its reasons of 3 February 2005, the Tribunal observed that there were many aspects of Mrs Harris' financial affairs that had been allowed to slide in relation to income tax, land tax and the deregistration of Girton Investments. The evidence does not show in what respect, if any, Mrs Harris had failed to meet her own liabilities for land tax. 65Girton Investments had owned five lots of land in Eridge Park Road, Burradoo. It sold two lots in 1998 and a further lot in 1999. On 12 July 2000, Hill Rogers advised Mrs Harris that the 1998 financial statements of Girton Investments had not been completed. Capital gains tax was payable on the sale of the lots sold in February and May 1998. Hill Rogers advised that the 1998 financial statements of Girton Investments had not been completed as Mrs Harris had advised there were considerable other expenses incurred on the properties since their purchase. Their files did not have information of such further expenses. No calculation had been made of capital gains tax that would be payable in respect of the property sold in 1999. Their calculations of the capital gain on the two properties sold in 1998 was that there was a capital gain of approximately $176,000. 66Mrs Harris terminated the services of Hill Rogers in about 1999. They had prepared personal income tax returns for her up to the years ended 30 June 1998. Mr Sweeney deposed that her personal income tax returns after that year were outstanding. Mrs Gray tendered correspondence from the Australian Taxation Office (the "ATO"). On 16 March 2001, the ATO wrote to Mrs Harris at her house at Point Piper noting that her income tax returns for the years ended 30 June 1999 and 30 June 2000 were overdue. On 12 March 2002, the ATO advised that the returns for those years and for the year ended 30 June 2001 were overdue. There was follow up correspondence in May 2002 threatening legal action. On 14 May 2002 the ATO noted that there had been a recent inquiry (it can be inferred from Mrs Harris) about lodgment of her tax returns for those periods. The ATO said that "In view of your current circumstances we will delay further action ... until 2 August 2002". It is not known what Mrs Harris said. On 27 February 2003 the ATO again wrote to Mrs Harris. It indicated that her return for the year ended 30 June 2002 was overdue. This was followed up by a letter of 15 July 2003 where the ATO stated that its records indicated that it had not received Mrs Harris' income tax return for the period from 1 July 2001 to 30 June 2002. No reference was then made to the returns for the three years 1998 to 2001. 67Counsel for Mrs Gray submitted that I should infer that Mrs Harris had attended to the filing of her income tax returns for those years. There was no evidence from an officer from the ATO as to what returns had been lodged and when. There is a number of possibilities. It may be that Mrs Harris lodged returns for the years 1998 to 2001. But Mr Swindells deposed that he engaged the services of HLB Mann Judd to prepare and lodge income tax returns for years which included those years. He deposed "the income tax payable by Girton in respect of the years 1998 to 2004 was $128,106.36. The income tax payable by Mrs Harris was $174,104.95." Although his affidavit does not expressly state that Mrs Harris had not lodged income tax returns for the years from 1998 to 2001, he did say that the records he obtained from Hill Rogers showed that Mrs Harris had not lodged income tax returns for Girton Investments or herself since that year (i.e. 1998). If he had learned that Mrs Harris had nonetheless lodged income tax returns for those years, he would have been bound to say so in order to tell the whole truth. He was not cross-examined on this evidence. Whilst for reasons below I have considerable reservations as to Mr Swindells' credit, in the light of his evidence, I do not infer from the correspondence from the ATO that returns were lodged for the years 1998 to 2001 (before they were lodged by Mr Swindells' firm, HLB Mann Judd). Rather, I infer that the ATO had made some arrangement with Mrs Harris in 2002 in relation to the lodgment of her tax returns for those three years, and it was because of this that the ATO did not refer to the outstanding 1998 to 2001 returns in its correspondence in 2003. 68Tax returns were not filed by Mrs Harris on behalf of Girton Investments since 1998. Nor were annual returns for the company lodged. Although it continued to own two blocks of land in Burradoo, it was deregistered by ASIC in 2002 for failing to lodge annual returns. The last annual return lodged for Girton Investments had been lodged electronically on 7 September 1999 by Hill Rogers. The registered office of the company was Mrs Harris' address in Wyuna Road, Point Piper. Counsel for Mrs Gray submitted that I should infer that notice of the intention to deregister would have been sent to Hill Rogers as the lodging party or registered agent of Mrs Harris. Whilst there is evidence that, in 2012, it is ASIC's practice to send invoices for annual review fees to the company's registered agent, I do not infer that when ASIC gave notice, as it was required to do under s 601AB(3) of the Corporations Act 2001 (Cth), of its proposal to deregister the company, that the notice was only given to Hill Rogers. ASIC was required to give notice of that proposal both to the company and to the company's directors. The annual return gave the company's registered office and principal place of business as Mrs Harris' address at Wyuna Road, Point Piper. I think it improbable that notice would not have been given to Mrs Harris at her Point Piper address. 69Thus, for some years before her admission to hospital in 2004, Mrs Harris had not attended to her taxation obligations and had allowed Girton Investments to become deregistered. Understandably, these were critical matters in relation to the Tribunal's decision in February 2005 to appoint a financial manager. They are some of the matters relied on by Dr Beveridge as indicating that Mrs Harris suffered from frontal lobe impairment due to dementia that affected executive thinking.

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Admission to hospital in 2004 70The first detailed assessment of Mrs Harris' cognition by a medical specialist was made by Dr Beveridge on 4 January 2005. He assessed Mrs Harris as having a "mild-moderate dementia of the Alzheimer type". He later modified that diagnosis to one of moderately-severe dementia of the Alzheimer type with atypical features. Counsel for Mrs Gray submitted that he did not sufficiently allow for Mrs Harris' physical ailments and the effect of her hospitalisation. 71On the morning of 8 December 2004, as Mr and Mrs Gray were leaving their house by car, Mrs Harris went to her gate and motioned them to stop. She was dishevelled and dressed in night attire with dark stains down her front. She asked for help and said she felt dreadful. She said that she had waited for the Grays last night but had missed them because they came home early. She had said she had vomited and had not been able to keep anything down. Mrs Gray asked why Mrs Harris did not contact her when it started. Mrs Harris said "I have had a good innings. I have come to my end. I am dying. I know I am dying. I have thought about it and I am happy to go." Mrs Gray called an ambulance. As Mrs Harris left with the ambulance officers Mrs Harris gave Mrs Gray her handbag so that she had her key, and asked Mrs Gray to stay behind and lock up the house with her key. 72The notes of the ambulance officer and the hospital notes on Mrs Harris' admission reported that she presented with weight loss and had been unable to eat for 12 days. She was put onto IV fluids. The nursing notes record her being melancholic and saying that she would rather be dead. The notes of the ambulance officer recorded her as being alert and oriented, but pale and obviously dehydrated. A Mini-Mental State Examination ("MMSE") was carried out on her admission. She recorded a score of 22 out of 27. An MMSE is a screening tool for cognitive function. The form used by St Vincent's Hospital stated that if a patient scored less than 24 out of 30, the possibility of dementia should be considered. Part of the test could not be administered because of Mrs Harris' poor vision. She did not have her glasses. Even with her glasses, Mrs Harris had very poor vision. This was due to cataracts which had been untreated both before and after her admission to hospital. 73Mrs Harris was diagnosed with a bowel obstruction. Professor Watson said, and I accept his evidence, that this would have prevented her from being able to feed herself for the days prior to her belatedly seeking help. Dr Beveridge points to her failure to call an ambulance days earlier as further indication of her suffering moderately severe dementia. 74After admission, Mrs Harris was in a ward on Level 8 South at St. Vincent's. The hospital notes for 8 December 2004 described Mrs Harris as being "generally coherent, but not fully oriented", she gave the year as 1994, she could not remember the name of the Prime Minister and could not remember the year she was born. 75Mrs Gray visited Mrs Harris in hospital on 9 December 2004. Mrs Harris identified Mrs Gray as her neighbour. A social worker present asked Mrs Gray whether she knew of Mrs Harris' relatives. Mrs Gray said she did not know her relatives. Mrs Harris said she had had nothing to do with them for years and did not want them around. She said "What has it got to do with them? Why would you be contacting them?" Mrs Gray gave evidence that the social worker said that she thought Mrs Harris had a niece in Coffs Harbour. Mrs Harris said "Yes, but I don't remember her name." She said there were two nephews who "lived down south somewhere called Mertell" but there was no point contacting them. She said "When Keith died they hid in the bushes in Wyuna Road and I went down to the street and abused them and they ran off". Mrs Harris did not mention Mrs Nickolls' name to the social worker. In a low voice she said to Mrs Gray "You know about Anne, but if you mention her I will never speak to you again". The social worker's notes of 9 December 2004 record: "Pt [patient] has competently nominated a neighbour of 34 years Beatrice Gray [xxxx yyyy (telephone number)] as person to notify in case of emergency. Pt states she has not spoken to any family members for 13 years and wishes for no one to be contacted. Pt does not have any contact number, addresses or names of her nieces and nephews. Pt's husband deceased. Pt's 2 sisters and brother deceased. ... Requested for nephews and nieces to only be contacted if she may pass away. Pt clearly states she does not want them contacted now. Pt would like Beatrice Gray to be person to notify and look after any arrangements as required." The notes are consistent with Mrs Gray's evidence referred to above. I accept that evidence. 76Mrs Harris was initially reluctant to consent to an operation for the removal of the bowel obstruction. With Mrs Gray's support, she ultimately consented to the operation. If she had not had the operation, she would have suffered a painful death. She was told that the risk of the operation was that she could suffer a cardiac arrest. In response to this Mrs Harris said words to the effect "That would solve it. You wouldn't do anything to revive me? I am absolutely clear that I don't want to be in a bed or a nursing home. I want to be well enough to go back home." She was told by a doctor that she would need time to recover, but after that she should be well enough to go home. She then gave her consent to the operation. 77A blood test on 8 December 2004 showed that Mrs Harris had very low vitamin B12 levels. This was not picked up in her treatment when she was in hospital. Professor Watson said that low vitamin B12 levels can be associated with a wide variety of neuropsychiatric abnormalities, but is treatable (3/736). It was his opinion that "it is possible that in Mrs Harris' case, severely unwell and very likely in a hyper catabolic state that the significance of the low B12 level could have been heightened." Doctor Beveridge said that if Mrs Harris had dementia due to vitamin B12 deficiency, then she would still have the dementia four months later (that is, around the time of Professor Watson's consultations with Mrs Harris), as the vitamin B12 deficiency was not redressed. Although it was not redressed in hospital, Professor Watson stated that once Mrs Harris resumed a more normal diet and received oral vitamin supplementation, it was possible that any effects of the low vitamin B12 level were ameliorated. 78Mrs Harris had surgery for the bowel obstruction on 9 December 2004. On a visit by Mrs Gray on 12 December 2004, Mrs Harris complained of being in terrible pain and said that she should have died. Nursing notes for 11 December 2004 record Mrs Harris' wishing she were at home and asking if she could just die. She was reassured. Notes for 12 December 2004 record Mrs Harris' having made repeated requests over the last few days that she did not want to have any invasive treatment and she was happy to die. Notes for the same day record her as being very confused and screaming and pushing nurses away when they got close enough to help. On 13 December 2004, the nursing notes record that Mrs Harris was confused and stated that she was "seeing lots of people in the room". A note of a medical examination on 13 December 2004 recorded that Mrs Harris was apparently confused, but on examination was alert and oriented. The doctor noted multifactorial symptoms of post-operative delirium against a background of probably mild dementia. The note was apparently that of Dr Alina Stoita, then a medical registrar. She suggested that the hospital should try to avoid morphine for pain relief as it seemed to produce hallucinations. She proposed to review Mrs Harris the next day with Dr Beveridge. 79Doctor Beveridge and Dr Stoita saw Mrs Harris on the next day, 15 December 2004. Doctor Beveridge said that the purpose of the consultation was to see whether Mrs Harris was suffering from delirium. He concluded that there was no evidence of delirium on that day once the administration of morphine had ceased. He said he would be happy to consider Mrs Harris for rehabilitation once she had improved and was starting to mobilise. That was a short, ten-minute consultation. At that time Mrs Harris seemed oriented and had a reasonable and appropriate conversation with Dr Beveridge. Dr Beveridge agreed that, if he was required to consider whether an elderly person is suffering from delirium, he must automatically consider whether they might be suffering from dementia. From the absence of any note of this consultation that Mrs Harris was suffering from dementia, it was suggested to Dr Beveridge that he must have concluded that he was then satisfied that she was not suffering from dementia. He rejected that proposition, stating that he did not test her for that at that point. He had no cognitive history other than the notes and history from his registrar and the point of the consultation on that day was to determine whether Mrs Harris was still acutely confused. She was not. He did not exclude dementia. I accept that evidence. 80Mrs Harris continued to complain about her condition, stating that she wanted to die. She was unco-operative. She refused to shower or mobilise. She was reluctant to drink and refused food. She was still in pain. On 16 December 2004, she vomited black bile whilst Mrs Gray was visiting her. 81On 17 December 2004, Mrs Harris spoke to a social worker about making a new will. The note records that Mrs Harris "said she probably should've started thinking about what to do about her affairs earlier (Joking!)" She did not ask for assistance in making a new will. The social worker's note also records: "she told me she has a niece in the North and nephews out of Sydney". 82On 20 December 2004, a physiotherapist's note recorded that her legs were oozing a lot of fluid. A nursing note on 23 December 2004 also recorded that Mrs Harris' limbs had been leaking fluid for 24 hours, that she was incontinent and had passed blood and that her skin condition was very poor. The physiotherapist's note of 22 December 2004 records that Mrs Harris was still feeling depressed and wanted the family to be notified as well as her lawyer. 83When Mrs Gray visited Mrs Harris on 21 December 2004, she had been moved to level 7 North. Mrs Gray said that she was sitting in a chair and was alert. Mrs Harris said that she was worried about her will and wanted to make a new will to get her affairs in order. She said that her nephews and nieces had done nothing for her and had not given her any comfort or support. Mrs Gray said that "You've never talked to me about them. You wouldn't name them and you would never let me contact them, so whose children are they?" Mrs Harris replied "Coralie belongs to Lorna. I was closest to Lorna. It was really Lorna's idea to give my money to Coralie. ... " Mrs Gray asked about the Mertells. Mrs Harris said "They are a pretty pathetic lot. They would be useless to me. I don't think they would be able to do anything for me. There would be no point in me asking them to do anything for me." Mrs Harris also said "You know Anne and we are not discussing her. She is a bitch." 84Mrs Harris had been accustomed to using strong language all her life. Mrs Nickolls said that she had always "sworn like a trooper". 85Mrs Harris continued to refuse to mobilise. Physiotherapy notes on 23 December 2004 recorded that she was adamant that she was not getting out of bed or sitting in the chair on that day. She refused to do so despite encouragement. 86On 23 December 2004, the notes of a social worker, Ms Kennon, recorded that Mrs Harris appeared confused and anxious in relation to her belongings. She was adamant that someone had stolen her wallet. She was given reassurance, but asked that her belongings be located. They were. Her wallet had not been stolen. Doctor Beveridge later noted that such a statement was typical of persons with dementia. 87Ms Kennon's notes of 23 December 2004 recorded that Mrs Harris appeared confused in regards to her will. She recorded that, before surgery (i.e. before 9 December 2004), Mrs Harris had told her that she had left money to her niece in Coffs Harbour. On 23 December, when this was mentioned to Mrs Harris, she was unable to recollect the conversation. However, she was able to give Ms Kennon the name of her solicitor. Ms Kennon's notes read "Pt is requesting me to contact lawyer Richard Spinak, [telephone number given]. Pt believes Richard has her will." 88Ms Kennon discussed Mrs Harris' family with her. She asked Mrs Harris if she would like her to contact her niece and nephew. She recorded that Mrs Harris appeared hesitant, that she stated that she had a niece, Coralie Hart, in Coffs Harbour, but did not have any contact numbers for her. At that stage she did not want Ms Kennon to investigate contacting any other relatives. An inquiry made by Ms Kennon on the same day to the law firm confirmed that, whilst Mr Spinak no longer worked for the firm, Mrs Harris' will was still with that firm. However, due to the Christmas holidays, no solicitors were available to discuss her affairs. Ms Kennon told this to Mrs Harris, who asked her to try to contact her niece. Mrs Harris said that she did not have any contact numbers for Coralie Hart, but believed the numbers were in the will. Mrs Harris was concerned that she may have council bills that needed to be paid. Ms Kennon suggested that she would contact Mrs Gray in relation to the mail. 89By 21 December 2004, Mrs Gray was dissatisfied with the care Mrs Harris was receiving. She spoke with a person whom she describes as a mature age man she took to be a doctor, saying that she wanted to talk about getting Mrs Harris' cataracts done. He said "we won't be doing anything about them. Her teeth have settled and a podiatrist has been booked for her feet". Mrs Gray responded by saying that the podiatrist was booked on 9 December and it would assist Mrs Harris to walk and "she surely must be at the top of the list by now". 90When Mrs Gray visited Mrs Harris on 23 December 2004 she observed that her condition had deteriorated since her admission. Mrs Harris said "You have to get me out of here". Mrs Gray said that she could not and to get out of the hospital Mrs Harris would have to walk the corridors. Mrs Harris said "I am not up to it. I am in pain." Mrs Gray said "You will not be up to anything if you don't start eating." Mrs Harris was uncomplimentary about the food. 91Doctor Beveridge saw Mrs Harris on 24 December 2004. She had been placed in a geriatric ward under his care. His registrar's notes of the consultation record that Mrs Harris was then not currently suitable for rehabilitation as she was amotivated and did not appear to be improving. She currently required a high level of care and if rehabilitation were not an option she would have to go to a nursing home or have 24-hour care at home. At that time, she was refusing both of those options. 92Mrs Harris was seen by a clinical nutritionist for the first time on 24 December 2004. The nutritionist noted that "ideally she should have been referred a lot earlier" (emphasis in original). She noted that Mrs Harris was very depressed and angry, stating that she wanted to die. The nutritionist's note records: "Apparently eating very little - it appears her nutritional intake has been appalling for at least a month (nutrition support during this admission very suboptimal)". 93On 26 December 2004 (Boxing Day), Mr and Mrs Gray visited Mrs Harris. Mrs Gray took a quantity of mail. It was all accounts. The accounts were read out. Mr Gray wrote out cheques which Mrs Harris signed. She examined each cheque closely with a magnifying glass before she signed it. It was a slow process. 94On 29 December 2004, Mrs Harris was seen by a Dr Brennan. The registrar noted that part of the plan for treating Mrs Harris was for the surgical team to do an MMSE. The Mini-Mental State Examination conducted on that day resulted in a score of 25/30. 95The hospital managed to contact Coralie Hart. On about 30 December 2004, a nurse telephoned and told Mrs Hart that her aunt Betty was in hospital. She put her through to Mrs Harris. According to Mrs Hart, there was a conversation to the following effect: "The next voice that I heard was Betty's voice. I then had a conversation with Betty to the following effect: I said: 'Are you alright?' She said: 'Yes. But I think I might have to sell Point Piper' (I assumed that Betty was referring to her home at Point Piper). I said: 'Don't be rash. You might not have to. You need to speak to your solicitor.' She said: 'He's away'. I said: 'Well, I will come down and we will try to get in touch with him'." 96Mrs Hart rang the following day. Mr Gray answered the phone. At that time Mrs Harris said that she did not want to speak with Coralie Hart. Mr Gray tried to persuade her to do so, and Mrs Harris said to ask her to ring back that night. 97According to Mrs Hart, in the second conversation, as well as the first, she said to Mrs Harris that she would come down to Sydney. According to Mrs Hart, Mrs Harris said to leave it for a few days until everybody got back to work, which she did. Mrs Hart then visited Mrs Harris for the first time on 6 January 2005. 98If Mrs Harris said the words attributed to her by Mrs Hart in the first conversation, it would show that she was at least confused as she had no need to sell her house. But I do not accept Mrs Hart's evidence that Mrs Harris said those words. There is nothing in the hospital notes or in Mrs Gray's evidence to suggest that Mrs Harris was thinking that she might need to sell her house. She was very proud of her home and if she had come to believe that she needed to sell it, it is probable that she would have made that clear to persons other than Mrs Hart. Mrs Hart was an unsatisfactory witness. There were numerous inconsistencies between her evidence in cross-examination and her affidavit evidence. Her evidence in important respects referred to below is inconsistent with other clear objective evidence (in particular, in relation to her reason for deciding to apply for guardianship and financial management orders from the Guardianship Tribunal, rather than to pursue the possibility of Mrs Harris giving a power of attorney). Her conduct in removing documents from Mrs Harris' house without authority is discreditable. 99I do not accept Mrs Hart's evidence that she told Mrs Harris she would come down to Sydney to see her. Mrs Hart said that she spoke to Mrs Harris on 30 and 31 December 2004 and on 3 January 2005. On 4 January 2005 Mrs Hart posted a letter addressed to Mrs Harris at her home in Wyuna Road, Point Piper. Her letter was dated 1 January 2005 and reads: "Dear Betty, You asked me to let you know my phone number and address. Phone [xxx yyyy] Address [xxx yyy] Coffs Harbour 2450 Hope you get well soon. Lots of love Coralie" 100Mr and Mrs Gray took the envelope containing that card to Mrs Hart in hospital on about 6 January 2005. After they gave the card to Mrs Harris she said "You had better keep that because if I die you might want to contact her." As Mrs Hart accepted in cross-examination (T248) the reason she would have addressed that card to Mrs Harris at Wyuna Road, Point Piper was because she expected that Mrs Harris would be out of hospital soon and would be home by the time the letter arrived. It was posted on 4 January 2005. Mrs Hart did not visit Mrs Harris until 6 January 2005. She made no reference in the note to her intention to visit. 101Doctor Beveridge saw Mrs Harris on 4 January 2005. He then diagnosed her as having a "mild-moderate dementia of Alzheimer type". He later modified that diagnosis, and now describes it as moderately-severe dementia of an Alzheimer type, but with atypical features. Dr Beveridge said: "I think she had an atypical Alzheimer presentation or a mixed presentation of Alzheimer's and vascular disease." (T329) 102On 4 January 2005, Dr Beveridge conducted a Mini-Mental State Examination of Mrs Harris. She scored 15/28. Things she got wrong included orientation as to place (she said she was in Bowral). Doctor Beveridge formed the opinion that there were no features of delirium, that Mrs Harris was highly perseverative and repetitive. She continued to say things such as "I want to die", "Why can't you kill me", and "I thought my insurance covered [homecare]". He said that she could not recall close relatives' details or her accountant's name. 103This last is hardly surprising if she had not used an accountant for five years. 104Doctor Beveridge recorded that Mrs Harris was "amotivated, rigid and resistant to care". 105Doctor Beveridge could not recall whether, when he carried out the MMSE on 4 January 2005, in which Mrs Harris scored 15/28, he had looked at the earlier MMSEs or not. 106Professor Watson carried out two MMSEs on Mrs Harris on 18 March and 18 August 2005. The results were 26/28 in each test. Doctor Beveridge acknowledged that those results were consistent with the two earlier MMSEs conducted at St. Vincent's and that the examination out of kilter was the one he conducted on 4 January 2005. 107However, Dr Beveridge was at pains to emphasise (whether responsively to the question asked or not (e.g. T326-327)), that his diagnosis of dementia was based upon his observations and diagnosis over an extended period in which Mrs Harris was in hospital and where he saw her regularly, and where he observed that she did not have symptoms of delirium or impaired attention, nor fluctuating levels of consciousness or fluctuating confusion, but that her presentation of confusion or cognitive impairment was consistent. 108The hospital needed the bed. Mrs Harris was resisting attempts by the hospital to feed and mobilise her. Doctor Beveridge was of the opinion that, as a priority, the hospital needed to identify the "person responsible" and someone who could provide financial management. The options were either high level care in a nursing home, or care at home with private carers. The reference to the "person responsible" was to a "person responsible" within the meaning of s 33A of the Guardianship Act 1987 (NSW). Such a person can give consent to the carrying out of medical treatment if the patient is incapable of giving her own consent. The only persons who might arguably have qualified as a "person responsible" under the Guardianship Act were Mr and Mrs Gray. But even then, it might be doubted whether they had a "close personal relationship" with Mrs Harris through "frequent personal contact" within the meaning of s 3E. In any event, the issues were not the giving or withholding of consent to medical treatment, but how the care of Mrs Harris was to be arranged where she was resistive to treatment and in need of carers either at her home or in a nursing home. 109The views expressed by the Grays on 4 January 2005 to a social worker who assumed care for Mrs Harris, a Mr Constable, was that Mrs Harris should go home with help. 110Mrs Hart visited Mrs Harris in the company of her daughter, Amanda Swindells, on 6 January 2005. They then met with Dr Beveridge and Mr Constable. Mr Constable's notes recorded that he and Dr Beveridge discussed with Mrs Hart and Mrs Swindells Mrs Harris' medical condition, the problem with her going home, the need to access her finances to pay for post-discharge care or a nursing home and the need to contact her solicitors. When they saw Mrs Harris, Mrs Hart and Mrs Swindells said that Mrs Harris was happy to see them, but was disoriented. She thought she was at Burradoo. She also said "Have you seen my beautiful view?". Mrs Hart assumed that Mrs Harris was referring to the view from her Point Piper home. She said that although there was a view from the window of Mrs Harris' room at the hospital, it was not one she would describe as "beautiful". Both Mrs Hart and Mrs Swindells said that Mrs Harris was confused during their visits. 111On 6 January 2005, Mrs Hart signed a form known as an "ACAT application" seeking approval for Mrs Harris to access residential aged care or residential respite care. She did so at the request of Mr Constable, who completed the details on the form. The form stated that it should be signed by the applicant, that is, Mrs Harris, and only in exceptional circumstances should someone else sign it. Mrs Hart signed, stating that Mrs Harris was unable to sign because she was confused. 112Mr Constable said that the reason the form sought only approval for residential aged or respite care was because he was aware that Mrs Harris' wealth was such that she would not qualify for government assistance for the provision of carers to attend on Mrs Harris at her own house. 113On 6 January 2005, Mr Constable told Mrs Gray that Mrs Harris could be discharged to a nursing home when financial matters were arranged. Mrs Gray objected. She told Mr Constable that Mrs Harris had only consented to the operation on the basis that she would not be sent to a nursing home. Mrs Gray said that Mrs Harris should be sent to her own home and that she could afford to be there. Mr Gray said words to the effect "You have left Betty sitting here for weeks waiting for these people [that is, Mrs Harris' relatives]. There is no medical reason for her having been left here. She is entitled to rehabilitation and you have not mentioned rehabilitation." Mr Constable said that Dr Beveridge did not propose any period of rehabilitation. 114Mrs Harris told Mr Constable that she wanted to go home. She told him that she could manage on her own. That was not the view of Mr Constable or Dr Beveridge. Mr Constable gave evidence that the reason he told Mrs Gray that Dr Beveridge did not propose any period of rehabilitation was that a patient was not offered rehabilitation if they did not have either the physical or cognitive ability to undergo rehabilitation. So far as he and Dr Beveridge were concerned, that was the position. Later, events proved their opinion to be wrong. 115Mrs Hart deposed that on her first or second visit to the hospital, Dr Beveridge told her that Mrs Harris was suffering from advanced dementia, needed 24-hour care, and that the best solution would be a good nursing home. Dr Beveridge reviewed Mrs Hart's affidavit and made no comment on this evidence. Accordingly I accept Mrs Hart's evidence that Dr Beveridge did express that opinion.

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Conference on 13 January 2005 120Mr Constable arranged a conference between Mrs Hart, Mrs Swindells, Mr and Mrs Gray, Dr Beveridge and himself. The meeting took place on 13 January 2005. He recorded that the purpose of the meeting was to sort out finances so that after-care plans could be made. 121There was disagreement about what was said at the meeting on 13 January 2005. However, some things are clear. Mr and Mrs Gray did not accept Dr Beveridge's opinion that Mrs Harris had moderately severe dementia. They said that Mrs Harris should not go to a nursing home, but should be discharged to her own home where she could afford to pay for carers. Secondly, Dr Beveridge did not take kindly to Mr and Mrs Gray, who were both barristers, disputing his opinion. In his report provided for the purposes of the hearing, Dr Beveridge said: "My recollection of this family meeting was one where there was significant tension and conflict between parties in the room. The Grays sat on one side, Mrs. Hart and Mrs. Swindells on the other. Mrs. Harris was not present as she would have disrupted the proceedings and was not considered able to evaluate her care and decision needs. The Grays were not accepting of the team opinions on Mrs. Harris' diagnosis, her situation and care needs. They did not accept that there might have been some background cognitive decline. Mrs. Hart and Mrs. Swindells expressed on a number of occasions their wish for Mrs. Harris to receive the best care she needed. In this meeting there was no ability to reach a consensus decision, largely in my opinion as the Grays were not agreeing that there was a problem facing Mrs. Harris. In my years of experience with family conferences I do not remember another with the level of adversarial approach by participants. The Grays remain notable in my mind for their inability to assist in an outcome for the patient. It appeared to be a matter of who was in control, and the Grays certainly were not appearing to relinquish control, even to me in this meeting to discuss my diagnosis and management issues. ... I believe that the outcome of the conference was that there was no collaboration between the parties, they remained in conflict, both suspicious of each other's motives ..." [CB 5/1707, 1708] 122Mrs Hart was certainly suspicious of the Grays. Mrs Hart's evidence was that Mrs Gray said that she and her husband should have a power of attorney to look after Mrs Harris' affairs. According to Mrs Hart, her response was: "If you have power of attorney you could steal my inheritance." However, it was agreed at the meeting that if Mrs Harris could give a power of attorney, it would be given jointly to Mrs Hart and to Mr or Mrs Gray. Mr Constable's note of the meeting recorded that: "Meeting consisted of the two parties i.e. relatives and neighbours coming to terms with how best to resolve the issue of who should have POA, or if not given, who would be financial manager either Guardianship Tribunal/Supreme Court. Agreed if POA can be given by [patient] then go that route. [Social worker] to contact Law Society and get a list to make selection." 123Doctor Beveridge gave evidence that: "The only concrete resolution other than the antipathy and lack of trust between the two parties was to then determine if Mrs Harris could comprehend and [sign] a power of attorney. I had my doubts and later felt this was not a feasible option. But as I had not formally tested for this ability it was our undertaking to try this option, as it was less confronting than Guardianship."

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Application to Guardianship Tribunal 124After returning home, Mrs Hart changed her position. I infer that she did so after speaking to Mr Swindells. He took immediate legal advice. The following day, Mr Swindells told Mr Constable that Mrs Hart and his wife were upset about the course of the meeting on 13 January 2005, and had taken legal advice. Mr Swindells asked Mr Constable not to proceed with a power of attorney, and said they would go to the Guardianship Tribunal. 125Mrs Hart and Mrs Swindells said that this course was taken because Dr Beveridge had said that Mrs Harris did not have the capacity to execute a power of attorney. I do not accept that evidence. It is not consistent with the evidence of Dr Beveridge, Mr Constable or Mrs Gray. Dr Beveridge said that it was "later" that he examined Mrs Harris for her ability to understand a power of attorney (CB7/1709). Moreover, it is contradicted by the steps Mr Constable took as recorded in his notes. After the meeting on 13 January 2005, Mr Constable contacted the Law Society and obtained the names of solicitors who might act, and contacted one such solicitor. He stopped pursuing that course of action after hearing from Mr Swindells. 126I am satisfied that having learnt that she was the beneficiary under her aunt's will, Mrs Hart decided to apply for guardianship and financial management orders in order, as she saw it, to protect her inheritance. She was suspicious that Mr and Mrs Gray would attempt to take control of Mrs Harris' finances. 127On 17 January 2005, Mrs Hart applied to the Guardianship Tribunal for orders that she and her daughter, Amanda Swindells, be appointed guardians of Mrs Harris and that she and Mr Swindells be appointed as Mrs Harris' financial manager. The application stated that: "Mrs Harris has been told of the application; I am not sure that she understands or will remember. She has said that she supports the application." 128I do not accept that Mrs Harris ever said that she supported an application that guardians be appointed to her, or that a financial manager be appointed to her estate. 129The application stated: "Mrs Harris' illness means that she cannot make decisions for herself. Her doctors advise that she needs 24-hour care, and she needs to be placed in a suitable facility that can provide the care she needs. The application for appointment of Guardian is being made to enable us to place her where she can receive the best care." 130The application included a statement of Mrs Harris' savings. Eight accounts were listed, two with the Commonwealth Bank in sums totalling $117,588, four with Westpac in sums totalling $958,344, one with a bank in France containing £487,194, and one with a bank in London containing £36,641. 131On the same day as the application was signed, Mr Swindells telephoned Mr Warwick Mertell and advised him that Mrs Harris was in St. Vincent's Hospital. He made no mention of the intention to lodge the application with the Guardianship Tribunal. 132The application was lodged with the Tribunal on 19 January 2005. On 21 January 2005, Mr Swindells told Mr Warwick Mertell that the application had been made. It was not until Friday, 28 January 2005 that a phone message was left by Coralie Hart for Mrs Nickolls to inform her that there was any problem with Mrs Harris. The message left was "There's been some drama with Betty. But don't worry - we are dealing with it. We've made an application to the Guardianship board. She's in hospital." On the Sunday, Mrs Nickolls was telephoned by Mrs Gray who had obtained Mrs Nickolls' telephone number from a mutual friend. 133On 30 January 2005, Mrs Nickolls spoke with Mrs Hart. She suggested to Mrs Hart that, if guardians were needed and a financial manager were needed, it should be three people, namely Mrs Hart, Mr Mertell and Mrs Nickolls. Mrs Hart agreed. The following day Mr Swindells telephoned Mrs Nickolls and told her that she was obviously not aware that Mrs Hart was the executor and beneficiary of Mrs Harris' will. Mrs Nickolls' note, which I accept, was that Mr Swindells said that: "no matter what I said or did the original application for carers/fmanager i.e. Coralie, Coralie Amanda and Darryl, would stand and no one would alter it and basically warned me not to try. I told him Coralie had last night agreed to the three and he replied 'well that's not happening.'" 134At the Tribunal hearing on 4 February 2005, that opposition was not maintained. But I am satisfied that Mr Swindells was instrumental in the bringing of the applications to the Guardianship Tribunal and that his motive in doing so was to obtain control over Mrs Harris' finances to protect his mother-in-law's inheritance. 135Doctor Beveridge and Mr Constable provided reports to the Guardianship Tribunal. In his report of 21 January 2005, Dr Beveridge stated: "I first met Mrs Harris on 16th December 2004 to evaluate her for the presence of delirium postoperatively. At this time, she was scoring 22/30 [sic] on MMSE cognitive screening. There had been evidence of postoperative delirium but this was clearing with cessation of morphine. I next reviewed Mrs Harris on the 24th December to assist with long-term care planning and she was declining to mobilise after the operation. There was no apparent physical reason for her immobility. Mrs Harrris was transferred to the geriatric care ward following this consultation and has been under my care for the past month, during which I have seen her at least three times a week. Over this time she has remained cognitively impaired and her most recent mental state examination score was 15/30 [sic], with no features suggestive of delirium. In spite of seeing Mrs Harris multiple times she still does not recognise me from day-to-day and interestingly when I reviewed her this week she presumed i was the kitchen staff in spite of my suit and stethoscope. She did not recognise when shown the stethoscope what it was and could not describe what profession I or my colleagues might engage in. She persistently believes she is residing in Bowral in spite of reorientation to her location at St. Vincent's Hospital. At times she does not recall her Sydney address and has had difficulty remembering the names of her neighbours. It was initially difficult to establish contact with any family or friends as she had no recall of their contact details. Mrs Harris clearly has a significant impairment with a moderate severity dementia, most likely of Alzheimer-type, with frontal features of impaired insight, planning, judgement and motivation. She remains reluctant on many occasions to mobilise or transfer out of bed. Mrs Harris has significant wealth, it appears, owning properties in Point Piper, Bowral or Burradoo as well as owning three cars which she does not drive but maintains the registration upon. She apparently has accounts in France and England with substantial amounts of money. Mrs Harris to the best of her ability in searching does not appear to have appointed a Power of Attorney. Investigation of her previous legal and financial matters indicates that she terminated the services of both her lawyers and accountants many years ago. Mrs Harris has been assisted by her neighbours Beatrice and Robert Gray, both barristers, who helped to organise her day-to-day accounts, payment of bills, car registration and reinvestment of her money. In my discussions with the Grays they describe that she did not appear to have cognitive impairment prior to hospitalisation, that she could maintain conversation and her desk and house were in reasonable order. I remain doubtful that her cognitive impairment is of recent onset only and suspect that her progressive social isolation, including terminating the services of her financial and legal advisors is likely to be representative of an insidious onset of dementia. When asked early on in the admission who her next of kin was she mentioned her niece Mrs Hart and did recall that she lives in Coffs Harbour but had no contact details. She did mention to me that her niece was the principal beneficiary of her will, which apparently is true. Our social worker Mr Constable made contact with Mrs Hart and she immediately came to Sydney to assist in the planning for Mrs Harris's care. It became apparent that Mrs Harris had alienated herself from family members and that Mrs [H]art had previously been a director of the family company. Mrs Hart was accepting of our plan for ongoing care either with full-time paid care at home or in a nursing home. In a team conference with Mrs Hart, her daughter Amanda, and Mr and Mrs Gray it was apparent that there was suspicion and conflict on both sides which does not appear to be resolvable. From the Gray's [sic] point of view as I understand it they seem to believe they would be the best financial managers for Mrs Harris as they have no vested interest in her estate. As neighbours for many years they have not encountered family members visiting Mrs Harris. Mrs Hart also wishes to be the financial manager, and appears to have Mrs Harris's interests and care as her primary goal. As she has not previously known the neighbours she appears concerned that the Grays wish to have control of her aunt's finances. Although Mrs Harris is able to discuss to some degree the role of a Power of Attorney she is inconsistent and thus I believe she is not capable of appointing one. Mrs Harris remains in hospital awaiting the appointment of a financial manager in order that her high level care requirements be able to be paid for. It is my recommendation to the Tribunal that both a guardian and financial manager be appointed for future care and decisions. There is clear demonstration of a significant impairment which makes Mrs Harris unable to participate adequately in clear informed decisions about her future care. I make no recommendation to the Tribunal as to who would be the most appropriate person for these roles as both parties appear to be genuine and caring for Mrs Harris's interests, but unfortunately are unable to come to any agreement." 136In his report to the Tribunal, Mr Constable said that Mrs Harris had expressed three opinions about her future. The first was that she wanted to go home. The second was that she did not want anyone living in her house. The third was that she refused to go to a nursing home. Mr Constable recommended that a financial manager be appointed so that payments could be made for appropriate care, as she was not capable of making decisions about payment of bills. He also recommended that an accommodation order be made, given Mrs Harris' views about nursing homes and live-in carers. He said "The latter [viz live-in carers] is not considered an option at this stage given the patients [sic] attitude. At present, Mrs Harris could not be discharged without home help." In a further report of 2 February 2005, Mr Constable noted that Mrs Harris had a history of being dismissive of important people in her life, and referred to her having dismissed two firms of solicitors, her last accountant and family members. He also observed that her behaviour to nursing staff could often be confronting and verbally aggressive without cause and that she was at risk in that she might dismiss in-home carers, but be unable to cope. He favoured residential placement in the immediate future with a review in two months to assess whether Mrs Harris could safely return home.

[10]

Orders of Guardianship Tribunal of 3 February 2005 137On 3 February 2005, the Guardianship Tribunal ordered that the estate of Mrs Harris be subject to management under the provisions of the Protected Estates Act and that Mr Swindells be appointed as her manager. It was noted that, subject to the provisions of s 25M of the Protected Estates Act, he was not authorised to deal with her estate (other than to protect assets) unless all necessary directions had been issued by the Protective Commissioner. The Tribunal also ordered that Mrs Harris be placed under guardianship and appointed Mrs Hart, Mrs Nickolls and Mr Mertell as her guardians, with power to act jointly (and not severally, but in the absence of any one guardian, any two could act). The guardians were given functions to determine where Mrs Harris could reside, to determine what health care and major and minor medical and dental treatments she could receive, to give consent on her behalf about medical or dental treatment if she were not capable of giving that consent and to make decisions on her behalf concerning major services to which she should have access. 138Mrs Harris attended the Tribunal hearing on 3 February 2005. The nursing note records: "Attended the Guardianship Tribunal with Betty. Journey there was uneventful. Once in the Tribunal hearing, Betty became quite agitated and distressed. She was verbally aggressive towards family members and the Magistrate [sic], interrupting and not taking on board what anyone was saying. I waited outside during the hearing until Betty became very distressed and aggressive. I took her for a walk and for lunch to aid in calming her down. She was very repetitive and expressing aggressive feelings towards family members, claiming 'they're just after my money', 'I'd rather die than give them anything', 'I don't even know them'. Journey home was uneventful and Betty appears in quite good spirits at time of report." 139The Tribunal members recorded the following about Mrs Harris: "4.5 Views of the person concerned The Tribunal after a break in the hearing had the opportunity of speaking to Mrs Harris. Before the break Mrs Harris had been quite argumentative but after the break she seemed to have forgotten all that and to have forgotten that there were others in the room who were sitting immediately behind her at that stage. She spoke openly and at length and presented in accordance with the medical evidence. She said she did not like it in hospital. As to food she did not remember eating anything. She was vague as to why she had gone to hospital in the first place. She did not really understand why she was before the Tribunal but she thought that there were 'some bitches who want my money.' She did not really think that she had a need for any help and she could always have a lawyer or accountant. As to who these people were she did not know. As to the Grey's [sic] they were 'nice people' and she had known them for years and she spoke of charity beginning at home and how she thought it was better to leave things to relatives. She thought she had never really seen the relatives and Coralie Hart she said she knew but had nothing really to do with her. When again asked about her accountants she tried and failed to remember who they were. She could not venture any names at all. She was vague about medication and did not really know what she took or for what. She made it clear that she wanted to go home but said that she would not have anyone live in unless she was really ill. She seemed not kindly disposed to full time care but it may have been only the living in or sleeping in to which she was really opposed. She thought she was in good health. While the Tribunal does not assess the person concerned the Tribunal could hardly fail to note the poor short-term memory on display." 140In giving its reasons for appointing Mr Swindells as financial manager, the Tribunal referred in part to his qualifications and expertise. It also relied on Mr Swindells' assurance that he would not charge at all for professional fees and that the only charge by him would be for out-of-pocket expenses. The Tribunal said: "2. ... of necessity there will be investigations to be made, ... special arrangements will need to be made with the Australian Taxation Office and the NSW Land Tax Office and with AISC [sic] because of the difficulties in connection with the estate and the non-lodgement of returns and the fact that the company which holds land in NSW has been deregistered. All of this needs to be sorted out and Mr Swindells is very well placed in the view of the members of this Tribunal to do just that. All of that is in the best interests of Mrs Harris. 3. There is some law in old cases of Mr Justice Powell suggesting that solicitors and accountants should not be appointed as managers of protected estates. The Tribunal did have regard to that. The cases are not here cited but the Tribunal is aware of Mr Justice Powell's comments. Those comments relate to double fees and the charge on an estate where a professional accountant or a professional solicitor is involved because of the fees that will be involved and then on top of that fees payable to the Office of the Protective Commissioner for supervision. In this matter the question of fees was taken up. Mr Swindells said that he would not charge at all for professional fees. The only charge would be for out of pocket expenses. This is a considerable saving to the protected estate in a matter such as this where obviously many hours of work need to be done. The work will be done competently and well in the minds of all three members of this Tribunal and without charge to the protected estate. There will of course be fees payable for supervision to the Office of the Protective Commissioner but those costs will be far less than the fees which would be payable if the Protective Commissioner were to be managed directly." 141Mr Swindells said that the Tribunal misapprehended his position. He said that he told the Tribunal he would not charge for his time. According to Mr Swindells he did not convey that where work in relation to the estate was done by other members of his firm, his firm would not charge for that work. 142In fact, Mr Swindells did charge for his time as well as for the time of all other partners and employees of HLB Mann Judd that did work on the estate. Mr Swindells did not later tell the Tribunal that it had been mistaken in its understanding of what he had said. At the second hearing on 24 November 2005, Mr Ellison SC, who then appeared for Mr Swindells, advised the Tribunal that Mr Swindells' firm had charged professional fees for preparing income tax returns and the like. He submitted that the Tribunal's reasons could not be interpreted as precluding Mr Swindells from using his own firm to prepare the tax returns and charging for their professional services. He said, no doubt on instructions, that Mr Swindells was not charging a commission, nor charging for time and trouble. That submission to the November hearing was apparently not challenged. I deal below with Mr Swindells' duties as financial manager to avoid a position of conflict between interest and duty (at [318]-[323]). He was not entitled to retain his own firm to carry out even professional services, even if he had not told the Tribunal he would not charge for his services. For the reasons below, he was not entitled to remuneration unless remuneration was allowed by the Court. He was not entitled to commission, but his firm did charge a commission on investments. Contrary to what the Tribunal was told, he and employees of his firm charged for time and trouble in carrying out non-professional work.

[11]

Discharge to Lulworth House and home 143St. Vincent's Hospital needed Mrs Harris' bed. Mrs Hart returned to Coffs Harbour shortly after the hearing in the Guardianship Tribunal. It was left to Mrs Nickolls to arrange accommodation for Mrs Harris. She arranged for Mrs Harris to be accommodated in a nursing home, Lulworth House. The intention was that this would be respite care until Mrs Harris could return home. Mrs Harris was transferred to Lulworth House on 9 February 2005. Before Mrs Harris could be admitted to the nursing home she had to have a general practitioner. She had not had a general practitioner prior to her admission to hospital. Mrs Nickolls arranged for a Dr Martin Hardy to become Mrs Harris' GP. 144Mrs Harris was admitted to Lulworth House on 9 February 2005. She reacted badly. She swore at the staff and threatened them with physical violence with her walking stick. She behaved so badly that Mrs Nickolls was asked to arrange for a full-time carer to be with Mrs Harris in the nursing home. This did not improve matters. 145On 15 February 2005, Mrs Harris was moved from the nursing home to her own home. 146I accept Mrs Nickolls' evidence that Mrs Hart said that she thought it would be best for Mrs Harris to go into a nursing home and took no part in Mrs Harris' moving home. I accept Mrs Nickolls' evidence that Mr Swindells opposed Mrs Harris' moving home and said that the house was not fit for her to return. Mrs Hart and Mrs Swindells did not return Mrs Harris' keys to enable Mrs Nickolls to gain entry to the house when she accompanied Mrs Harris on 15 February 2005. Mrs Gray made her spare key available. It was Mrs Harris' view that Mrs Hart wanted her to be put in a nursing home. Mrs Harris was not irrational in having that belief. I find that that was Mrs Hart's preference. 147Mrs Nickolls purchased food for Mrs Harris. Mrs Nickolls deposed that, on returning home, Mrs Harris quickly showed improved mobility and demeanour, but remained cranky and cantankerous. Mrs Nickolls deposed that, a few days after returning home, Mrs Harris had improved to the point of doing simple tasks herself, such as heating prepared meals. I accept that evidence. 148Amanda Swindells visited Mrs Harris on 17 February 2005. Mrs Nickolls' note was that the carer had alerted her that Mrs Harris was extremely upset after that visit and had taken an hour to try to calm her down. Dr Hardy expressed concern that after Amanda Swindells' visit, Mrs Harris was visibly distressed and her blood pressure was elevated, whereas previously it had been fine. 149Initially, Mrs Harris had full-time carers, but, as Mr Constable had predicted, she dismissed the carer on 20 February 2005. The carer was dismissed after Mrs Harris had found her asleep on the lounge with cushions on the floor. The agency telephoned Mrs Nickolls who contacted Warwick Mertell. He, his daughter Charlotte, Mrs Nickolls and the Grays all turned up to see what should be done. But Mrs Harris was adamant. She said that no one was to sleep there. Her will prevailed. 150Thereafter, contrary to predictions, Mrs Harris successfully managed by herself until she suffered a stroke in April 2007. She had one fall, but suffered no serious effects. Dr Beveridge's assessment that Mrs Harris would need either nursing home care or ongoing full-time paid care at home proved to be wrong.

[12]

Events after Mrs Harris returned to Point Piper 151Mr Swindells could not deal with the estate until he had the approval of the Protective Commissioner. 152On 1 March 2005, Mrs Harris told Mrs Nickolls that she had hired her regular gardener. Mrs Nickolls realised that Mrs Harris might not have enough cash to pay the gardener. Mrs Nickolls had left $300 with Mrs Harris on 17 February 2005, but there had been expenses. Mrs Nickolls left $200 for the gardener in cash with Mrs Gray (who used the same gardener). 153On 2 March 2005, Dr Hardy recommended to Mrs Nickolls that there should be a neurological assessment of Mrs Harris to ascertain the appropriate level of ongoing care she would need if she were to remain at home. Dr Hardy recommended Professor Watson. The Grays knew of Professor Watson as his mother had served on the Woollahra Council with Mrs Gray. Mrs Gray had tried without success to involve him in January. 154On 3 March 2005, Mrs Nickolls telephoned a Dr Bereny who was standing in for Dr Hardy, who was away, and asked that he phone Mrs Harris and arrange to see her within the next few days. Mrs Nickolls visited Mrs Harris on 4 and 6 March 2005. Mrs Harris got very upset when mentioning Mrs Hart and had to be calmed down. Mrs Nickolls' note was that Mrs Harris "hates her for wanting to put her in nursing home and take her money". On 4 March 2005, Mrs Harris told Mrs Nickolls that she had made a new will and cut Coralie Hart out of it. Later, perhaps an hour later, Mrs Harris suddenly said "Yes, I haven't made a new will." She appeared confused to Mrs Nickolls. After Mrs Nickolls saw Mrs Harris on 6 March 2005, she recorded in her diary that Mrs Harris was "still extremely upset at Coralie taking everything away from her and determined she will never get one cent of her money." Mrs Harris knew that her documents had been removed. She was angry. 155Mrs Nickolls left another $300 for Mrs Harris as she had still not received any money from Mr Swindells. 156On or about 7 March 2005, Mrs Gray telephoned Professor Watson who said that he might be able to see Mrs Harris on Saturday 12 March. It was arranged that Mr Gray would introduce him. On 7 March 2005, Mrs Harris told Mrs Gray that she was going to use a female lawyer. 157On 10 March 2005, Dr Bereny telephoned Mrs Nickolls. Mrs Nickolls' note of the conversation is as follows: "Dr Bereny phoned me - stated Betty was fine, knows time, what day it is and very with it - just a tad forgetful as you would expect of anyone even 80 or over. House and she were immaculate and when asked if she had severe dementia as stated by hospital his answer was a very definite no. Would have been disoriented and perhaps angry at 2 months' stay in hospital, but today shows no sign of dementia - just a tad forgetful and the normal you expect of someone elderly. Quite capable of living at home - some cleaning and perhaps shopping or a meal prepared would help her and relieve her of those duties." 158Mrs Nickolls noted that Mrs Harris had been living on her own without carers at that time for 19 days. 159On 11 March 2005, Mr Swindells telephoned Mrs Nickolls and told her that the previous day he had received authority to pay bills and suggested that she forward receipts for expenses to him. Mr Swindells did not provide any money to Mrs Harris until 23 May 2005. 160On 14 March 2005, Mr Gray had coffee with a solicitor, Ms Johnson, and asked her to take instructions from Mrs Harris. 161On 14 March 2005, Mr Gray wrote to Mr Swindells advising that various accounts for Energy Australia, land tax, council rates, water and sewage rates, insurance and phone had been paid by Mrs Harris by cheques drawn on 8 March 2005. Mr Swindells' response was to close the cheque account. He said that he was concerned that Mrs Harris might come to sign cheques for improper purposes. Mr Swindells opened a new account with the Commonwealth Bank in the name of "D K Swindells in trust for Betty May Harris" to which he was the sole signatory. He had no right to do so. He was Mrs Harris' financial manager, not her trustee. Mr Swindells transferred the remaining balance in the bank account for which Mrs Harris had a chequebook to the new bank account. 162On 31 March 2005, Mr Swindells wrote to Mr Gray stating that Mr Gray's assistance to Mrs Harris in making the payments referred to in Mr Gray's letter of 14 March 2005 was a deliberate and direct contravention of the orders made by the Guardianship Tribunal, whereby Mr Swindells was appointed financial manager. He threatened to take further action if Mr Gray engaged in any further activities in relation to Mrs Harris' assets. 163On 21 March 2005, Mrs Gray, at Mrs Harris' request, cashed a cheque for $600 with the Commonwealth Bank. Mrs Harris' account was closed after that. Although he had stopped the cheque account, Mr Swindells did not provide Mrs Harris with money until late May 2005. 164In April 2005, Mrs Gray spent $80 on buying bread, milk and other essentials for Mrs Harris, but Mrs Harris could not reimburse her because she did not have any money. On 27 April 2005, Mr Gray lent Mrs Harris $600 in cash and she repaid Mrs Gray's $80. 165On 6 June 2005, Mr Swindells wrote to Mr Gray stating that if Mrs Harris wanted any money in the future, Mr Gray should let him know so that he could deliver the money to her, and that there was no need for Mr Gray to ever lend Mrs Harris any money.

[13]

Consultation with Professor Watson and Ms Roberts on 12 March 2005 166The meeting with Mrs Harris on 12 March 2005 went for over three hours. Professor Watson and Ms Roberts did not then have a copy of the Guardianship Tribunal's reasons of 3 February 2005. They were aware of the orders made. Professor Watson made detailed notes. Mr Gray was present during the consultation. From time to time he intervened. Those interventions were noted. 167Whereas in hospital Mrs Harris was disoriented as to where she was, she was now oriented. She said that her address was "officially [xx] Wyuna Road, Point Piper", but the usual address was "[yy] Wentworth Place." Wentworth Place was the entrance used by Professor Watson and Ms Roberts. Mrs Harris correctly gave her age. When asked her age she said with a mild degree of humour "I am 91 ... It is so much nicer to say 2/11/13 than 91." Mrs Harris said, correctly, that she had more than one home, the other being at Burradoo in the Southern Highlands. She said, correctly, that no one else lived there at that time, apart from a cleaner. At first she said that she had no regular general practitioner. This had been the position prior to her admission to hospital. Mrs Harris then said that Dr Hardy had visited her about two weeks previously. Professor Watson subsequently confirmed this with Dr Hardy. She said that he was away at present (which was true). 168Mrs Harris gave something of a history of her early life. One of the stories she told was one that she repeated on other occasions, including at the hearing at the Tribunal in November 2005, and which she had told Dr Beveridge on earlier occasions. This was that when she was travelling on a ship in the Mediterranean, there was a fire in the engine room and passengers were required to disembark in Malta. She there sought out and found a monument recording her brother's name where he had been killed in World War 2. Doctor Beveridge says that the frequent repetition of this memory is indicative of dementia. 169Mrs Harris spoke of her late husband. She recalled his name and the business of his company. She was able accurately to recall when her husband had died and the disease from which he died. 170Mrs Harris described her life over the previous five years. She said that she spent some of the time selling off her horses. She ran her houses in Point Piper and Burradoo. She spoke of her last overseas trip about 18 months to two years previously. She said that she only ever travelled first class and described in apparently accurate detail the layout of the cabin. Mrs Harris said that she drove until recent times and had three vehicles, a Rolls Royce and a Mercedes in Point Piper, and a Peugeot in Burradoo. This was accurate. She drove until she was 85. She continued to keep up the registration of the motor vehicles. She described accurately her domestic arrangements in terms of the help she had about the grounds, the fact that she did her own house cleaning and described that for a long time she had shopped in Double Bay, principally at Woolworths and would walk to Double Bay (pointing out that it was a downhill walk) and arrange a taxi back with her shopping. She named the bank which she used at Double Bay and described her relationship with the manager and one of the senior staff. She said that their business cards were clipped to the cheque books and later produced some cheque books which did have such business cards clipped to them. 171Professor Watson asked Mrs Harris if she had investments that needed managing, such as shares. She said that she had her home in Point Piper and one at Burradoo, two lots of land opposite the Burradoo property and a "place on which there were three units". She said that the address of the units was Kangaloon Road. She could not remember the name of the street where the other property was. Mr Gray prompted with the initial sound of the road name, and she then remembered that it was Toongoon Road. Mrs Harris could not initially remember the name of the agents that were managing the units. She wondered if it were Richardson & Wrench, but then thought not. Mr Gray prompted her with the initial "L" and she remembered L J Hooker. She said she did not have any shares and had no stockbroker. Mrs Harris recalled that she had money in a bank in London. With Mr Gray's prompting the initial letter "W" she remembered that the bank was Westpac. She thought the money was in sterling. She spontaneously said that it was about $70,000 (in fact it was about £35,000, then worth about $85,000). Mr Gray offered a "forced choice" of $70,000, $90,000 and $100,000. She selected the middle figure of $90,000. However, this is of little value because, as Professor Watson said, when people are given a choice between one of three possibilities, they tend to select the middle choice. 172Mrs Harris also had money in France. Mr Gray reminded her that she had money in another overseas country and she said that it was in France. 173Professor Watson asked Mrs Harris if she had a will. She said "I cancelled it ... because of a couple of nieces who wanted my money." She said that "I want to make sure that person who thinks they're getting my money will not get it." She said that her "old will" was no longer valid as she had destroyed it or torn it up. Professor Watson recorded: "I asked about the beneficiaries in the 'old will' as she insisted it was no longer valid as she had destroyed it or torn it up. She was very fixated on this and difficult to budge for some time, returning to these issues. She said that in this old (and to her no longer valid) will the beneficiary was Coralie Hart. She told us that she had only seen Mrs Hart three or four times in her life." 174It is unlikely that Mrs Harris had destroyed or torn up a copy of her old will. She did not have the original. She had a copy, but it had been removed by Coralie Hart. It would only be if Mrs Harris had had a further copy that she would have been able to tear up (a copy of) her will. Even then, she would not have destroyed the original. However, she accurately recalled that Coralie Hart was the beneficiary. 175Mrs Harris told Professor Watson and Ms Roberts that Mrs Hart was her niece and that Coralie's mother was her sister. She said that she only put Coralie Hart in as her beneficiary at the suggestion of her deceased sister, Coralie's mother. She called Mrs Hart "some very deprecating names". She could not recall which sister's daughter Mrs Hart was. She thought it was not Lorna, who had died years ago. She recalled that Lorna was her eldest sister and thought that she had one child. She named another sister, Melva, and recalled that she had a son Warwick Mertell. It was not clear whether she thought Melva had only had one child. She recalled another sister, Florence (Flo). She said she thought Flo had a child who lived up at Coffs Harbour. In fact, Florence's child (Anne Nickolls) lived in Sydney. Coralie Hart, who lived in Coffs Harbour, was Lorna's daughter. Mrs Harris recalled that there was another niece apart from Coralie who went occasionally with her to the races. Anne Nickolls had attended the races when she was young with her mother and Mrs Harris. Professor Watson recorded that: "Mr Gray ... gave some names of these relatives in order to help us ask Mrs Harris to allocate the nieces and nephews to particular sisters, but she had trouble working this out." 176On 14 March 2005, Mrs Nickolls told Professor Watson that "... by nature Mrs Harris was never good remembering people's names, even when young." That statement was not challenged. I accept it as evidence of the fact. 177Doctor Beveridge's comments on this part of Professor Watson's report was that, where Professor Watson recorded that Mrs Harris was "very fixated on this and difficult to budge for some time", that this was an instance of perseveration, which is a manifestation of a dementia with frontal features. He said that "Mrs Harris was clearly cognitively inflexible here, 'unable to budge' indicates that she had become stuck on that idea and this in itself is quite diagnostic of a frontal impairment. It indicates cognitive inflexibility." Dr Beveridge was also of the view that Mrs Harris' insistence that she had destroyed the existing will when there was no evidence that she had done so, but rather that her copy of the will had been removed, was a sign of frontal cognitive impairment. She could not process or probably recall both items of information (i.e. that the document had been removed and that it had not been destroyed by her). Rather, according to Dr Beveridge, this indicated that she believed that the will had become invalid because she thought she had destroyed it and was fixated on this idea. Dr Beveridge also was of the opinion that calling Mrs Hart "some very deprecating names" was another instance of Mrs Harris being disinhibited, which is another feature of frontal lobe impairment. He also expressed the opinion that: "Of note was that Professor Watson documents her anger at Mrs Hart and her perception that Mrs Hart was attempting to take advantage of her. This documents at the time she had a poisoned mind against her niece and paranoid ideation regarding her." 178Doctor Beveridge was of the view that Mrs Harris' difficulty in recalling her relationships with her nephews and nieces, that is, not being able to recall the names of all of her nephews and nieces and not being able to say which niece and nephew was a child of which sister, was also a sign of her dementia. Doctor Beveridge said: "It is therefore part of her impairment that she lost the relationship connections, a common finding in people with dementia. It also clarifies that she did not have a good concept of those that had claim upon her testamentary bounty." 179Mrs Harris told Professor Watson and Ms Roberts that she had recently been ill and had been in hospital. She thought that something had happened in her abdomen. There was a small surgical scar on her left side. She thought that she had been in hospital for perhaps a week or so. She told Professor Watson and Ms Roberts that she had been looked after in St. Vincent's public hospital, not in the private hospital, although she had money to be a member of a private health fund. 180Doctor Beveridge regarded this as being further evidence of dementia. He said that Mrs Harris' references to being in the public hospital was another incidence of perseveration. She had been in a private room in the public hospital. Professor Watson and Ms Roberts did not see it this way. This was another manifestation, in their view, of an aspect of Mrs Harris' personality that she resented not having been where she thought she should be. Professor Watson considered that Mrs Harris' mistaken view that she had been in hospital only for a week was completely explicable by her suffering from delirium when she was in hospital. He said "Because you are delirious for the period of time there is a failure of attention and you can't register and therefore cannot recall you were in hospital ... the failure of recall is actually a failure to register the memory. It is common ... for people who are sick or are in intensive care to recall a very foreshortened period of time in hospital" (T399). Doctor Beveridge responded by saying that there was "no evidence" of Mrs Harris suffering from delirium after the first week in hospital, and that her behaviour in conversation in hospital was exactly as demonstrated in the Guardianship Tribunal in November 2005. In his view, it was because she suffered from organic brain disease, dementia, that she could not recall the period of time she was in hospital. 181I prefer the opinion of Professor Watson. He accurately described Mrs Harris in hospital as "a sick, old, frail, malnourished, partly blind and partly deaf woman who had deteriorated in the context of a severe acute illness and was very slow to recover." I agree with Professor Watson's opinion that the geriatric medicine staff members were fixed on a particular diagnostic model, namely dementia. The failure to respond to Mrs Harris' vitamin B12 deficiency, and to provide adequate nutrition, support that assessment. Mrs Harris' ability to look after herself after she returned home, contrary to Dr Beveridge's assessment of her need for nursing home care or the assistance of full-time home carers, indicates that Dr Beveridge had not accurately assessed the cause of her apparent incapacity in hospital. 182Mrs Harris said that after the hospital stay, she had gone back to her house. Professor Watson asked if there were people there to help her. She said that there were and that they were meant to watch her, but she got rid of them. She was very angry about them and said that they lay about in the lounge room, moved the furniture and put their feet on chairs and couches. This was accurate. It was as reported by the agency to Mrs Nickolls. Mrs Harris said that she was very upset about how they looked after her. When asked by Professor Watson whether anyone else had helped look after her at this time or before, Mrs Harris said that she had marvellous neighbours who had been helping her, even cooking meals for her. She said that the marvellous neighbours had three sons and were called the Grays. She remembered one of them was Beatrice Gray. Even though Mr Gray was in the room she did not at that time point him out as the neighbour. Some 45-60 minutes later she remembered that she had told Professor Watson and Ms Roberts her full name at the beginning of the interview and challenged "Robert" to verify this. This indicated her recall of his first name. 183Doctor Beveridge considered that her not recognising Robert Gray at that time was consistent with her presentation when he later examined her in August 2005 in the company of Mr Swindells, at which time she spoke disparagingly about Mr Swindells in the third person, although he was sitting across the room from her, in apparent forgetfulness of who was there. On the other hand, Mrs Harris did know who the Grays were and correctly acknowledged Robert Gray's presence. Because of her cataracts, Mrs Harris was partly blind, and may not have been able to see his features. Further, Mrs Harris did recognise Mr Swindells when he and Dr Beveridge saw her in August, although she did not let on that she had done so. She later told her solicitor that Mr Swindells had visited with Dr Beveridge. 184One of the matters Professor Watson stressed was that Mrs Harris had very poor vision and was somewhat deaf. She had a marked left cataract that was so opaque that there was no light reflex from the left eye. She also had a significant right cataract. Professor Watson said that before any conclusion could be drawn about cognitive impairment, the effects of her sensory deprivation had to be allowed for. 185At this point Professor Watson and Ms Roberts commenced a Mini-Mental State Examination. Mrs Harris knew that it was 2005 in March and a Saturday. She could not give the date. She could not remember the name of the Prime Minister, but correctly said that he was the second-longest serving Prime Minister and that he was a Liberal (this was in 2005, when John Howard was the Prime Minister). Mrs Harris correctly said that her local federal seat was Wentworth and that there had recently been a change in the sitting member. She became very upset and so Professor Watson and Ms Roberts changed tack. 186Doctor Beveridge's observation was that the fact that Mrs Harris became upset showed that she could not attend to the task due to a frontal impairment of attention and reasoning. He said that her becoming "upset" indicated another episode of anger and frustration, which disturbed her ability to concentrate. This he considered was indicative of frontal lobe impairment. However, at this time Mrs Harris was becoming tired and in pain. She was also by personality irascible, strong-willed and opinionated. 187Professor Watson and Ms Roberts asked questions of Mrs Harris to test her understanding of a will and what needed to be done for a will to be made. Professor Watson's report stated: "We steered her back to questions about new wills. I asked what processes one would go through to get a new will. She said 'First, I'd get the old ones out of the will. Then I would think about it.'" 188There was no dispute in this case that Mrs Harris did understand the nature of a will. Doctor Beveridge accepted this. In dealing with this part of Professor Watson's report, Dr Beveridge said: "Watson does not see fit to examine the relationships and context of conflict from the Tribunal onwards. I believe he does not have an impartial opinion as his report seems biased towards leading her through the process and discounting that the testatrix might have a disturbed perception, rather assuming that the upset she has had with the changes post Tribunal are a reasonable reaction. Mrs. Harris is reported to be using the will as a retribution by 'getting the old ones out of the will' when in fact there was only one principal beneficiary of the 1996 will, Mrs. Hart." 189The reported statement by Mrs Harris is taken by Dr Beveridge out of context. When Mrs Harris said she would first get the old ones out of the will, it was in response to a hypothetical question, not a question about Mrs Harris' own will. The allegation that Professor Watson was not acting impartially and that his report seemed biased has no foundation. The allegation reflects adversely on Dr Beveridge. As appears below, in various parts of his report, Dr Beveridge adopts the role of advocate. 190Professor Watson then asked Mrs Harris general questions about how people should decide who should be beneficiaries of the will. She gave rational answers to those questions and to general questions as to why a person might change a will. 191There was discussion about payment of bills. Professor Watson and Ms Roberts were shown a cheque that Mrs Harris had written recently in pencil. When she realised she had written the cheque in pencil and not pen, she paid cash to the man who had brought items to the house. There was discussion about car registration. Mrs Harris said that she still had her cars. Mr Gray related that she had insisted even while she was in hospital that new registrations be organised because if they lapsed, there would be complications. Mrs Harris gave a history of the personalised number plates. The discussion then turned to the guardianship orders and a power of attorney. By now she was flagging. Professor Watson reported: "We tried to explain the Guardianship Tribunal. She told us that her finances were handed over to 'someone else' at this Tribunal. She said that she wanted to be in charge of her finances and wanted to sack the other people. I asked how would she go about doing this. She said 'I would need to see a good lawyer to go to a court higher than those people'. She then said 'I would want a proper lawyer and a proper accountant. I don't know how much they would charge.' At this point she became very angry again about Coralie Hart." 192Doctor Beveridge said of this and similar passages that they indicated clearly that Mrs Harris had "disturbed perceptions about the role of the Tribunal to keep her financial position safe, whereas she believed that her money had been stolen from her." 193This was only partly true. Whilst Mrs Harris did say to the Tribunal on 24 November 2005 that her money had been stolen from her, she corrected this to say that she understood that the money had not been stolen, but was still there. She made her own inquiries of her bank to ascertain this. She did not say to Professor Watson and Ms Roberts that her money had been stolen. She said her finances had been taken away from her, as they had been. 194Professor Watson reported that he asked Mrs Harris about the concept of a power of attorney document without giving it a name. She said there was a document for "someone to replace you" and that the person "comes in and takes over things for you". When prompted with the word "power" she was able to recall the full phrase "power of attorney". She said that a person with the power of attorney could write out cheques for rates and so on. Professor Watson reported that by 15:45 Mrs Harris was virtually at the end of her tether and very angry about what had happened to her affairs. He and Ms Roberts continued with the Mini-Mental State Examination. Ms Roberts asked what State they were in as part of the examination. Professor Watson reported that "she replied with a shred of humour 'The State of New South Wales or the state of mind?'." They could not administer a complete Mini-Mental State Examination. She became very tired and irritable and it was decided that it would be better for Mrs Harris to complete the assessment on another occasion. 195Professor Watson returned on 18 March 2005 to complete his assessment. Ms Roberts did not attend on this occasion. Mrs Harris was wearing a green blouse. When Professor Watson commented on this, she said that the previous day was St. Patrick's Day. Professor Watson completed the Mini-Mental State Examination. Not all of it could be completed because of problems with Mrs Harris' eyesight. The score was 26/28. This was generally consistent with the scores of the Mini-Mental State Examinations conducted when Mrs Harris was in hospital, except for the test conducted by Dr Beveridge. Professor Watson also administered a test called Frontal Assessment Battery. This consists of tasks found to be sensitive to impaired frontal lobe functioning. Mrs Harris scored 17/18, which was normal. 196The opinion of Professor Watson following these examinations was that Mrs Harris did not have a dementia before her acute admission. She had significant sensory impairments (i.e. sight and hearing) and had been out of her normal environment. She had had an acute deterioration from which she had largely recovered. He said that, in his opinion, Mrs Harris had a "mild cognitive inefficiency". Doctor Beveridge took issue with this expression, which he said was not found in the literature. Professor Watson acknowledged that and said that he used the expression to mean a mild cognitive impairment. Professor Watson was of the opinion that Mrs Harris did not have Alzheimer's dementia nor frontal lobe dysfunction. 197After Professor Watson's second assessment on 18 March 2005, he was telephoned by Ms Johnson who was at Mrs Harris' house and about to see her to take instructions about her will. Ms Johnson asked for his and Ms Roberts' preliminary assessment of Mrs Harris' testamentary capacity. Professor Watson advised that he and Ms Roberts thought that she had testamentary capacity, mindful of the Banks v Goodfellows tests, but that Ms Johnson should make her own assessment. 198In his draft report dated 30 April 2005, Professor Watson expressed a more qualified opinion in relation to the third requirement, namely that Mrs Harris "be able to comprehend and appreciate the claims to which [she] ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison [her] affections, prevent [her] sense of right or prevent the exercise of [her] natural faculties" (Banks v Goodfellow (1870) LR 5 QB 549 at 565). He said: "I believe that Mrs Harris has a general awareness of the category of people who might have a claim upon her testamentary benefit, particularly in the absence of first degree relatives. She mentioned one niece by full name, Coralie Hart and another partially, Anne. She also mentioned all her sisters' names apparently correctly and thought that there were at least two other nieces/nephews but was not able to sheet home the exact names of these people, particularly with respect to their mothers. She did say a number of times that she had not seen any or many of these people for many years, in one case saying that she had only seen Coralie Hart three or four times in her life. Mr and Mrs Gray were of the opinion that there had not been any meaningful contact with these relatives for many years, perhaps fifteen. The final test is the ability to evaluate and discriminate between the strengths of the claims of such persons. At present I am of the opinion that Mrs Harris does have this ability in a general sense; in the particular sense that she emphatically and frequently wanted Coralie Hart removed from her will and/or her will countermanded, even though she said that she had not thought anything about a new will. If a solicitor were satisfied she could take instructions on these matters it may be possible for her to work through the family relations and/or others and reassess, evaluate and discriminate the strength of claims on her estate." 199Nonetheless, Professor Watson's evidence was that none of Mrs Harris' medical conditions, nor her general mental condition, was likely to have affected her ability to understand the nature of the act of making a will and its effect, nor to understand the extent of the property of which she was disposing, nor to identify the claims which she ought to consider, nor the value of the claims to which she ought to give effect (3/739).

[14]

Meeting with solicitors on 23 March 2005: revocation of her will 200Ms Johnson and Mr Jones attended Mrs Harris on 23 March 2005. Ms Johnson was admitted as a solicitor in 1990. She specialises in succession planning including documenting wills, powers of attorney and nominations of enduring guardian, applying for grants of representation in deceased estates and administering deceased estates and trusts. She joined the estates practice section at Bartier Perry Solicitors in July 2004. She had been asked by Mr Gray (with whom she had had professional dealings) to act for Mrs Harris. She made notes of her attendances, but said that she believed some of the notes had been misplaced and were not included in the part of the photocopied file provided to her. (She left Bartier Perry to set up practice as a sole practitioner in about July 2005.) She was aware of the requirements for testamentary capacity in Banks v Goodfellow. Mr Jones was engaged as a consultant solicitor with Bartier Perry. He had been admitted in 1963 and had practised extensively in wills, probate and estate planning. 201Mr Jones' file note of the attendance on 23 March 2005 is as follows: "Attending with Michelle Johnson at the home of Mrs Harris at Point Piper. Whilst Michelle was out of the room ringing Mrs Harris's doctor I conducted a general conversation with Mrs Harris. We spoke about her recent accident when she fell and injured herself in her home, the weather concentrating on last nights [sic] storm, and the recent tennis match involving Lleyton Hewitt and the conduct of tennis players generally. She also mentioned her interest in racing. She was lucid, particularly for her age which I understand is over 90. The only time she seemed a little confused when was [sic] Michelle later asked her who was the prime minister and she could not recall. However, generally I saw no reason to suspect she was incapable of making decisions in relation to her Will. Mrs Harris mentioned on a couple of occasions that she had assets exceeding $30 million. She was absolutely adamant that she wanted to cancel her existing Will, even though this meant that she would not have a Will and if she died in the meantime her nieces and nephews would equally inherit her estate. She wanted to have a little time to think through who she wanted to be the beneficiaries under her Will. She did not want her estate to go to any charities. Several times she referred to her niece who had applied to the Tribunal for Mrs Harris to be put into a nursing home, and that she did not want her niece to benefit from her estate. Her friend Robert (a barrister) introduced us when we arrived but left before we had any discussions about the Will. Michelle prepared a revocation of any existing Wills. The first document could not be read by Mrs Harris but the second document was written out in larger print, and with the aid of a magnifying glass mrs Harris was able to read and then sign. I am confident she fully understood what she was signing and its effect. Time involved was from 9.00 am to 11.20 am, including travelling." 202Ms Johnson made the following general observations of Mrs Harris: "My general observation[s] of Mrs Harris were gained in my meetings with her on: 23 March 2005; 31 March 2005; 4 April 2005; 3 May 2005; 13 May 2005; 3 June 2005; 28 June 2005. Each time I met Mrs Harris she presented well, was well dressed and her home and personal possessions were always tidy. She appeared deep in thought when giving instructions with respect to testamentary dispositions. Those instructions were always unequivocal - that she did not wish to extend beneficence to her nieces and nephews and those reasons were several fold: (i) that her sister had earlier endeavoured to persuade her father to omit provision for Mrs Harris in his will; (ii) her nieces had not maintained contact and sent cards or greetings and one niece in particular whom she had not seen for 'donkeys years'; (iii) they (her nieces and nephews) collectively supported the application to the Guardianship Tribunal and deprived her of her financial independence which caused huge emotional trauma for her; (iv) the financial manager appointed related to a family member refused or neglected to release funds to her for basic necessities which she purchased with the assistance of funds loaned to her by neighbours. I was aware that Mrs Harris had a hearing problem and I recall from time to time in each of our meetings I would be requested to speak louder - there were occasions that I deliberately lowered my voice to reassure myself that Mrs Harris' was listening and comprehending what I was saying. On such occasions, she asked me to speak louder. In my dealings with elderly people I have noticed that they exhibit a level of anxiety at the loss of independence and Mrs Harris was no exception. I observed Mrs Harris to be very strong willed and was accustomed to others observing the wishes which she expressed. I have absolutely no doubt that Mrs Harris could not be persuaded to do anything inconsistent with her very purposeful views. At my final meeting with Mrs Harris she was clearly frustrated by the delay and inaction in an application being brought to the Guardianship Tribunal. The level of anxiety observed at that meeting was marked and out of character observed at earlier meetings." 203I accept that evidence. 204On 23 March 2005, Ms Johnson observed Mrs Harris to be well dressed and presented. She observed that her home was immaculately maintained. She immediately recognised Mrs Harris as a person whom she had seen at a restaurant some years earlier following a Melbourne Cup and who had exhibited what Ms Johnson described as "reasonably robust and colourful behaviour". She did not mention that occasion to Mrs Harris. After introducing Ms Johnson and Mr Jones to Mrs Harris, Mr Gray left. Ms Johnson's notes of the meeting on 23 March 2005 reveal that Mrs Harris gave her Mr Gray's phone number. Ms Johnson recalled that the number was given by Mrs Harris from memory. According to Ms Johnson, Mrs Harris said words to the effect: " 'I made a will many years ago. I have not got that will and I left my (estate) to my three sisters (all older) than me. They are no longer alive. Having regard to that will my nieces now get everything. One niece I have not seen for donkey's years. Coralie Hart wants my money. I do not know them. I met one donkeys years ago but they are now determined to get my money. I want my will to be null and void and I want to do some thinking but I do not want Coralie Hart to get my money - she is trying to get me into a nursing home. I want my will prior to today to be null and void. They are in Coffs Harbour. I have only seen Coralie Hart once and she must never get a cent. She has dragged me to the Guardianship Tribunal. I should not have been called into that Tribunal.' My notes also reveal that I then said to Mrs Harris: 'tell me about your other relatives?' and she replied: 'I have a nephew Warwick Mertel, the son of my sister, Melva Mertel. He also wants me to go into a nursing home. He has come over and brought me flowers. I own this property. I do everything myself. (I inferred that Mrs Harris was referring to cleaning of the house.) No one wanted to know me but now they want my money.' Mrs Harris then said to me: 'I had a brother, he was a pilot in the last war, he was lost in the RAAF. I also had three sisters, Lorna, Melva and Florence.'" 205Ms Johnson's file note of this part of the meeting reads: "Invited to tell us her concerns. I made a will many years ago 'have not got the will', left to 3 sisters, all older - no longer alive. Niece who says she is to get everything. Enquired as to the persons in the will, dead, will did not ... " 206I do not accept Ms Johnson's evidence that Mrs Harris said "Having regard to that will my nieces (plural) now get everything." That is not supported by her note. Ms Johnson had been told by Mr Gray that Mrs Harris had a will which was very old and which nominated her sisters as beneficiaries. He said that, as her sisters were now deceased, and as the will made a gift over to her nieces (plural), she wished to change her will. This may have affected Ms Johnson's recollection of what Mrs Harris said about this at the meeting on 23 March 2005. 207Mrs Harris told Ms Johnson of the occasion when she was on a ship in the Mediterranean when a fire broke out and they had to dock at Malta and she was able to use the time to see the monument with her brother's name on it. Mrs Harris also told Ms Johnson that she did not know the children of her sisters as she was overseas and travelled a great deal. She complained that she needed to borrow money from her neighbours to buy things that she needed because the financial manager had not given her cash to live on. She asked whether she could cancel her will. Ms Johnson said that she could. She then gave instructions that she wished to revoke her current will. Ms Johnson explained that the effect of doing that would be to create an intestacy. She and Mr Jones explained to Mrs Harris that if she cancelled her will, the effect of the intestacy provisions would be that her assets would be held on trust for her sisters and as they had predeceased her, then the children of each deceased sister would receive the share that their deceased parent would otherwise have received on intestacy. Mrs Harris appeared to comprehend and understand that advice. 208Ms Johnson asked Mrs Harris if she would consider making a gift to charity. Mrs Harris said "These Eastern Suburbs ladies are not going to eat out on my estate" and later that "I do not want to leave anything to charity as I am not satisfied that they use the money in a way that they should." 209Ms Johnson asked about Mrs Harris' assets. She said that she had the house at Point Piper, a house at Burradoo which was not occupied and units at Burradoo or Bowral which were leased out by L J Hooker. Mrs Harris said that she would be comfortable with creating an intestacy because it would send a message to her nieces and she really had no one to leave it to. She also said that she wanted to think through what she wanted to do about her will. An appointment was made for Ms Johnson to see Mrs Harris again on 31 March 2005. Mrs Harris said "I do not want to die before then." Ms Johnson said that this was in the context that Mrs Harris knew that there would be an intestacy and did not want to die before she made a new will. At that point she had not decided to whom she wished to leave her estate. 210Mrs Harris told Ms Johnson that her assets were worth about $30 million. Mrs Harris believed that her house at Point Piper was worth over $20 million and said that she had been offered $20 million for it. 211Mrs Harris told Ms Johnson that "there have been others here coming to see me to get me to draw up a will but I have denied them access". She also said "Coralie Hart wants me in a nursing home. Other people who are old and on the pension; no one puts them in a nursing home. She went behind my back." Ms Johnson's notes also refer to "nephew took deeds". 212Mr Jones recalled that Mrs Harris complained "My niece tried to put me in a nursing home and she got her son-in-law to take control of my money." 213As set out above, Ms Johnson acted on Mrs Harris' instructions that she wished to cancel her will by preparing a handwritten will that revoked prior wills. It was duly executed by Mrs Harris and witnessed by Ms Johnson and Mr Jones.

[15]

Meeting with solicitor on 30 March and informal will 214On 27 March 2005 (Easter Sunday), Mr Warwick Mertell visited Mrs Harris. He deposed "She willingly told me that her lawyer had arranged for her will to be 'null and void'. Betty said that she had not made up her mind about anything else but the lawyers were coming back on Thursday". This was correct. Mrs Harris said to Warwick Mertell "I don't want my money to go to charity or to my neighbours". According to Mr Mertell, she told him that Coralie would not get anything "as the lawyers were here last week." This was accurate. 215That conversation is not recorded in a diary Mr Mertell kept, nor in a note that Mrs Nickolls made of a conversation she had with Mr Mertell on 27 March 2005. Mrs Nickolls recorded: "Phone Betty PM - no answer. Warwick then phoned to say he and Charlotte had visited Betty for 3½ hours and she was going to bed when they left. He also told me her attitude towards us has dramatically changed in the last two weeks. She states she doesn't trust Anne Nickolls and perhaps sounds like the words have been coached into her. She has also been reluctant to let Warwick in - seems cautious but happy while he's there." Mr Mertell did not give any evidence to this effect. 216On 31 March 2005, Ms Johnson attended on Mrs Harris. She asked Mrs Harris if she remembered what they discussed on the last occasion. Mrs Harris responded by saying "Any will I had was made null and void". Ms Johnson asked Mrs Harris if she still wished to make a new will. Mrs Harris responded "If I do not make a new will my estate will be split between my relatives and that is the last thing I want." 217This response shows that Mrs Harris understood the effect of the revocation. 218Ms Johnson asked what Mrs Harris did want. She responded: "I want to make something to block anything going to the wrong people. You will make it legal. If I decide next month, or next year, that I have changed my mind, there is nothing to stop me from making a new will while I am alive and sensible. I can make a new will. Anything can change. I have different properties and bank accounts. I want my estate to go to Robert Gray." 219Because Ms Johnson had been introduced to Mrs Harris by Robert Gray, she was concerned by that instruction. She asked Mrs Harris whether she would like to see another lawyer. Mrs Harris was indignant and said "No" in a loud voice. Mrs Harris said that she did not want her assets to go to her relatives. She said words to the effect "I have one nephew who tells people he contacts me when he does not. He tells lies." She also said "Someone came to my home and took everything, all my personal papers, my will and my tax returns." She then said "I want to do a new will. I do not want my assets to go to my relatives." 220At one point Mrs Harris said that she wished to sell Bowral and Burradoo. She said that the Grays did a lot for her, that she gave them money and they did her shopping and were good to her. She said that the Grays had supported her over the years when others had rejected her, and she wished to acknowledge this. She said "The Grays would be surprised, my family are waiting for me to die. I have no interest in leaving money to charity - motivated by self-interest. I do not want you to get any particulars of a charity for me." She also said "My sisters told my father not to leave me anything in his will. It all goes back to then. He did not like what they had said and what they had tried to do to me even then." After Ms Johnson probed Mrs Harris and questioned her whether it might be better to leave her relatives something, Mrs Harris responded "I do not want to give anything to my relatives. They have not contacted me. They have not sent me Christmas cards or birthday cards." She said "It's seven months before my next birthday. I wonder whether I will get a birthday card then." 221Earlier, Mrs Harris said words to the effect: "I am determined that my relatives after what they have put me through will not get one cent. They live at Coffs Harbour and one at Darling Point and have made comments in my presence 'We have taken over from her'." 222Ms Johnson said to Mrs Harris words to the effect "What would happen if something happened to Robert before you?" She said: "I'd make a new will. I'm old. I don't know how old Robert is and I can't trust my relatives. Perhaps then I will it to Robert and Beatrice equally; that way if one dies the other will take." 223Ms Johnson raised with Mrs Harris the appointment of an executor. 224At one point Mrs Harris asked Ms Johnson words to the effect "Why are you questioning me about other potential beneficiaries?" Ms Johnson said that it was her obligation to be satisfied that Mrs Harris was not being induced or coerced into making the will. Mrs Harris then said words to the effect "I would like to sign today, otherwise the only option I have is not to die." 225Ms Johnson wrote out by hand a document which recorded as closely as possible the precise words used by Mrs Harris. She asked Mrs Harris whether, if anything should happen to her before a formal will was executed, she wanted the document to represent her intentions. Mrs Harris was emphatic that the document reflected her wishes. Ms Johnson accordingly wrote that the document represented her testamentary wishes until she executed a formal will. The operative provision was "I give my property and assets to Robert and Beatrice Gray equally." 226Mrs Harris instructed Ms Johnson not to tell the Grays that she had made a will in their favour.

[17]

Meeting with solicitors on 4 April 2005 and execution of will 230Ms Johnson and Mr Jones returned to Mrs Harris' home on 4 April 2005 in order for Mrs Harris to execute the will. The will was in very large type. Its terms have been set out at para [6] above. Ms Johnson again asked Mrs Harris what assets she had. She said words to the effect "This house, property at Bowral and Burradoo and some investments ... overseas". Ms Johnson asked Mrs Harris whether there were any other people who might expect to be beneficiaries. She said words to the effect "My relatives, but I am not giving them a cent." Ms Johnson asked if Mrs Harris felt in any way coerced to document a will in these terms. She said "Certainly not". 231Ms Johnson asked whether Mrs Harris wanted her estate to go to Robert and his wife, or just to Robert. Mrs Harris hesitated momentarily, appeared to consider the question, and then said "To both of them. I am so grateful for the advice and assistance Robert has given me." 232Mr Jones' file note of the attendance states: "Attending with Michelle Johnson at the home of Mrs Harris when she signed her new will. We had various discussions with her relating to the weather etc and she appeared quite relaxed and lucid, although when mention was made of her nieces she became quite angry, again emphasising that she did not want her nieces to have any of her money. Michelle spoke to her a number of times about what she was proposing to do in her will and inquired whether it was her wish that her estate go to Robert and his wife, or whether just to Robert, and she seemed a little uncertain as to whether she wanted both of them to share in her estate, but eventually she indicated that it was in fact her wish that both of them share. She then signed her will and Michelle and I witnessed it. Before signing, and with an aid of a magnifying glass, she went through the will and actually read it out, and I have no doubt that she was fully aware of the contents of the document she signed, and of its effect as her Will. We both assured her that [we] would not divulge the contents to anyone, particularly not to Robert. She said she knew that she could make another will at anytime if she wanted to do so." 233Discussion then turned to the question of execution of an enduring power of attorney and the appointment of someone to assist Mrs Harris in managing her financial affairs and preparing tax returns. Ms Johnson recommended that she appoint a trustee company or an accountant, along with either Robert Gray or Beatrice Gray. After discussion, Ms Johnson provided the names of a number of accountants whom she would recommend to be appointed as attorney. She made arrangements for a further appointment with Mrs Harris to move to the next stage, which was the appointment of an accountant and execution of an enduring power of attorney.

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Events prior to second hearing before Guardianship Tribunal 234Mr Swindells visited Mrs Harris for the first time on 23 May 2005. He left her with $400 in cash. This was the first money Mr Swindells had provided directly to Mrs Harris. Mr Swindells deposed that at that meeting, Mrs Harris seemed confused. When he handed her $400 in cash he told Mrs Harris to contact him should she need any further cash and he would deliver more cash to her. She responded by saying "Why have my bank accounts been closed?" He said that he had arranged to close the bank accounts after he was appointed financial manager and after he found out that Mr and Mrs Gray had been asking her to sign cheques which they prepared knowing full well that the Guardianship Tribunal had appointed him as her financial manager. He said the bank accounts had been closed to protect her money. Mrs Harris said that someone had stolen her title deeds. Mr Swindells said they had not been stolen, but had been taken into safe custody. Mrs Harris accused Coralie Hart of causing her to stay in hospital longer than she wanted to stay there, of trying to take her money and of saying she was going to get her money. Mr Swindells said that, so far as he was aware, Coralie Hart had never said anything about getting her money, and it was not Coralie who kept her in hospital. He said that Coralie Hart was acting in the best way to get Mrs Harris out of hospital as soon as possible by applying to the Guardianship Tribunal. Mr Swindells deposed that when he asked whether Mr and Mrs Gray had lent Mrs Harris money, she said they had and that they had lent $80, and later said that they had lent $600. Mr Swindells deposed that in the course of the visit, Mrs Harris said that she once had a house in France. Mr Swindells asked if she still owned it and she said "I think I have sold it, but I am not sure." 235I do not accept this last evidence. No other evidence was given by any other witness of Mrs Harris' being unsure as to whether she still owned a house in France. In assessing Mr Swindells' credit I have regard to his management of Mrs Harris' estate when he was financial manager, dealt with below at [318]-[334]. 236After Mr Swindells' visit, Mrs Harris asked Mrs Gray if she could go to the bank and asked the bank if she could have access to her account. Mrs Gray spoke to the branch manager who told her that the account was closed. Mrs Gray told this to Mrs Harris. Mrs Harris said "He is a lying bastard. I'm not letting that Swindells fellow back into my house again. I'm not putting up with this bullshit, and I'm changing the locks." Mrs Harris later told Mrs Gray that she had spoken to the bank and had found that her money was still all there. This was a relief. 237On 24 May 2005, Dr Hardy recorded that: "In contrast to my impression on last visit, Mrs Harris seems less irascible, able to listen to arguments (without necessarily agreeing with them) and appears to be managing alone without detriment. She seems adequately nourished." 238On 26 May 2005, Mrs Harris arranged for the locks to be changed. 239On 30 May 2005, Mr Swindells again visited Mrs Harris. She refused to let him through the security gate. She screamed at him. Mrs Gray asked Mr Swindells to leave, but he told her to mind her own business. Mrs Gray made a call to Mr Gray. There was a standoff. Mr Swindells said that he had come to give Mrs Harris money. Mr Gray suggested he do so. Mrs Harris was distressed. Mr Swindells left $400. Mrs Harris said "That's a miserly sum, how dare you come here handing out money to me like this. It's my money." Mr Swindells confirmed that he had cut off Mrs Harris' mail. 240On 24 June 2005, Dr Hardy recorded "Still upset at times - the main issue is lack of control of her own finances" (underlining in original notes). Dr Hardy asked some simple questions in relation to matters of orientation, general knowledge, serial sevens (he ticked both serial sevens and ability to spell the word "world" backwards). (Serial Sevens are counting backwards from 100 by seven.) Dr Hardy recorded that she appeared generally to have an overall knowledge of her personal affairs and against a heading "proverbs" that she was able to give some abstract generalisation. Doctor Hardy recorded as his impression: "She does seem to understand the nature and scope of her assets and remains familiar with general principles of their management. She is self-caring apart from her shopping and appears to be managing the household and personal care efficiently. I believe that she is competent to direct her own affairs, with specialist guidance when necessary." 241Doctor Hardy's notes for 11 July 2005 record a conversation with Mrs Hart. His notes record Mrs Hart stating that she was concerned that Mrs Harris did not have mental capacity to manage her affairs and was concerned that she may not be safe in her home. She instructed Dr Hardy not to communicate with the Grays. He told her that that was impracticable as they were her principal carers at the moment, but that if she and her fellow guardians insisted upon it, they should issue him with a formal written instruction. He agreed that a review by Dr Beveridge was appropriate. 242On 11 July 2005, Pigott Stinson Ratner Thom, the solicitors for Mrs Hart, wrote to Dr Hardy. They sought a referral to Dr Beveridge and requested that he not discuss any matters relating to Mrs Harris with any person except her guardians or other medical professionals engaged by the guardians. 243Doctor Hardy provided a referral to Dr Beveridge on 11 July 2005. In his referral, Dr Hardy stated: "She seems to have regained a considerable amount of her former capacity and is self caring in her home. She is, I understand, doing her own housework. Her shopping is done by a neighbour and longstanding acquaintance, Robert Gray and his wife. She remains very angry with her relatives who, she believes, have designs on her money and wish to put her away. She had one fall with bruising of the hip and a scalp laceration shortly after her return home but none since. Her blood pressure, which was elevated in Lulworth and on my first home visit, has settled to 145/70 on Karvea 75mg ½ tab with which she is compliant. She seemed well nourished, well dressed and tidy at my last visit on 24.6.05. The mental state had improved with less anger and reasonable mental performance: She was correctly oriented, did Serial 7 and World backwards without difficulty and was able to give some abstract meaning to proverbs. General knowledge was poor and her knowledge of her affairs seemed patchy and needed some prompting. As mentioned above, she is alienated from her relatives/Guardians and is supported by the Grays by personal contact and practical help. She is suspicious of persons attempting to gain entry to her house and in fact my last visit was only possible because Robert Gray stayed with her an[d] ushered me in. The Guardians are concerned about her welfare and feel that she should have carers. Mrs Harris is strongly opposed to having anyone staying in her house. Your opinion on this would be particularly helpful. I have been contacted in person and through their solicitors by one of the Guardians and requested not to communicate with the Grays. This is absurd as the Grays are the only people whom she trusts and have access to her. I should say that I have known the Grays for over twenty years as we once lived close by. The husband and wife are both barristers and persons of perfect probity." 244Dr Beveridge saw Mrs Harris at her home on 1 August 2005. He was accompanied by Mr Swindells. In his report to Dr Hardy of 4 August 2005, Dr Beveridge said: "Thank you for asking me to review Mrs. Betty Harris whom I saw at home on Monday 1 August 2005. Thank you for your letter of referral indicating the background history and the improvement in her general condition over the past six months. I also received written request for assessment by two of her guardians Mrs. Coralie Hart and Mrs. Anne Nickolls. I was accompanied into the house by Mrs. Hart's son-in-law Mr. Daryl Swindells who was also appointed as Mrs. Harris's financial manager. Initially it is important to state that Mrs. Harris still has significant dementia. Firstly this was manifested by the fact that she had no recall of meeting me when I reviewed her almost daily for a two-month period in hospital. Secondly Mr. Swindells has met her on a number of occasions in the past, including in my presence, and she did not recognise him. During the hour conversation she spoke disparagingly about Mr. Swindells in the third person at no stage realising that she was talking about this man in the room. She did not acknowledge his presence through much of the conversation. Thirdly when asked who was supporting her, she could not remember the names of the neighbours although did so after some half an hour's time. There was evidence in her conversation of marked paranoid ideation as well as frontal features with disinhibition. MMSE cognitive screening was not performed as it was clear that she had a marked cognitive impairment and further memory questioning would have irritated and distressed her. She had no concept of who was managing her finances, no recall of why she was admitted to hospital and displayed impaired insight into her ability or lack thereof to drive. In terms of function she certainly has done reasonably well and I am glad to hear that she has only had one fall. She denied having any falls. The house is in reasonable condition which she maintains herself without any services although there were some areas where it could have been cleaner. Overall the house was well presented. The outside I note has marked deterioration with paint peeling and requires some maintenance. She acknowledges that she is supported by the Grays who assist her with shopping but Mrs. Harris does her own cooking with no apparent fire risks. The only services she has are a gardener and a pool man. On examination she was mildly dishevelled with a wig which was oddly placed. She had been lying on her bed and was wearing a slip and a bed jacket with a pair of fairly dirty trousers. She displayed no concern regarding her appearance which was not in keeping with the glamour of her surroundings. In terms of conversation, there were conversations that were repetitions of all the ones we had in hospital. These included the discussion about her various properties, the purchase and possible sale price of $20 million for her current house. She displayed no insight into her financial management, and as she did six months ago, described that both the accountants and lawyers whose names she could not recall were managing her finances. It was in fact some nine years ago that she sacked both the accountants and lawyers I believe. Physical examination was notable for significant hypertension with BP of 180/90 and cardiac and respiratory examinations were unremarkable. She does not appear to have lost weight and is certainly more mobile and steady although forgets to use her walking stick. On noting the hypertension we discussed her medications which she keeps in her bedside drawer and there seemed to be no pattern to her medication compliance with a blister pack emptied on several different days and Dosette box also inconsistent. She could not recall what day it was and whether she had had her tablets. In terms of capacity I still firmly believe that Mrs. Harris does not retain the capacity to appoint a Power of Attorney nor to write a will. She is unable to give a clear and informed opinion regarding her financial state or the motives of those around her. She is also potentially vulnerable, although her level of suspicion may protect her. I found it quite easy to charm her to gain entry as well as to distract her when she became angry about issues. I also understand from Mrs. Harris that a lawyer has tried to visit and at some stage to persuade her to write a will and this is of very serious concern. It's not clear to me which of the stakeholders surrounding this elderly and very rich old woman has facilitated this. Luckily due to her paranoia and some sense of reality she sent this person packing. As for the relationships with the people surrounding her I think it is important to [sic] for us to remain impartial. Firstly her contact with Mrs. Hart and family when in hospital was both civil and seemed welcomed. In fact, Mrs. Harris gave us Mrs. Hart's contact details. The three family members have been appointed by the Tribunal as legal guardians and therefore are the decision-makers regarding her medical care, who should provide this, as well as her long-term accommodation. As for the Grays clearly they have been supporting Mrs. Harris and I noted that her fridge was containing some food although was not well stocked. Mr Swindells has been managing the finances and I understand brought Mrs. Harris an envelope with money in it for her use so that those assisting her are not out of pocket. Unfortunately the biggest issue is that there are two warring factions surrounding this frail, dementing rich old woman and efforts made in hospital were unable to achieve agreement on her care, with the exception of her going home. Six months down the track this seems to be in the same state and I do not understand why the Grays specifically have not accepted the legal position of her guardians as appointed by the Guardianship Tribunal. I think it would be in Mrs. Harris' interests if both parties could actually work together for her benefit, but this may never be possible. I terms of management I think the major issue would be ensuring some small level of service provision to keep her monitored, safe, with good nutrition and medication compliance. On discharge from St Vincent's Hospital, at that stage I recommended she required a nursing home level of care, being 24 hr care. On this occasion she clearly does not need anywhere near that amount of care and would benefit from at most a couple of hours daily or if not daily a few times a week. I wonder if you might liaise with the Grays to see if they could assist in providing access for carers from one of the professional services such as Kinder Caring Home Support Services with a case manager? I understand the guardians and financial manager are agreeable to pay for this. I understand Mrs. Harris has changed the locks on her front gate and door and may have been assisted by the Grays in doing so. This has been somewhat galling for the guardians but given Mrs. Harris' level of suspicion and paranoia regarding them it is probably in their best interests to stay away. They do remain the decision-makers in case of a decision being required but at this stage Mrs. Harris appears to be reasonably stable functionally and would benefit only from a minor amount of care. Overall it is clear that her quality of life in living at home is the most important thing to her." 245On 2 August 2005, Mrs Harris signed a letter typed for her by Mrs Gray addressed to Professor Watson advising him that she would be applying to the Guardianship Tribunal for a review of the orders of 3 February 2005 and seeking to have the orders removed so that she could be placed in charge of her own affairs. She advised that she would be proposing to file a medical report from him as her neurologist and would be filing a medical report from Dr Hardy. 246Professor Watson saw Mrs Harris again on 18 August 2005, two and a half weeks after Dr Beveridge's visit. Mrs Harris remembered meeting him, but not by name. She remembered that he had seen her to help assess her mental state ("whether I was gone in the top piece"). On the MMSE she again scored 26/28 and on the FAB she scored 18/18. He remained of the opinion that she was a very forceful character, used to organising her affairs her own way, and prepared to use strong language about people whom she did not like. It was his opinion that these were long-standing, pre-existing personality traits, and that while she may have had age-related cognitive inefficiency (or impairment), it was not enough to make a diagnosis of dementia. 247On 25 September 2005, Mr Mertell, on behalf of himself, Mrs Hart and Mrs Nickolls, informed Dr Hardy that Dr Hardy's services were no longer required and that Dr Seidler of Potts Point had been appointed to provide medical care to Mrs Harris. No reason was proffered. 248Doctor Seidler saw Mrs Harris for the first time on 30 September 2005. By November 2005 he had seen Mrs Harris on three occasions and wrote to the Guardianship Tribunal in relation to concerns about her care. In his report of 14 April 2011 for the purposes of these proceedings, he said: "By November 2005 I have seen Mrs Harris on three occasions and wrote to the [G]uardianship Tribunal in relation to my concerns about her care. Mrs Harris was highly suspicious and was concerned that I was part of a conspiracy with her relatives, to evict her from her house. There was certainly evidence of cognitive impairment when I saw her on three occasions between September 30, 2005 and November 2005. She had marked short-term memory loss, not recalling my visits despite the providing her with a business card each time I visited. There was certainly evidence of paranoid ideation which I could not challenge with any argument. Mrs Harris persisted in repeating herself and reiterated that she was highly suspicious of any visitors who came to the door. Mrs Harris appeared unkempt and I certainly had concerns that she was not eating appropriately. Pamela Blake, a registered nurse from Kinder Caring Agency confirmed that Mrs Harris was not looking after herself, nor eating properly. She also confirmed that Mrs Harris expressed significant paranoia to her. Gaining admittance to the house was difficult for her carers as it was for me. In summary I believe that by September 2005 Mrs Betty Harris was suffering a significant degree of impairment both cognitively and physically. It is difficult to imagine that she had capacity a few months earlier. The report from Dr Sandy Beveridge is telling and indicates that the cognitive impairment began much earlier, in 2004." 249Neither Dr Seidler nor Dr Hardy was cross-examined. Dr Hardy had had more to do with Mrs Harris than Dr Seidler. I infer that Mrs Harris would have responded badly to a change of doctor forced on her by her relatives whom she was trying to have removed as guardians. She was obviously suspicious of Dr Seidler. I do not think that significant weight should be given to his opinion as to her capacity having regard to his limited involvement and the circumstances of his retainer. Each time he saw Mrs Harris the visit was "fraught with agitation" (Ex. 18, p 16).

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Instructions to Mr Mitchell for Tribunal hearing 250Mrs Harris retained Mr Mitchell of Curwood Partners to act for her in the second proceedings before the Guardianship Tribunal. As a result of his discussions with her on 13 September 2005, he considered that she was capable of giving instructions for him to act on the application to revoke the orders in the Guardianship Tribunal. He took account of the reports of Professor Watson and Ms Roberts. (Ms Roberts also provided a report dated 25 August 2005 that repeated the observations she had made in March 2005.) Mr Mitchell observed that Mrs Harris was able to answer his questions responsively and correctly. She was aware of dates. She informed him of a number of matters which were later corroborated, including complaints that her mail had been diverted, that important documents had been removed from her house by her relatives, that she had been denied access to her bank accounts and that she had been given insufficient funds on which to live. He observed that both the house and Mrs Harris appeared well cared for. 251Significantly, Mrs Harris asked whether, after she was dead, other people could change what she had said in her will. He advised that under the Family Provision Act 1982 (NSW) some people had standing to challenge her will. He said that spouses, children and grandchildren could do so. Mrs Harris said "But these people, Mertell, Nickolls, Coralie Hart, they're not relatives of mine." Mr Mitchell said "They are related to you." Mrs Harris said "Yes, I know that, but they're not related like you said." Mr Mitchell said that someone who had lived with Mrs Harris and been dependent on her could also make a claim under the Family Provision Act. Mrs Harris said there was no one like that. 252Whereas, according to Dr Beveridge, Mrs Harris had not appreciated that Mr Swindells was the person who accompanied him at his meeting with Mrs Harris on 1 August 2005, Mrs Harris told Mr Mitchell on 13 September 2005 that "Swindells came with that doctor from the hospital to see me. That was a while ago." Mr Mitchell said "Do you mean Dr Beveridge?". Mrs Harris said "Yes, that's him." I conclude that Mrs Harris was dissembling on Dr Beveridge's visit with Mr Swindells on 1 August 2005. She knew that Mr Swindells was present and probably enjoyed disparaging him in conversation with Dr Beveridge in his presence, but in apparent unawareness of his identity. This does not betoken a lack of capacity.

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Second Guardianship Tribunal hearing 253As indicated earlier in these reasons, Mrs Harris attended the Tribunal hearing on 24 November 2005 and was examined in private by members of the Tribunal. In his report, Dr Beveridge says that Mrs Harris' presentation to the Tribunal was exactly as it had been when he had examined her and indicated that she suffered from moderately severe dementia. 254The hearing was stood over to 23 February 2006. Mrs Harris' application was refused, except that the Tribunal appointed the Public Guardian as Mrs Harris' guardian in place of Mrs Hart, Mr Mertell and Mrs Nickolls. The Tribunal's reasons were not made available until January 2007. The Tribunal found that Mrs Harris was not capable of managing her affairs and it was not in her best interests that the financial management order be revoked. In reaching that conclusion, the Tribunal said that to the extent there was a conflict between the evidence of Professor Watson and Dr Beveridge, the Tribunal preferred the evidence of Dr Beveridge, given his extensive experience in the assessment of cognitive capacity of elderly people, the fact that he had greater opportunity and time to observe and assess Mrs Harris and that his professional assessment was undertaken without a third party assisting or prompting Mrs Harris. The Tribunal noted that although Professor Watson did not accept the diagnosis of dementia, he did acknowledge that more complex financial matters would be beyond Mrs Harris' ability. The Tribunal found there was no evidence that Mrs Harris could manage more complex financial matters such as generating and managing income, looking after capital and planning for her future. It found that her cognitive difficulties would preclude the kind of evaluation and assessment required to enable her to establish and maintain a relationship with an advisor. She insisted to the Tribunal that she did not need the help of an accountant. The Tribunal said that many of Mrs Harris' answers were simplistic and concrete and that her presentation to the Tribunal was consistent with medical evidence that she could be paranoid and suspicious. 255The Tribunal also found that whilst there was no present need for a guardian to have the function of deciding on matters of accommodation, there was a need that a guardian be appointed to make decisions concerning Mrs Harris' health care and to give medical consent, and in relation to the provision of services to her. The Tribunal found that the conflict between Mr and Mrs Gray and Mrs Harris' family was such as to create practical implications for the delivery of care and support for Mrs Harris. It took into account Mrs Harris' negative views about her family members and said that Mr and Mrs Gray were adamant that they would not work with the guardians in supporting Mrs Harris. The Tribunal decided that the Public Guardian should be appointed as Mrs Harris' guardian. The appointment of Mr Swindells as her financial manager was confirmed. The Tribunal said nothing about Mr Swindells or his firm charging for the work done as financial manager. There is nothing to indicate that the Tribunal was aware that Mr Swindells' firm had by that time charged over $30,000 in fees since his appointment in February 2005, and that he proposed to charge further fees for both professional and non-professional work. It does not appear that those representing Mrs Harris before the Tribunal were aware that such fees had been charged. To the contrary, on 23 September 2005, Pigott Stinson Ratner Thom, who said that they acted on behalf of Mr Swindells as well as Mrs Hart, said that their clients received no reward. 256It was not an issue before the Tribunal whether or not Mrs Harris had testamentary capacity. A person may have testamentary capacity but not be capable of managing his or her affairs (Perpetual Trustee Company Limited v Fairlie-Cunninghame (1993) 32 NSWLR 377; d'Apice v Gutkovich (No. 2) [2010] NSWSC 1333 at [128]).

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Doctor Beveridge's assessment of Mrs Harris at the Tribunal hearing on 24 November 2005 257Doctor Beveridge was supplied with a transcript of the morning's proceedings in the Tribunal, during which Tribunal members interviewed Mrs Harris in private. Unfortunately the transcript provided to Dr Beveridge contained errors. I was told that shortly before the hearing in this court the Tribunal had found and made available the tapes of the hearing of 24 November 2005. An audio copy of the tapes was admitted. The recording provides a measure of support to the views of both Dr Beveridge and Professor Watson. Mrs Harris presents as an angry, but reasonably articulate, and in some respects canny, individual. She exhibits anger from time to time by swearing, but then apologises. She exhibits fixed ideas on various matters to which she returns and shows some perseveration. Her memory is in some respects good, but in other respects not. She tires and becomes more angry as the day progresses. Although Mrs Harris' testamentary wishes were not of direct relevance to the issues the Tribunal had to decide (relevantly whether Mrs Harris was capable of managing her affairs), Mrs Harris was questioned about her will. She dealt with those questions adroitly and not as a person easily led. 258Doctor Beveridge said that he concluded both from his observation of Mrs Harris on the day, and his review of the transcript of interview, that Mrs Harris had no concept of why she was at the Tribunal. That is not correct. Mrs Harris put in concrete terms why she was at the Tribunal, namely to get back control of her money. 259The first matter of note arose after about four minutes of hearing, after the presiding member put on the record who were the parties to the two applications. She said: "In relation to the review of your guardianship order Mrs Harris, you're clearly a party to that review as are the three guardians, Mrs Hart, Mrs Nickolls and Mr Mertell". 260Mrs Harris then asked if she could interrupt and said in an aggrieved tone "What have they got to do with me?". After the presiding member said that she would come back to that question, Mrs Harris said, again in an angry tone, "I want to know what the hell I am doing here and what have they got to do with me? Nothing." 261Doctor Beveridge says that this indicates that Mrs Harris had already lost the concept of why she was at the proceedings, and clearly indicates that she had no concept of being the applicant for the proceedings. He said it was clear evidence of "Poisoning of her mind against her relatives", who were volunteering to be her guardians to protect her and assist her to stay at home in care. 262It seems to me that what Mrs Harris was doing at this stage was seeking to get across the message that her relatives had nothing to do with her. She also considered that no one had the right to take away control of her affairs. I do not conclude from the comment "I want to know what the hell I am doing here" that Mrs Harris was unaware that she was an applicant for orders to revoke the guardianship and financial management orders. It was merely an expression of anger and disdain. This emerged shortly afterwards, when the presiding member was seeking to finish procedural matters, and Mrs Harris again interrupted, saying: "I think what they are trying to do to me is the most disgusting, disgraceful thing possible. I have nothing to do with them at all - nothing to do with them. They're not my flesh and blood - they're not really related to me. They're some sort of a niece of a niece or something who wants my money and that's why they've got me here. It'll all be explained to me, will it? ... I mean to say it never should be an issue. It never should have happened." 263Shortly after the presiding member said she would finish procedural matters, Mrs Harris again interrupted saying: "There never should have been any - why I am here is, it's ridiculous. To be told here - is just like - they worked hard to try and get me money from me." 264Doctor Beveridge says that this shows that Mrs Harris demonstrated a poor concept of her blood relations and had a paranoid ideation about the motives of her relatives. He says that it demonstrates further that she does not know why she is at the Tribunal and that it was part of a family conspiracy in effect. In my view, that seeks to draw a stronger conclusion than is warranted. Mrs Harris was speaking sarcastically when she said "They're some sort of a niece of a niece", conveying that her relatives were distant from her and not her flesh and blood. For the reasons below, I do not accept that her anger towards her relatives shows paranoia about their motives. 265The transcript provided to Dr Beveridge recorded the presiding member as asking if everyone had a copy of all of the appropriate documentation and of Mrs Harris saying "I didn't read it. The arms are sore I can't read it actually." Dr Beveridge observes that Mrs Harris' noting that she did not read the documents was important in that the documents "and concepts" were complex and she was not capable of either reading them due to vision or comprehending their content. Unfortunately, the transcript was wrong. Indeed, the transcript agreed between the solicitors (Exhibit 11) is incorrect at this point. Mrs Harris did not say "I didn't read it". Someone said "Do we have copies?". Mrs Harris said "I didn't bring my glasses so I can't read it actually." It cannot be concluded that she was incapable of comprehending the content of the documentation. 266Mrs Harris said: "All I want is my own bank account back to me. My own money, not to be left like I was - have been at odd times - without any food when I am a multimillionaire and worked hard to be what I am. And my God, I am going to - I probably shouldn't be speaking up but I'm going to make sure the whole bloody world knows what's being done to me. Sorry, I'm sorry." 267Doctor Beveridge's comment was that Mrs Harris indicated that she had been left without food and appeared to have forgotten that she had sacked the carers that the guardians had tried to arrange. He said that it indicates that she did not have the ability to organise food into the house - a simple task in the scheme of life events. 268No conclusion could be drawn that Mrs Harris had forgotten that she had sacked the carers from her statement that at odd times she had been without food (the transcript provided to Dr Beveridge had not recorded the words "at odd times"). It would not be easy to organise food into the house when Mrs Harris had been left without sufficient cash such that she had to borrow from her neighbours. However, as Dr Beveridge commented, Mrs Harris did use inappropriate language for the situation. On the other hand, she immediately recognised that and apologised. 269Mrs Harris asked how long she would be at the Tribunal. The presiding member said she was not sure, but certainly until after lunch. She said "I'll sit it out and wait 'til you return my money to me, my own bank account I want returned to me." Doctor Beveridge says that this was further evidence of her inability to comprehend the nature of the proceedings. I do not see why that is so. Getting control of her finances was the point of the application to revoke the financial management order. It is true that management of finances involves more than having control of a bank account. But having access to a bank account was Mrs Harris' principal concern. 270Mrs Harris' interview in private with members of the Tribunal commenced by a Tribunal member saying that it was not an easy thing to come in and talk about "these things". Mrs Harris responded in a somewhat feisty manner "It never should be talked about. They wanted me money." A Tribunal member asked how it started off. Mrs Harris commenced answering by saying that it started at the beginning of the year, but was interrupted by a member asking who it was she meant when she said "they wanted my money". She named Mrs Hart, Mrs Nickolls, the Swindells and Mr Mertell. She added "They're not related to me really. They are a sort of a niece or a nephew - well they're not my flesh and blood." She said "But they felt that they could like get my money from me but they're not entitled to it because legally - legally they're not entitled to it. So then they had a go by saying I'd gone in the top piece." The expression "Gone in the top piece" or "Not gone in the top piece" was one often used by Mrs Harris. 271Doctor Beveridge commented that this part of the transcript indicated that Mrs Harris announced that the persons she named were somehow not related to her, and she had a misperception and poor understanding of the processes that had been explained to her in detail regarding the appointment of a financial manager. However, Mrs Harris made it perfectly clear, as she made it clear later as well, that her nieces and nephews were not related to her in the sense that they were not her flesh and blood. She could not reasonably be understood as saying that being nephews and nieces, they were not her relatives in any sense. In saying "they're not related to me really" (my emphasis) and then the words that followed, Mrs Harris was conveying that they were not her own flesh and blood, that is, they were not her children. 272Mrs Harris' statement that she felt that the family wanted to take her money does not indicate a poor perception of the Tribunal's processes. It is one thing to have a process that provides for the appointment of a financial manager to act in the interests of the protected person. It does not necessarily follow that all persons who invoke the Tribunal's procedures will be motivated purely by concern for the protected person without any self-interest. Mrs Harris believed that the Tribunal had been misused and that the orders ought never to have been made. 273Nonetheless, it may well be that Mrs Harris did have a poor understanding of the processes concerning the making and revocation of guardianship and financial management orders. That would be consistent with the diagnoses of both Dr Beveridge and Professor Watson. 274A more pertinent point is that Mrs Harris included Mrs Nickolls and Mr Mertell amongst those who wanted her money. 275Doctor Beveridge said that statements made by Mrs Harris that her nieces or nephews wanted to put her in a nursing home demonstrated a lack of insight into her cognitive decline. I do not agree. Although she denied it, it is clear from her actions that Mrs Hart did want to put Mrs Harris in a nursing home. That is what all the guardians initially did until Mrs Harris caused so much disturbance that she had to be moved. She was able to live by herself after her discharge from Lulworth House for two years before she suffered a stroke. 276Mrs Harris said that Coralie Hart would be about 72 or 73 and that she lived up at Coffs Harbour. She said she had never had anything to do with them and never known them. A Tribunal member asked whether Mrs Harris had not favoured Coralie in a will. She said she had never left any money to Coralie Hart. She identified Coralie Hart as a child of one of her sisters, but could not say which of Lorna, Melva or Flo was Mrs Hart's mother. 277This does show a loss of memory. Mrs Hart was Lorna's child. She had made provision for Mrs Hart in an earlier will. Mrs Hart had been a member of the household in which she lived for the first few years of Mrs Hart's life. Mrs Harris' denial to the Tribunal that she had made a will in favour of Mrs Hart is to be contrasted with the information she gave to Professor Watson on 12 March 2005, that the beneficiary of her "old will" that was no longer valid was Mrs Hart. This indicates that Mrs Harris had a better memory, or was able to think more clearly, when seen by Professor Watson and Ms Roberts in March than at the Tribunal hearing in November. 278Doctor Beveridge referred to a statement by Mrs Harris where she repeated that "They didn't come from me, and my husband never sired them or anything" and that "They were nieces of sisters ... but your sister as compared to your husband or something like that cannot claim on your money". Doctor Beveridge said that this was clear evidence of Mrs Harris' not being able to conceptualise and assign a weight of claim upon her testamentary bounty. However, that statement must be read in context. Mrs Harris was reverting to a statement she had made earlier that her lawyers had told her that "They cannot overrule a legal will". In other words, she was not referring to those who might have a claim on her testamentary bounty, but the fact that her nephews and nieces could not make a claim on her estate after her death. 279A few moments later, Mrs Harris said that if she died "they" could not make a claim because they were not her children, or something like that. Doctor Beveridge said that this indicated that Mrs Harris believed that one could not make a claim on her testamentary bounty unless you were a child and the more distant relationships beyond children were not recognisable. He said this indicated a failure to appreciate who might reasonably have a claim upon her testamentary bounty. Again, that misses the point. Mrs Harris was referring to the fact that her relatives could not make a claim on her estate under the Family Provision Act (although she did not refer to that Act). She was recalling accurately the legal advice she had received from Mr Mitchell. 280Although Dr Beveridge did not comment on it, early in the interview members of the Tribunal attempted to have Mrs Harris tell them who were the beneficiaries of her will. At that time, they did not know that Mrs Harris had made a new will, although they must have suspected that she might have done so. A Tribunal member said "I think you've made a will. Is that right?" Mrs Harris said "Yes". The following then occurred: "Member: ... Are you able to tell us the beneficiaries in the will? Mrs Harris: Should I? Because I don't really tell everybody. Member: Well ... Mrs Harris: I know you're not everybody. [The transcript, including exhibit 11, is in error at this point.] Member: ... This is a legal hearing and of course this is confidential material, but yeah, tell us. Mrs Harris: Well I suppose you didn't - did they show you my will? ... Member: We've seen a copy of it. Mrs Harris: You have seen? Member: Yes Mrs Harris: Well then you know what's in it. Member: I was just wondering if you - I know it was some time ago. Mrs Harris: How long ago? Member: I think it was a few years ago. I was wondering if you could bring us up to date with - with your ... Mrs Harris: Would you be able to tell me what's in that will? Member: There's a lot of material in here that I haven't quite - I'll dig it out but ... will you be able to tell us what your feelings were at the time ... and who you might leave ...? Mrs Harris: Well I would like to know, but I'm talking about my latest will. Member: Alright. When did you make that? Mrs Harris: I thought a latest will would be a will that takes over. Member: You're right. But when was it - when was that done? Mrs Harris: Very recently. I can't tell you. Member: Was it like, are we talking days ago, months ago? Mrs Harris: No. It would be perhaps a few months. Member: A few months ago you think? Mrs Harris: We're not talking about years or anything like that. No - no - no. Member: Something more like months ago ... We haven't got that one. Member: ... can you tell us who you left your money to in that recent will. Mrs Harris: Do I have to, because I don't tell everybody. Member: No, I know. It's a very personal question isn't it? Mrs Harris: Yeah, no, I don't think I should. Member: It would help us understand about how - how you feel. Mrs Harris: I do know that going back, would it be towards last Christmas or something? Member: Yeah. Mrs Harris: I had - I had to go to hospital. ..." 281Mrs Harris then changed the topic. 282This passage shows that Mrs Harris was adroit at being able not to disclose what she did not wish to disclose. First, she turned the question back on the questioner by asking if the Tribunal had seen her will, in which case it would know what was in it. She then accurately described the time at which she had made her last will (the will of 4 April 2005), then resisted the inquiry as to whom she had left her money in the recent will, and then when it was put that knowledge of the most recent will would help the Tribunal to understand her feelings, she changed the topic. It is not possible to say whether she changed the topic deliberately or because she had lost the thread, but it effectively put an end to that line of questioning. 283The Tribunal discussed Mrs Harris' assets. Doctor Beveridge accepted that Mrs Harris had a reasonable concept of her wealth. 284Mrs Harris said that she had been in touch with the Woollahra council who had her down as the owner of her property and that: "Though these people, and nieces or something of mine, you know, ransacked my house last Christmas, although those have been stolen, they won't be able to do anything with them, with the deeds, and we will give it, make copies for you, you know, if you want to sell or something, we will make a copy because we've got Betty Harris down, you know, as being the owners and that, and they can't change themselves to owners. I hope they're right and that's the way it goes." 285When asked who was currently looking after her finances, Mrs Harris became upset. She said: "You're asking me something which nearly makes me burst into tears". And after taking a moment to recover herself said: "These creeps; they stole all my deeds and everything out of my home and then they went to the post office and that, I'm going back to last Christmas ... January, when they went to the post office and they said I must not have any mail delivered; that they had to take it from me from there; the post office you know, or whoever they know there and won't give me my own things." Later Mrs Harris repeated that her deeds had been stolen. 286Doctor Beveridge commented that Mrs Harris demonstrated that she did not comprehend the role of the financial manager or his appointment, and appeared to believe that there was a conspiracy to steal her title deeds, her mail and her money. 287There was a reasonable basis for Mrs Harris' statements. Mrs Harris' house had been ransacked (in the sense of having been searched thoroughly or vigorously). Her mail had been redirected. The ransacking of her house had nothing to do with the role of a financial manager. A financial manager had not been appointed when the documents were removed. It is not possible, and would be inappropriate, to decide whether Mrs Hart and her daughter committed theft, but there was a reasonable basis for asserting that they had. 288Mrs Harris was asked how she would manage her affairs if management of her affairs was given back to her. She said that she had looked after her own affairs very well. She did not say that she would get the help of an accountant or a lawyer. Understandably the Tribunal took the view that she would not be capable of managing her affairs as she did not have an appreciation of having incurred substantial tax liabilities or of not having lodged tax returns. 289Mrs Harris spoke unflatteringly about Mr Swindells. She told the Tribunal that she had not been able to pay her gardener. She told the Tribunal that "they" had one of the doctors sign that she wasn't at the best, but the other top doctors said that that was not true. She said she thought that that doctor (i.e. Dr Beveridge) should have his licence taken away from him and then, in an apparent attempt to explain her mental capacity, referred to her extensive travel and to having had brilliant passes at school. At this part of the interview Mrs Harris was rambling to a degree. 290Mrs Harris was then asked whether she remembered that there was a "legal order" giving Mr Swindells the capacity to run her finances. Her initial response was to say that she did not give him a legal order. After she said that Mr Swindells should be in prison, a Tribunal member explained that a Government department had made the order. When asked again whether she was aware that Mr Swindells had the legal authority, she said "He shouldn't have legal authority" as she, as the owner, should be the only person that could do it. She was asked whether she was aware that he did actually have the authority, and she said that she had seen his name on something of hers. When asked again whether she knew that he had the legal authority, Mrs Harris asked in reply "Where did he get the authority, that's what I want to know". She was told that it was established by "this Government authority". Mrs Harris was speaking loudly and apologised for shouting. She was told she could shout as much as she wanted and that it was understandable that she was upset. Mrs Harris then said "But he has nothing to do with my affairs. I paid for those properties; I bought them." 291As noted at [273] above, this is consistent with Mrs Harris' not appreciating that the Guardianship Tribunal was empowered to appoint a financial manager to take control of her affairs. 292A member said that, during the last hearing, there was a suggestion that she had some substantial debts. Mrs Harris said that was ridiculous. She denied having owed any taxation debts. She said "I never owed taxes. I always paid them". Her apparently genuine belief that she had always paid her tax, when in fact she owed about $174,000, and Girton Investments owed about $128,000, from 1998 to 2004, does indicate cognitive impairment. Whether it indicates lack of her testamentary capacity is a more difficult question. This was important evidence in relation to the Tribunal's decision as to whether she was capable of managing her affairs. 293Mrs Harris did not know of the reason for her admission to hospital. She had a small scar on her abdomen and said that she was in hospital only for a non-malignant tiny cyst. 294Mrs Harris interrupted herself in describing her stay at St. Vincent's Hospital to say "They're the biggest dirtiest thieves that God ever put breath into and ... want my money." A Tribunal member attempted to say that Mr Swindells was only managing her money for her, which provoked a further outburst. She asserted that the Tribunal had no right to make an appointment because she was not "gone in the top piece". She was told that Mr Swindells had paid back taxes and that Girton Investments had been deregistered because it had failed to pay tax. (Girton Investments had been deregistered, but not because of failure to pay tax.) Mrs Harris said that Mr Swindells had no right to pay her taxes or to touch her money and said that she had always paid everything she owed. She denied that she needed help in managing her affairs. She was asked about her accounts in England and France. The transcript suggests that she said that her bank account in London had only £60 or something like that in it. In fact, it was in credit to the tune of over £36,000, according to the application lodged by Mrs Hart and Mr Swindells to the Guardianship Tribunal on 3 February 2005, following their perusal of Mrs Harris' financial documents. Both parties accepted that this indicated that, at the time of the Tribunal hearing, Mrs Harris did not appreciate the value of that particular account. That is a reasonable assumption from the transcript. Dr Beveridge said that this comment indicated that Mrs Harris had no concept of the amount of money in her UK account, and that although in the scheme of things he accepted that she knew her wealth overall, it was notable that she had an impaired and variable knowledge on different occasions. Mrs Harris did not clearly say what amount she thought was in the bank account, except that it was "not a lot of money". Although it is not entirely clear, I think on balance that Mrs Harris was referring to the sum of £60 as being the amount in the account. By comparison, on 12 March 2005, in her discussion with Professor Watson and Ms Roberts, Mrs Harris had spontaneously said that she had about $70,000 in the bank account in London. This is a further indication that she had a better memory or was able to think more clearly when she was seen by Professor Watson and Ms Roberts in March than at this stage of the Tribunal hearing in November. 295Mrs Harris was asked about her assets in France. She said: "MRS HARRIS: Well France, yes, but they've stolen, I never ever got -- MEMBER: But do you know how much is in the bank? MRS HARRIS: No I don't really because they've stolen everything of mine. MR ALCHI [MEMBER]: Who is that? MEMBER: Now let me tell you - yes, who - who stole your money? MRS HARRIS: Well, I wish I knew. I mean, but I don't think, they haven't stolen the money evidently because the money is supposed to be there. MEMBER: Yeah. MRS HARRIS: Like with my place in France, that I have there, now I told you it was left to me and then I - but I never ever got, you know, an official thing from the bank saying the money was in the bank. MEMBER: No - yeah. MRS HARRIS: But I think the money is in the bank. MEMBER: Yeah. MRS HARRIS: Because -- MEMBER: Can I just tell you something? MRS HARRIS: I know somebody who was going over there, a neighbour of mine, you know, some weeks ago and I said to him no Robert don't go, I was going to ask him to go to the bank but I said, no, until everything's organised I don't want anyone going to the bank and asking for the bank to tell them how much I have in the account because the bank, if they had any sense, wouldn't tell anyone anyway. MR ALCHIN: That's right. MRS HARRIS: So, as I say, and I never got official thing whether they'd sold it now. ..." 296I do not think that this passage takes matters any further. This does not show that Mrs Harris was paranoid that members of her family had stolen her moneys in France. Although she initially asserted that someone had stolen something, it is not clear whether she was referring to a member of her family or to someone in France. But in any event, she appreciated that her money had not been stolen, but was supposed to be there. It is of some significance that she appreciated that a banker would not disclose details of her account to her neighbour. 297The discussion then reverted to the role of a financial manager and of the Tribunal in appointing a person as a financial manager of a person who lacked capacity. It is clear from this and from other passages that Mrs Harris appreciated that the issue before the Tribunal was whether she was capable of managing her affairs. As the hearing progressed, she became more and more furious about what she saw as the temerity of others to discuss her capacity. 298After Mrs Harris was getting tired and had expressed a wish to go home, saying she was not feeling the best, the Tribunal asked her further questions about her background. She was unable to recall her husband's job. Again, this is in contrast to her meeting with Professor Watson and Ms Roberts in March (see [169]). 299Mrs Harris repeated the episode of her having been on a cruise in the Mediterranean when there was a fire on board the ship and that they were towed into Malta where she was able to find her brother's monument. When asked about having visits from an agency to help her around the house, she said that she did her own housework and kept a beautiful home and arranged her own food deliveries and cooking. The other discussions were of no particular relevance to the question of testamentary capacity. 300Mrs Harris remained at the Tribunal for the further hearing. At one point where the presiding member was summarising the discussion concerning taxation debts, Mrs Harris intervened. She said the Government had offered her a pension that she had declined to take up. This was in apparent rebuttal of the charge that she had owed debts to the Government for unpaid taxes. 301In summary, the recording of Mrs Harris before the Tribunal on 24 November 2005 does not clearly establish one way or the other her testamentary capacity as at March and April 2005. The occasion would have been more stressful than the occasions when she was visited in her home by Professor Watson, Ms Roberts and Mr Gray, and by Ms Johnson and Mr Jones. In three specific respects, she failed to remember things at the Tribunal hearing on 24 November 2005 that she had remembered in her discussions with Professor Watson and Ms Roberts (viz. that she had formerly made a will in favour of Mrs Hart, that she had substantial funds in her London bank account and the details of her late husband's business). She did exhibit perseveration. She did not appreciate the role of the Guardianship Tribunal. She was focused on having Mr Swindells removed as her financial manager. She did not appreciate that she had owed taxes or that Girton Investments had been deregistered. She did not appreciate the need for assistance in managing her affairs. She was not able to say whether Mrs Hart was a child of her sister Lorna, Melva or Flo (this was consistent with her interviews with Professor Watson and Ms Roberts on 12 March 2005 and with Ms Johnson and Mr Jones on 23 March 2005). She was disinhibited during the hearing. This is consistent with either the diagnosis of moderately severe dementia or with her personality as described by Mrs Nickolls and others. She adroitly avoided the questioning about her most recent will, but it is not clear whether she changed the topic so as to avoid further questioning or whether she simply lost her train of thought. I have rejected many of Dr Beveridge's observations about her capacity based on the transcript. Nonetheless, as Dr Beveridge opined, her conversation was at times disjointed and perseverative and irrelevant to questions asked. She also lacked insight into her inability to manage her affairs, in particular, by not recognising her failure to meet her taxation obligations or the need for an accountant or lawyer to assist her in that regard. However, I do not accept Dr Beveridge's opinion that the antagonism that she clearly displayed at the Tribunal, in particular to Mr Swindells, showed a delusional paranoid belief concerning his motives or the motives of others.

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Documents and cash found in April 2007 302Mrs Harris was admitted to St. Vincent's Hospital in April 2007 for approximately three weeks. This was at the time she suffered her stroke. At this time, Mrs Swindells was making arrangements to carry out repairs to the Point Piper property. She discovered approximately $38,000 in cash under Mrs Harris' bed and in a dressing room table. She also found a bundle of paper sheets in very large handwriting in Mrs Harris' bedside drawer. Some of the sheets contained phone numbers for Mr and Mrs Gray and for Dr Seidler. Other sheets appear to have been prepared for the purpose of providing assistance to Mrs Harris in an inquiry concerning her mental capacity. Although Mrs Gray did not recognise the printed writing, I think it probable that the sheets were prepared by Mr Gray. One sheet contained the numbers counting back from 100 in lots of seven (i.e. 100, 93, 86, 79 etc). Another simply said "Commonwealth Bank". Other sheets referred to addresses of properties owned by Girton or by Mrs Harris. Other sheets referred to amounts in bank accounts or term deposits. Another sheet stated the name of Dr Watson and his profession ("neurologist (brain specialist)"). Other sheets were copies of acknowledgments of loans to Mrs Harris by Mr Gray with a notation of the loans having been repaid. One such sheet recorded a loan of $600 borrowed on 28 April 2005 as having been repaid on 13 September 2005 and another loan of $1,500 as having been repaid on 17 September 2005. Another sheet said simply in capital letters "SPRING" and another sheet said "NO IFS ANDS OR BUTS". 303I do not infer that these documents were brought into existence before Mrs Harris was seen by Professor Watson and Ms Roberts or Ms Johnson and Mr Jones. I think it likely that they were prepared for the purposes of the Tribunal hearing in November 2005. One document is dated 17 September. Another refers to Dr Seidler, who did not become Mrs Harris' doctor until 30 September 2005. The wills were made in autumn. The Tribunal hearing was in spring. There remains a possibility that some of the pages, or pages to similar effect, may have been provided to Mrs Harris in March or April 2005 in the hope of assisting her to perform well in the assessments to be made of her capacity by doctors or lawyers. But it is no more than a possibility. In any event, Professor Watson considered that if Mrs Harris had the capacity to memorise and recall the contents of such sheets, that would be inconsistent with significant frontal lobe dysfunction. 304Few submissions were made about the discovery of $38,000 of cash in the house in April 2007. There was no evidence as to how much cash Mr Swindells had provided to Mrs Harris up to that time. It cannot be inferred that the cash was on the premises in March, April and May 2005, so that there was no need for her to borrow money from Mr and Mrs Gray or Mrs Nickolls. If that had been the position, the fact that Mrs Harris had forgotten having that large amount of cash would be relevant to an assessment of her mental state, but the evidence does not allow that conclusion to be drawn.

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Doctor Beveridge's evidence 305I prefer the evidence of Professor Watson and Ms Roberts to the evidence of Dr Beveridge. In reaching that conclusion I have had particular regard to the following matters: (a) following discussions at St. Vincent's Hospital with Mrs Hart and her daughter, and with Mr and Mrs Gray, Dr Beveridge formed the view that Mrs Hart and her daughter were acting only in Mrs Harris' interests. He became antagonistic to Mr and Mrs Gray because they did not accept his opinion that Mrs Harris should not return to her home and were critical of the care provided at the hospital. Dr Beveridge was unaware of facts that throw a different light on the motives of Mrs Hart and Mr and Mrs Swindells; (b) Dr Beveridge's assessment of the motives of Mrs Hart and Mr and Mrs Swindells, and of Mr and Mrs Gray, was wrong. His assessment of their motives was not within his medical expertise. But that assessment influenced his medical opinion as to Mrs Harris' testamentary capacity. In particular, he attributed Mrs Harris' accusations against and suspicion towards Mrs Hart and Mr Swindells to a paranoid delusion, whereas those accusations and suspicions were not only rationally based, but correct; (c) Dr Beveridge adopted the role of advocate and was not impartial; and (d) Dr Beveridge's assessment that Mrs Harris needed to be placed in a nursing home and could not care for herself at home without full-time carers proved to be wrong. 306Doctor Beveridge's report prepared for the purposes of these proceedings was long. It ran to over 70 pages. In the course of it, Dr Beveridge commented not only on the reports of Professor Watson and Ms Roberts, but on the affidavits of other witnesses. In the course of doing so he expressed opinions on matters which were not within his expertise. He was critical of Mr and Mrs Gray and what he perceived their motives to be. This was not a matter of medical expertise. I think it coloured his opinions. He disliked the fact that Mr and Mrs Gray were not prepared to accept his opinion expressed in January 2005 that Mrs Harris had moderately severe dementia. He was also defensive of Professor Watson's criticism of Mrs Harris' treatment when she was in hospital. His report has the flavour of his perceiving the need to defend his position adopted in January 2005 when Mrs Harris was in hospital under his care. 307Doctor Beveridge's lack of impartiality emerged throughout his report. At [188]-[189], I observed that the attack there made by Dr Beveridge on Professor Watson's impartiality had no foundation, but reflected adversely on him. 308The same partiality emerged in the detail of Dr Beveridge's report. He was cross-examined on his comments about the Mini-Mental State Examination conducted on Mrs Harris' admission to St Vincent's Hospital referred to at [72]. Under the heading "Orientation", Mrs Harris correctly named the year, season, day of the week and month, but got the date wrong. She correctly named the State, suburb, city, and hospital, but got the floor of the hospital wrong. Under the heading "Attention", Mrs Harris was unable to complete the "serial sevens" (i.e. counting backwards from 100 by 7), but correctly answered the alternative question (spell "WORLD" backwards). Her score was 22 out of 27. The form contained the note that if the patient scored less than 24 out of 30, the possibility of dementia should be considered. The last three questions were not administered because of Mrs Harris' lack of vision. 309Doctor Beveridge said of this test: "It should be noted that a junior resident doctor who scored Mrs. Harris at 22/30 [sic] performed her preoperative Mini Mental State Examination (MMSE). There is significant inter-rater variability in the administration of the MMSE that makes it difficult to standardize, probably worse in inexperienced hands. The reliability can be called into question and it is not a capacity tool, it is a screening tool. It is not clear from the documentation as to when this test was administered but appears to be in the perioperative period. Notably she had impaired orientation, impaired calculation, inability to perform the serial sevens (a concentration test of subtracting 7 continually starting at 100, 93, 86, 79, 72, 65), reduced recall of words remembered, and inability to repeat a phrase. Her visual sensory impairment was taken into consideration. The score is potentially consistent with the diagnosis of dementia, especially in a woman of her education level and life experience." 310Mrs Harris scored 22/27, not 22/30. Dr Beveridge was unable to explain why it should make a difference who administered the test, except to query whether Mrs Harris initially answered the questions correctly or was prompted. This was speculation. He accepted that the only test that showed impaired calculation was the serial sevens test. Accordingly, by stating that she had impaired calculation and inability to perform the serial sevens, he was describing the same defect but in a way that made it look as if she failed in two respects. Whilst commenting on Mrs Harris' inability to complete the serial sevens, he did not note that she had successfully completed the alternative question of spelling "WORLD" backwards. He then gave the following unresponsive evidence (T321-322): "Q. And you have not bothered to refer to the fact that she was able to spell "world" backwards? A. Is that a question? Q. Yes? A. I haven't, I have acknowledged that. Q. And that was because you were trying to project this test in as bad a light as possible? A. I believe that Betty May Harris had a dementia. I don't rely solely on the screening tool called MMSE just to make that diagnosis, especially because most of her features were frontal features of executive function that this test, that it is no bearing and no ability to test for. And you know, a lot of - HIS HONOUR Q. I'm going to stop you because you are not answering the question. Mr Harris is giving you the opportunity to either accept or reject the proposition that in this paragraph of your report you were trying to project the test results in as bad a light as possible? A. I, I come from the position that having looked after her for a period of time I believe she had dementia. I think the score is abnormal and I think it is consistent to some degree within the limits of the tool." This was unresponsive. It was the repetition of a fixed idea. This is not uncommon when a witness gives evidence. It illustrates that the unresponsive repetition of a fixed idea is not necessarily indicative of cognitive impairment. 311The clearest indication of lack of impartiality is in Dr Beveridge's discussion of Mr and Mrs Gray and their motives. Dr Beveridge said: "4. Summary ... 11. The role and behaviour of the beneficiaries of the testamentary document dated 4 April 2005, Mr. Robert Gray and Mrs. Beatrice Gray, is certainly questionable throughout. In hospital in January to February 2005 they appeared hostile and disbelieving of her diagnosis in the face of clear evidence of impairment, as was accepted by the Guardianship Tribunal on 3 February 2005. In hospital by my observation they showed no cooperation with family members to achieve a consensus and an appropriate outcome of care for this frail and demented elderly woman. Their behaviour was hostile, entitled, imperious and intimidating. They did not demonstrate any of the usual signs of care but were more appearing to be seeking control, in my opinion. There is evidence that they were active in pursuing legal options for Mrs. Harris, a woman who had demonstrated no ability to arrange and plan such activity, and not just because of her visual impairment. The amount of documentation by the lawyers Bartier Perry indicates a very active process of involvement by the Grays, above and beyond those of a concerned neighbour. 12. The Grays appear to have arranged the review by Professor Watson and his colleague somehow to benefit Mrs. Harris. The proximity to the signing of a testamentary document where they are the sole beneficiaries is questionable. The proximity to her returning home and the making of such a testamentary document is of concern in that there was limited time for settling back into her routine where she might have been less vulnerable. This woman was vulnerable to suggestion and it did not take any efforts to get her riled up about anyone else having control of her destiny. She was insightless as to her frailty, her risk of falls, her care requirements, and her own financial mismanagement. 13. The Grays I believe did not consider she had any impairment. They appear to have assisted in procuring legal counsel for her to make a new testamentary document, which was then made wholly in their favour, in spite of questions about her ability to do so. Furthermore they subsequently participated in the writing of a Power of Attorney document to which they were both parties. There is also acknowledgement of a social connection with Professor Watson in obtaining his services, although Mrs. Gray purports to have had this authorized by one of the Guardians." ... 5.2 During Hospitalisation 13. Robert and Beatrice Gray may have visited Mrs. Harris in hospital at times but staff on the ward did not know them. It was not reported to me that they had visited or engaged with Mrs. Harris. They did not seek to find out about her care issues that I recall until the family conference was called. I do recall a phone call with Robert Gray, which I believe occurred the day before the family conference. I had no requests for information from them prior to this during her stay and met them only immediately before the family conference that we called, to try to make decisions about Mrs. Harris' care. They were aware she was in hospital but did not appear to concern them until asked to attend this conference." [Vol 5] In fact, Mrs Gray visited Mrs Harris on 9, 10, 12, 14, 16, 18, 21, 23, 24, 26, 29 and 31 December, and on 4, 6, 10, 11, 15, 19 and 27 January 2005. Mr and Mrs Gray did "seek to find out about her care issues". They were critical of the care provided. Dr Beveridge's report continued: "7. Proceedings of the Guardianship Tribunal of NSW on 24 November 2005 ... 2. It should be noted that Mrs. Harris supposedly initiated the review of her Guardianship orders from February 2005. It is my evidence both from observation on the day and review of the transcript of interview that was retained (some were lost allegedly) that Mrs. Harris had no concept of why she was at the Tribunal. She appears to be understanding that she was there to get her chequebook back. There is clear evidence of executive dysfunction and a manifest inability to keep a train of thought, to remain focused on the event, to retain the memory of why she was at the proceedings and modulate her behaviour and contain her anger outbursts. It is notable that even her own lawyer asks her not to get angry with the Tribunal Members. 3. It is my opinion that this indicates influence by the Grays to effect change in the Guardianship of Mrs. Harris. The question is whether the influence was to empower her on the belief, incorrectly I consider, that Mrs. Harris was able to manage herself and her decisions. It could also be considered as to whether it was to take control and influence a vulnerable person. ... 11. Affidavit of Darryl Swindells sworn 11 June 2010 ... 9. Paragraph 12 and 13 [of Mr Swindells' affidavit] deals with the signing of cheques by Mrs. Harris after the appointment of the Financial Manager in February 2005 by the Tribunal. He indicates serious concerns about the propriety of Mr. And Mrs. Gray in actively undermining a process that is legally important. It raises further questions about the Grays['] influence on Mrs. Harris to undermine the process, to actively marginalize her from the family members. While their actions could be seen by some as trying to allow Mrs. Harris some independence as Mr Swindells points out to Mr. Gray in the letter annexed as 'C', it was in contravention of the orders made. The influence may have set up antagonism for Swindells and other family members, which lead to them positioning themselves as the 'prodigal son (Grays) versus the blacksheep (Swindells and Hart)', as referred to by Peisah et al. ... 17. Paragraphs 41 to 50 [of Mr Swindells' affidavit concerning confrontations on 23 May and 30 May 2005] indicate to me that Mr. And Mrs. Gray remained very proprietorial with Mrs. Harris, unable to reason that the Financial Manager appointed by the Tribunal should be able to access his client and provide her information. The veracity of these events is unknown to me, however if they occurred as described, it would indicate to me that the Grays were perhaps protective of Mrs. Harris but also it could be questioned as to whether they were keeping her in isolation. No matter what their intentions were, it is concerning that they may have been contributing or influencing alienation from her family members. It should be remembered that at the family conference in hospital I found there was a sense of war and this exchange, if true, reports a continuation of the conflict surrounding this frail and dementing elderly woman. ... 12. Affidavit of Coralie Amanda Swindells (Mandy Swindells) sworn 11 June 2010 ... 4. ... The report of Mrs. Gray's statement that she believed Betty to be 'fine' is true. The Grays would not shift their ideas on this in spite of the opinions of the multidisciplinary team including myself. ... 16. Affidavit of Beatrice Anne Gray sworn 11 June 2010. ... 5. Throughout her statements Mrs. Gray seeks to represent that having some structure and routine infers both capacity and full decision-making. Mrs. Harris may have been able to maintain simple life tasks within her routine, it is clear she could not cope with more complicated ones such as tax payments and company management. Following hospital, once she sacked her carers, her routines did not suddenly reemerge to take on the tasks she needed to perform: instead she starved for 5 days and the Grays, supporting the removal of the carers it seems, did not act to ensure her welfare initially. I fail to see how 5 days of deprivation could be seen as part of normality, with neighbours next door, shops down the road, a telephone available to order in food." [Vol 5] 312There was no evidence that Mrs Harris was left to starve for five days after she returned from hospital. The Guardianship Tribunal had just appointed members of Mrs Harris' family to be her guardians. Mrs Gray had made Mrs Harris' key available to Mrs Nickolls so that Mrs Nickolls and Mr Mertell could take Mrs Harris home. After the contested hearing at the Tribunal, Mr and Mrs Gray stayed out of things until Mrs Nickolls told Mrs Gray that Mrs Harris wanted her to visit. It is curious that Dr Beveridge, whilst accusing Mr and Mrs Gray of befriending Mrs Harris and creating conflict with members of the family so as to isolate her and make her vulnerable to their influence, should in this paragraph criticise the Grays for leaving her alone. It is bizarre that the criticism (for which there is no support) that Mrs Harris was starved for five days should have been directed not to her guardians but to Mr and Mrs Gray. There was no evidence that the Grays supported the removal of carers. In any event, none of the criticism of the Grays' motives and conduct fell within Dr Beveridge's expertise. His report continued: "20. Final Summary ... 4. The role of the Grays is of concern in the process of writing a testamentary document. It is clear that they participated in the engagement of both a solicitor and then a doctor and psychologist. They did this because Mrs. Harris was unable to plan such assessments. On face value it could be thought that this was to achieve the outcome of the testamentary document in question. 5. The Grays appear to have participated in isolating Mrs. Harris further and did not seek to engage the family actively in the care of Mrs. Harris. They appeared suspicious of the family motives from the outset. They seem to have believed that Mrs. Harris was normal, denying the opinions of multiple professionals, including the Guardianship Tribunal. This brought about a collusion of reinforcing to Mrs. Harris that they were the only ones on her side and they were active in supporting her lack of insight. 6. It is clear that the Grays by these approaches were actively influential. By creating and supporting a process of conflict and by participating in this collusion with this demented old woman that she was normal, it brought about increasing isolation of Mrs. Harris. There was no other person she could have left her estate to with her paranoid ideation regarding family members. Encouragement of this belief by the Grays I consider lead to the outcome of her decision making in the testamentary document in question. Thus by supporting and encouraging her paranoia about the family against her, then as the only people remaining that she trusted, of course they became the supposed beneficiaries." 313It is one thing for a suitably qualified doctor to give his opinion as to whether Mrs Harris' mental condition made her vulnerable to influence. It is quite another for him to say that Mr and Mrs Gray sought to exploit Mrs Harris by collusion to an allegedly paranoid ideation regarding family members by fostering a process of isolation, thereby supporting and fostering her paranoia. No such accusation was put to Mrs Gray, doubtless because the evidence would not have warranted it. These assertions were speculative. The evidence before me would not warrant any conclusion other than that Mr and Mrs Gray were helping Mrs Harris to give effect to her wishes as expressed to them.

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Did Mrs Harris suffer from paranoid delusions? 314In concluding that Mrs Harris had a "paranoid ideation regarding family members", Dr Beveridge assumed that all of Mrs Harris' relatives were acting simply to protect her interests. Even if that were so, it would not justify a conclusion that Mrs Harris' belief to the contrary was paranoid or delusional. For the purposes of testamentary capacity, a delusion has been said to be "a fixed and incorrigible false belief which [the testatrix] could not be reasoned out of" (Bull v Fulton (1942) 66 CLR 295 at 339; Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 290). To be delusional, such a false belief must also be unreasonable, and not be correctable by an appeal to reason (Bull v Fulton at 339). As Sir James Hannen put it in his charge to the jury in Boughton v Knight (1873) LR 3 P & D 64 at 68, the question is "Can I understand how any man in possession of his senses could have believed such and such a thing?" In Wechsler v Du Maurier [2002] NSWCA 13 at [32], the Court of Appeal cited without disapproval the observations of Windeyer J at first instance (Du Maurier v Wechsler [2001] NSWSC 4 at [40]) that "delusion is a belief not capable of rational explanation or amenable to reason; or a fixed and incorrigible false belief which the victim could not be reasoned out of." A false belief is not on that account alone a belief arising from a delusion. 315What was Mrs Harris' belief about her family members that is said to be paranoid and delusional? The pleaded allegations are set out at [34] above, namely, that persons with whom she had contact were attempting improperly to obtain her assets for themselves; that family members were not assisting her and were acting out of self-interest, when in fact they were acting in her best interest by providing domestic care and assistance, by bringing Guardianship Tribunal applications and by discharging the duties and obligations of guardian and financial manager. I accept that Mrs Harris had those beliefs about Mrs Hart and Mr Swindells. They were not unreasonable beliefs to hold. Her anger was primarily directed towards them. Sometimes she made the accusations more generally against her relatives. 316Mrs Harris had had no or negligible contact with her family members. She had not seen Mr Mertell or Mrs Hart since 1992. Mrs Hart and her daughter appeared on the scene almost a month after Mrs Harris had been admitted to hospital. Within four days they had obtained access to her house and removed valuable documents, including title deeds, a copy of her 1996 will and two large bags of financial documents. They did so without authority. On the day of her arrival, Mrs Hart signed an application form for admission of Mrs Harris to a nursing home for either respite or residential care. Notwithstanding the agreement of 13 January 2005 that the appointment of attorneys (who would include Mr or Mrs Gray) for Mrs Harris would be considered, Mrs Hart and her son-in-law instituted proceedings in the Guardianship Tribunal. Mrs Hart's avowed reason for doing so was to protect her inheritance (see at [122]). Initially, Mr Swindells' position was that the other family members should have no role to play as guardians of Mrs Harris. After her appointment as guardian, Mrs Hart returned to Coffs Harbour and thereafter left the performance of the role of guardian to her cousins, except later to convey to Dr Hardy that she thought that Mrs Harris should be in a nursing home. After he was appointed financial manager, Mr Swindells did not provide any money to Mrs Harris until 23 May 2005. He relied on money being provided to her by Mrs Nickolls and Mr Mertell. Although some money was provided, it was insufficient for Mrs Harris' needs and, although a multi-millionaire, she was compelled to borrow money from her neighbours. Her mail was cut off. She was denied use of her chequebook. She had not seen her other relatives in Australia (Mrs Nickolls and Mr Mertell) prior to her hospitalisation. They associated themselves with Mrs Hart and Mr Swindells in the application to the Guardianship Tribunal. Suddenly, after she had lost control of her finances, they were on the scene visiting her for a time at regular intervals and providing food and money. 317Whether Mrs Harris' view that members of her family were "out to get her money" or were not acting in her best interests, but in furtherance of their own, was mistaken or not, it was not an irrational view. Dr Beveridge's conclusion that it showed paranoia was unfounded. It was based upon his belief from his dealings with Mrs Harris' relatives that they were genuinely seeking to look after her best interests. But Dr Beveridge's assessment of the motives of Mrs Harris' relatives was not a matter within his expertise as a geriatrician. His preparedness to attribute Mrs Harris' opinion about Mrs Hart and Mr Swindells to delusional paranoia showed a lack of objectivity that materially lessens the weight of his opinions. 318In the case of Mrs Hart and Mr Swindells, Mrs Harris' belief was not only rational, but correct. Mr Swindells did take Mrs Harris' money and allowed it to be taken by others. He took her money for his own benefit in the fees charged by his firm. As set out at [35] above, the Guardianship Tribunal expressly proceeded on the basis that Mr Swindells would only charge out-of-pocket expenses. This was in accordance with the general law regarding the appointment of financial managers to the estates of protected persons. 319The NSW Trustee and Guardian and trustee companies have a statutory right to receive remuneration for acting as financial managers of the estates of protected persons (NSW Trustee and Guardian Regulation 2008 (NSW); Corporations Act, s 601TBA). A private manager, such as Mr Swindells, is not entitled to payment of remuneration (as distinct from reimbursement for expenses) unless the Court (or in limited circumstances, the NSW Trustee and Guardian) so orders (NSW Trustee and Guardian Act 2009 (NSW), s 115; The Lady Mary Cope's Case (1677) 2 Ch Cas 239; 22 ER 926; Ex parte Femor; In the matter of Errington (1821) Jac 404; 37 ER 903; Re Westbrooke (1848) 2 Phil 631; JJK v APK (1986) Aust Torts Reports 80-042 at 67,881; G v B (Supreme Court of New South Wales, Powell J, 27 May 1992, unreported); Gell v Gell [2005] NSWSC 566; (2005) 63 NSWLR 547 at [21]). The position was the same under the Protected Estates Act 1983 (NSW), which applied when Mr Swindells was appointed. Under s 77 of the Protected Estates Act, the Court could have made an order allowing remuneration, but no such order was sought. 320The requirement that, except pursuant to statutory authority or order of the Court (or in limited cases order of the NSW Trustee and Guardian), a financial manager must act gratuitously, has the same underlying rationale as the rule that a trustee must act gratuitously, unless permitted by the trust deed or the court to charge for his or her services. The rule follows from the principle that a trustee must not profit from the trust, which is itself an aspect of the principle that trustees must not place themselves in a position of conflict, or sensible possibility of conflict, between their interest and duty (Jacobs Law of Trusts in Australia, 7th ed at [1739]). Although financial managers are not trustees (because legal title to the protected person's property remains with the protected person (or should do so)), they are fiduciaries, and the same rules apply. In the same way, an executor is not entitled to charge an estate for the work done as executor unless the will so permits, but has a statutory right to apply to the Court for commission. 321Mr Swindells was a partner of HLB Mann Judd and entitled to share in the firm's profits. He was not entitled to retain his own firm to provide accountancy services for reward, let alone to retain that firm to charge professional rates for the non-professional work of financial manager. In doing so, he placed himself in a position of conflict between his duty to Mrs Harris and his personal interest (e.g. Broughton v Broughton (1855) 5 De GM & G 160; (1855) 43 ER 831; In re Doody; Fisher v Doody [1893] 1 Ch 129 at 134-135; In re Gates; Arnold v Gates [1939] 1 Ch 913 at 918; In the Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported, BC9303622 at 30-35). Although the Protective Commissioner apparently passed Mr Swindells' accounts, that is not the same as Mr Swindells being authorised to charge personal remuneration. 322Mr Swindells saw no conflict. He said that it was in the best interests of Mrs Harris that the work be done by his firm, as the charges were less than they would otherwise have been because he charged very little for his time. 323It is no answer for a fiduciary faced with a conflict between his duty to his principal and his personal interest to say that what was done was for the benefit of his principal as well as his own benefit. In Aberdeen Railway Co v Blaikie Bros (1854) 2 Eq Rep 1281; [1843-60] All ER Rep 249 at 252-253, Lord Cranworth LC said (speaking of directors of a company): "Such an agent has duties to discharge of a fiduciary character towards his principal, and it is a rule of universal application that no one having such duties to discharge shall be allowed to enter into engagements in which he has or can have a personal interest conflicting or which possibly may conflict with the interests of those whom he is bound to protect. So strictly is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into. ... It may sometimes happen that the terms on which a trustee has dealt or attempted to deal with the estate or interests of those for whom he is a trustee have been as good as could have been obtained from any other person; they may even at the time have been better. But still so inflexible is the rule that no inquiry on that subject is permitted." 324The amounts involved were substantial. As noted at [35] above, in four and a half years, HLB Mann Judd rendered invoices totalling $206,675.80 (inclusive of GST). It also took a commission referred to at [35] above for investing Mrs Harris' funds through MLC. The amount of that commission is not shown on the statement of disbursements. 325Thus, even if the Guardianship Tribunal had not expressly stated that it was appointing Mr Swindells as financial manager on the basis that he would not charge professional fees for his work as financial manager, he would not have been entitled to charge such fees. He may or may not have known that, but he ought to have known from reading the Tribunal's reasons for its orders of 3 February 2005 that he was not entitled so to charge. I do not accept his evidence that the Tribunal misunderstood his position and that he had said he would not charge for his own time. Even if that were the position, he was not then entitled to engage the services of employees of his firm at professional rates to carry out the tasks he was required to do as financial manager. If he delegated clerical tasks to others, he was not entitled to charge Mrs Harris' estate for the cost, just as an executor who chooses to employ another person to do work he or she should do must bear the cost personally and not pass it onto the estate (In the Estate of Purton (1935) 53 WN 148; In the Estate of Instone (Supreme Court of New South Wales, Powell J, 23 August 1993, unreported BC9303622 at 25). 326Mr Swindells said that he did not charge for his own time. I do not accept that evidence. The time costing records of HLB Mann Judd show that Mr Swindells recorded his time spent on Mrs Harris' affairs. Whilst there is not an exact match between the time-costing records and the bills rendered, there is a broad equivalence between them. At least a substantial proportion of the time recorded by Mr Swindells was charged. 327HLB Mann Judd also charged for the time of its employees in managing Mrs Harris' estate. For example, on 12 May 2008, a Ms Christine Bishay recorded a charge of $132 for "writing cheques, training Shelley Ryan and looking at quotes for greenslip", and on the same day Shelley Ryan recorded $100 for "Christine showed me how to write the cheques etc for Betty Harris in case needed to be done while she is away". The time costing records included charges for tasks such as writing cheques, making telephone calls to tradesmen, looking up addresses for banks and writing letters, organising invoices and correspondence, checking invoices and like matters. 328Mr Swindells also charged Mrs Harris' estate for his time and for the costs he incurred in engaging lawyers for advice in relation to the prospects of making an early challenge to the validity of Mrs Harris' will in favour of the Grays. The existence of that will had been ascertained by Mr Swindells following the production of documents on subpoena by Bartier Perry in proceedings commenced in 2007 concerning the payment of costs (Snelgrove & Ors v Swindells [2007] NSWSC 868). 329On 15 May 2008, Mr Swindells recorded a charge in the time costing records of $1,410 for "meeting L Ellison re early will determination". Mr Ellison SC was retained by Mrs Hart and Mr Swindells to act in the Guardianship Tribunal proceedings. He appears for Mrs Hart in these proceedings. On 25 August 2008, a payment was made from the moneys held for Mrs Harris to Mr Ellison of $3,960. I infer that this was for advice in respect of challenges that might be made to Mrs Harris' will. This is confirmed by a letter from Pigott Stinson acting on behalf of Mr Swindells to Dr Beveridge dated 8 September 2008, in which they stated that: "In his capacity as Financial Manager [sic] our client wishes to take advantage of your recollections whilst they are still relatively fresh and obtain a report from you on the testamentary capacity of Mrs Harris during March/April 2005." 330I do not accept that Mr Swindells was acting as Mrs Harris' financial manager in seeking this advice. He was not acting in Mrs Harris' interests, but in Mrs Hart's interests. I do not accept his evidence that he believed that, if he could have the validity of the will determined prior to Mrs Harris' death, the person who was entitled to inherit her estate could be given a bigger role in making financial decisions (T597). Pigott Stinson accurately noted to Dr Beveridge that there might be a contest as to the validity of the various testamentary documents "upon the demise of Mrs Harris". I do not accept that Mr Swindells believed that the validity of the will could be determined before Mrs Harris' death. 331The payment of legal costs from Mrs Harris' estate whilst it was under his management in connection with potential challenges to the testamentary documents of March and April 2005 and the charging of his own time in relation to those matters was unauthorised (even if he were otherwise entitled to claim remuneration for his time). 332Counsel for Mrs Gray also attacked payments drawn from the bank account by direct debit card withdrawal. This account was kept in the name of Mr Swindells on trust for Mrs Harris. This was irregular. The Protective Commissioner had directed Mr Swindells on 14 November 2005 that all bank accounts should be in the name of the protected person with the appointed manager as sole signatory (Exhibit Q). Mr Swindells did not acquire the legal title to Mrs Harris' assets on being appointed financial manager. 333Mrs Harris suffered a stroke in April or May 2007. Thereafter she did not leave her house. She was largely bedridden, although her carers would get her out of bed and dress her. Mr Swindells gave his wife a debit card allowing her to access funds in the account with the Commonwealth Bank in his name of moneys held on trust for Mrs Harris. His daughter, Rachel, also made use of the card. In a period of seven weeks from 1 October to 17 November 2008, payments were made from the account using the debit card of $25,179.15, or over $3,500 per week. Payments were made at a wide range of establishments, including Max Brenner Chocolates Double Bay, Liquorland at Kareela ($81.34 on 20 October), Liquorland at Bondi Junction ($90 on 30 October) and at Sylvania ($215.48 on 3 November), and Jannali Inn at Jannali ($149.95 on 14 November). Mrs Harris was accustomed to drink a couple of glasses of scotch whisky. The evidence was that she drank about a bottle each week of Johnny Walker Black Label. Those liquor expenses are out of all proportion with Mrs Harris' liquor consumption. Other expenses included moneys paid at Bar Zanetti in Milsons Point, as well as "Byron Bay Cookie" in Brisbane. Between 1 October and 17 November 2008, over $5,000 was spent at David Jones in Miranda, Brookvale and Bondi Junction and $2,276.42 at Myer in Miranda, Bondi Junction and Warringah Mall. Between 15 October and 12 November 2008, $1,738 was spent at Mecca Cosmetics in Mosman. $6,414.13 was spent at various clothing establishments, including Sussan in Sylvania, Curve Designs in Mosman, Lululemon Athletica in Mosman and Brookvale and Witchery in Mosman. 334Mr Swindells said that all of these purchases were for Mrs Harris' benefit. Although he said that receipts were available for some of the items, no receipts were produced. Rachel Swindells was not called. 335The accounts were passed by the Office of the Protective Commissioner. In the accounts, all of the payments were disclosed as "groceries". None was described as clothes or alcohol or cosmetics. The sheer scale of the expenditure when measured against Mrs Harris' circumstances at this time makes it improbable that the expenditure was all for Mrs Harris. 336Mr Ellison SC for Mrs Hart submitted that this evidence was irrelevant to the question of whether Mrs Harris was paranoid or delusional because it post-dated the will and Mrs Harris had no knowledge of these matters. I do not agree. People can and do form beliefs or suspicions about the character or motives of others not by, or not only by, a process of reasoning but instinctively, or as a result of past perceptions of character. In my view, evidence that her estate was misapplied under Mr Swindells' management shows that her suspicion that family members wanted to get the benefit of her money before she was dead was not delusional. That there was a reasonable basis for Mrs Harris' suspicion was borne out by the fact that the things she suspected came to pass. 337For these reasons I reject Dr Beveridge's opinion that Mrs Harris was suffering from a paranoid ideation or delusion. That view was a significant contributing factor to his conclusion that Mrs Harris suffered moderately severe dementia that affected her frontal lobe executive thinking such that she did not have the capacity to assess the claims on her estate.

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Mrs Harris' capacity to revoke and make her will 338It was common ground that because doubt is raised as to Mrs Harris' testamentary capacity, the onus lies on those seeking to uphold the revocation of her 1996 will, and on Mrs Gray in propounding the 2005 will, to establish that Mrs Harris had the requisite capacity (Worth v Clasohm (1952) 86 CLR 439 at 453; Re Estate of Griffith (deceased); Easter v Griffith (1995) 217 ALR 284 at 289). The test for whether Mrs Harris had capacity to make a will is as stated in Banks v Goodfellow at 565, where Cockburn CJ, giving the judgment of the Court, said: "It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." 339To establish that Mrs Harris had capacity to make her will of 4 April 2005, Mrs Gray must establish that:

Mrs Harris understood the nature of the act of making a will and the effect of making a will;
she understood, at least in general terms, the nature and extent of the property of which she was disposing. This does not necessarily require that she know the value of each asset or the identity of each asset, for example, whether the asset was in the form of shares in Girton Investments as distinct from the land owned by Girton Investments of which she was the sole beneficial shareholder (Kerr v Badran [2004] NSWSC 735 at [49]; Zorbas v Sidiropoulos (No. 2) [2009] NSWCA 197 at [64]; Read v Carmody [1998] NSWCA 182 at [4]);
she had to be able to comprehend and appreciate the "claims to which [she] ought to give effect", that is, she had to be aware of those who might reasonably be thought to have a claim upon her testamentary bounty and the basis for and nature of such claims (Read v Carmody); and
she had to have the ability to evaluate and discriminate between the respective strengths of the claims of such persons (Read v Carmody). This is an aspect of point 3 above. 340In Banks v Goodfellow, Cockburn CJ went on to say (at 565): "If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence-in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand." 341There is a fundamental distinction between mere prejudice or antipathy, even unreasonable antipathy, and an antipathy arising from a disorder of the mind (Estate of Griffith at 290). In Shaw v Crichton (Supreme Court of NSW Court of Appeal, Handley, Powell and Cole JJA, 23 August 1995, unreported, BC9505227 at 2); (Mason and Handler, Succession Law and Practice at [13,037]), Powell JA said that the expression "insane delusion" was tortologous and to speak of a delusion which is not insane involves a contradiction in terms. It is unnecessary to enter into this semantic debate. As a matter of ordinary English, the word "delusion" does not necessarily connote a disorder of mind, although it can do. One can be deluded by having been deceived. But in this area of the law, as noted earlier in these reasons, the reference to a delusion is to a belief not capable of rational explanation, or to a false and unreasonable belief that the testator cannot be reasoned out of. In this sense it means a false belief that is the product of a disorder of the mind. 342Counsel for Mrs Hart relied on a passage from the judgment of Powell JA in Read v Carmody (BC9803374 at 4-5), where his Honour, after setting out the four concepts referred to at [339] above, went on to say: "The necessary corollary of this is that, if, at the relevant time the testator - or testatrix - is found to suffer from a condition - whether 'mental illness' (or psychosis) in the strict sense or any other form of 'mental disorder' (including, but not limited to, deterioration in higher intellectual function or dementia) - which detrimentally affects his - or her - consciousness or sense of orientation, or has brought about disturbances to his - or her - intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator - or testatrix - will, more probably than not, be held to lack testamentary capacity." 343As I observed in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [18], Powell JA is not to be understood as saying that any mental disorder affecting higher intellectual functions, intelligence, cognition, thought content, thought processes or judgment will result prima facie in testamentary incapacity. The mental disorder must be such as to prevent the testator from satisfying the requirements drawn from Banks v Goodfellow. The point of the decision in Banks v Goodfellow was that it was only if the mental disorder influenced the capacity to make the will by affecting the ability to understand the nature of the act, the extent of the property, the identity of persons with claims on the estate and the ability to weigh those claims and discriminate between them, that the will-maker lacks testamentary capacity. In Banks v Goodfellow, Cockburn CJ also said (at 566): "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause-namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done' (Williams on Executors, 6th ed. vol. 1. p. 37, n. x.)." 344As Kirby P said in Estate of Griffith (albeit in dissent) (at 295): "(6) 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: see Banks, above, at 560. Nor will partial unsoundness of mind, which does not operate on the relevant capacities to appreciate the extent of and dispose of the estate, necessarily deprive the testator of testamentary capacity if it is shown that the will was signed during a lucid interval: see Banks, above, at 558. 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." 345The fact that Mrs Harris suffered from a cognitive impairment cast the onus on Mrs Gray to show that Mrs Harris had the necessary capacity to make the will. But the presence of a mental disorder that detrimentally affected her cognition could not of itself provide a basis for saying that it was more probable than not that she lacked testamentary capacity. Such a conclusion could only be drawn if there were an analysis of a statistically significant, and representative, sample of will-makers who had some mental disorder, and a determination of what proportion of the sample lacked testamentary capacity. Decided cases would not provide a representative sample. As Kirby P observed in Estate of Griffith, if any partial unsoundness of mind deprived a testator of testamentary capacity, the freedom of testamentary disposition would be substantially undermined. 346Capacity to make a will is to be assessed having regard to the particular will being made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43); (Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8))). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438, the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument. 347It has been held that the same capacity is required for the revocation of a will by destruction as for the making of a will (In the Will of Richards [1911] VLR 284; Re Sabatini (dec'd) (1969) 114 SJ 35; Re Estate of Poole; Public Trustee v Elderfield (Supreme Court of New South Wales, Young J, 26 April 1996, unreported); Young v Cleary (Supreme Court of New South Wales, Simos J, 21 October 1997; unreported)). 348In such a case it appears to me that this principle is right and consistent with the requirement that the person whose capacity is in question appreciate the effect of the transaction (Gibbons v Wright at 438). Thus, in In the Will of Richards, the deceased had made a will substantially in favour of his children, leaving his wife an annuity of only £1 per week until the youngest of their children attained the age of 21. The reason for that disposition was that his wife was an alcoholic and if she had been given control of a large sum of money she would have drunk herself to death (at 290). The testator was committed to a lunatic asylum, but later released, and in a lucid interval, but shortly prior to committing suicide, destroyed his will with the knowledge that the result would be that his wife would obtain a third of his estate on intestacy. a'Beckett J held that it was not sufficient that the testator knew what the effect of the revocation would be, but he had to have the capacity to weigh the claim of his wife on his estate. By his will he had appointed his foster brother one of his executors and had left him a substantial legacy. He was resentful of the fact that his foster brother had been instrumental in having him committed to the asylum. a'Beckett J said that he destroyed the will by reason of his resentment against his foster brother, but without the capacity to weigh the danger of allowing his wife to receive a third of his estate. 349In the present case, Mr Vindin, who appeared for Mrs Nickolls and the Messrs Mertell, submitted that the revocation of the 1996 will was effective, irrespective of whether or not Mrs Harris had the capacity to identify and evaluate claims on her bounty. All that was required was that Mrs Harris have the capacity to assess whether or not Mrs Hart was worthy of remaining the object of her testamentary bounty. Mrs Harris had the capacity to make that decision and her decision to revoke her will in favour of Mrs Hart was rational. He relied upon my decision in d'Apice v Gutkovich; Estate of Abraham (No. 2) [2010] NSWSC 1333, where I held that in the case of the revocation of a particular gift in a will, it was not necessary that the testator have the capacity to appreciate the general nature and extent of her estate and be able to weigh the claims of all persons who might then be potential objects of her testamentary bounty (at [96]). I said that in such a case, in principle, it should be enough that the testator was capable of making a judgment as to whether the person deserved to be excluded from the will. This was in the context of the revocation of a specific gift in a will, which included a clause directing the disposition of the testatrix's residuary estate. I also said (at [97]): "It may be said that the testatrix should be able to decide how she would leave the disappointed beneficiary's share, and for that purpose she would need to appreciate the strengths of the claims of everybody else on the estate. But that need not be so, if, as in the present case, there is a gift of residue. In providing for a residuary gift when she was fully capable the testatrix would have considered that the residuary beneficiaries were the persons who should be entitled if for any reason any of the specific gifts failed." 350That is not the present case. In my view, as the will of 23 March 2005 revoked the prior will, rather than revoking a specific gift in a prior will leaving the estate to pass in accordance with other clauses of the prior will, for the will to be effective it is not enough to show that Mrs Harris had the capacity to assess whether Mrs Hart remained a proper object of her testamentary bounty. She also had to have the capacity to assess the claims of those on her estate in determining whether she should allow her estate to pass on intestacy if she died before making a new will. In other words, she had to meet the tests of testamentary capacity laid out in Banks v Goodfellow. 351Whilst the same test for capacity applies in relation to both the will of 23 March 2005 and the will of 4 April 2005, it does not necessarily follow that if Mrs Harris lacked capacity to make the later will in favour of Mr and Mrs Gray, she also lacked capacity to make the will of 23 March 2005 revoking the 1996 will in favour of Mrs Hart. For example, if Mrs Harris' nephews and nieces were persons who were natural objects of her testamentary bounty whom she might be expected to provide for, and if she was suffering from a delusion that Mrs Nickolls and the Messrs Mertell had stolen her property, that would affect her capacity to make the will in favour of Mr and Mrs Gray. Such a delusion, if it existed, would have a material influence on the making of a will in favour of Mr and Mrs Gray. However, it would not have influenced Mrs Harris' decision to revoke the 1996 will in favour of Mrs Hart, so that her property would pass to her nephews and nieces on intestacy unless she made a new valid will. She would have decided to benefit her nephews and nieces despite delusions as to some of them. 352Counsel for Mr and Mrs Gray submitted that Mrs Harris' nephews and nieces did not have "claims to which [she] ought to give effect" (Banks v Goodfellow at 565), that is, they were not persons who "may reasonably be thought to have a claim upon her testamentary bounty" (Read v Carmody) because she had no or very little contact or relationship with them beyond the mere fact that they were the children of her sisters. Accordingly, it was submitted that any paranoia or delusions in relation to her nephews and nieces or other incapacity to assess their claims on her testamentary bounty was irrelevant as it would not have been expected that they would be the natural objects of her testamentary bounty in any event. She had excluded Mrs Nickolls and the Messrs Mertell from her testamentary bounty when making her 1996 will. Having made that assessment in 1996, they ceased to be persons who could reasonably be thought to have claims on her. 353In Battan Singh v Amirchand [1948] AC 161; [1948] 1 All ER 152, the testator was resident in Fiji. His closest relatives were four nephews in India. He made a will very shortly before death when he was extremely weak, and at the time said that he did not know whether he had any relations elsewhere than in Fiji. The Privy Council held that he lacked testamentary capacity because, owing to his weakened condition, he had lost memory of his nephews. There, however, the testator had been on affectionate terms with his nephews during his lifetime. He had visited them during an extended visit to India three and four years before his death. He had given two of his nephews a power of attorney to enable them to deal with property he owned in India. He had provided for them in his previous wills. It was more than a mere blood relationship that made them the natural objects of his bounty. 354That was quite different from the present case. Nonetheless, and notwithstanding the comparative slightness of the association between Mrs Harris and her relatives, I think that her relatives are persons who may reasonably be thought to be natural objects of her testamentary bounty such that she would have to be capable of having them in mind and evaluating their claims. That must clearly be so in the case of Mrs Hart, who was the beneficiary under the 1996 will. It is less clear in the case of the other three nephews and nieces, particularly Phillip Mertell, who lived in the United Kingdom. It cannot be the case that before being capable of making a will, a will-maker must be able to comprehend and evaluate the claims of all those who would be disinherited by the estate not passing in accordance with the laws of intestacy. A testator might never have met, or might be unaware of the existence of such persons. Nonetheless, being her closest relatives, and being known to her, Mrs Harris' nephews and Mrs Nickolls were in my view natural objects of her testamentary bounty. Of course, the slightness of their relationship was a matter which Mrs Harris could well take into account in evaluating their claims, as she did, but that is a different question.

[26]

Capacity to make both wills 355The question of whether Mrs Harris suffered from moderately severe dementia, or from a milder form of dementia, or from some other form of cognitive impairment is relevant only in so far as it throws light on her ability to satisfy the essential conditions for will-making capacity described in Banks v Goodfellow. If her disinhibition and the instances of perseveration were attributable to moderately severe dementia, one could conclude from those symptoms that there had been changes to her frontal lobe that severely affected her capacity to carry out the kind of thinking that is needed to make a will. Hence, the disagreement between Professor Watson and Ms Roberts on the one hand, and Dr Beveridge on the other, is significant. 356I have described above (at [305] ff) my reservations concerning Dr Beveridge's evidence. Counsel for Mrs Hart submitted that Dr Beveridge, as a geriatrician, had more relevant experience and qualifications. This was the view of the Guardianship Tribunal in relation to its assessment of Mrs Harris' capacity to manage her affairs. At the time, Dr Beveridge was a reasonably junior geriatric specialist, having become a fellow and staff specialist in 2002. Professor Watson was director of the neuro-psychology unit at Royal Prince Alfred Hospital from 1993 to 2004. He has been a consultant in neurology since 1991 and has dealt with many patients with neuro-degenerative diseases, and has a particular interest in what he called the "differential diagnosis of unusual dementias, also being sent work for second opinions in these matters by colleagues". He provides medical services to a very large number of elderly people and has extensive experience with dementia patients. I do not conclude that Dr Beveridge's specialty as a geriatrician is a reason for preferring his evidence to that of Professor Watson, and having regard to my reservations and criticisms of parts of Dr Beveridge's evidence, I do not prefer his evidence. 357One of Mrs Harris' failings in 2005 was that she did not recognise that she had outstanding tax debts. She had not paid tax since 1999. Professor Watson said that her failure to lodge tax returns and to file annual returns for Girton Investments could not be attributed to her suffering from dementia, unless her dementia had reached a stage of at least moderate severity (T433). He also said that if such failures were attributable to dementia, it would also be expected that she would not be able to bring her mind to bear to pay council rates and keep up the registration of her car and attend to the payment of bills, all of which she continued to do up to 2005. Dementia is a progressive disease. If she had moderately severe dementia in 1999, then she would not be as competent as she was, on any view, in 2005. Hence, her failure to lodge tax returns or annual returns for Girton Investments from 1999 could not be attributed to a dementing condition. I accept that evidence. 358Mr Mitchell raised with Mrs Harris the fact that the Tribunal had stated in its February decision that she had not filed any income tax returns since 1999. She told him that she only had her properties and the income on them was less than the expenses. She said that as far as she knew, land tax had always been paid. The precise position concerning Mrs Harris' financial affairs was not made clear. The returns lodged by Mr Swindells were not tendered. Professor Watson said that, presuming that it was not true that Mrs Harris' expenses exceeded her income, nonetheless her belief and inaction did not mean that she was demented. 359Doctor Beveridge's diagnosis of moderately severe dementia was inconsistent with the FAB scores obtained by Professor Watson on 18 March 2005 and on 18 August 2005. The FAB is a screening test to assess frontal lobe (executive) function, being more sensitive to frontal lobe dysfunction than the Folstein MMSE. Dr Beveridge was critical of the administration of the test, but I do not accept those criticisms. Mrs Harris also performed significantly better on the MMSEs which she was administered, both in hospital and by Professor Watson and Ms Roberts, than would be expected of a patient with moderately severe dementia. The one qualification to this is the MMSE administered by Dr Beveridge, which was out of line with all of the other tests. 360As adverted to earlier in these reasons, it is possible that Mrs Harris' symptoms when examined by Dr Beveridge in January 2005 were caused by vitamin B12 deficiency. That there was such a deficiency is established. It is not known whether it was corrected by diet after her discharge. It is clear that Mrs Harris improved markedly in her general health after she returned home. 361By the time Mrs Harris was seen by Dr Beveridge she lacked motivation. She refused to get out of bed and to mobilise. As noted by Dr Beveridge in his report of 21 January 2005, Mrs Harris then persistently believed that she was residing in Bowral. This shows a marked deterioration from when she was admitted to hospital, when the MMSE that was then conducted showed that the only faulty aspect of her orientation was not knowing what floor of the hospital she was on. The social worker's notes of 9 and 17 December 2004 show that Mrs Harris competently appointed Mrs Gray as her contact person, and identified that her closest relatives were her nephews and nieces. On 23 December 2004, she was able to tell the social worker that she had left money to her niece at Coffs Harbour and give her the name of her solicitor, stating that she believed that her solicitor had her will. The social worker's notes also record a telephone number for the solicitor, but it is not possible to say whether she obtained that number from Mrs Harris or whether she obtained it herself, having been given the solicitor's name. The social worker's notes for 17 December 2004 record that Mrs Harris told her that her neighbour was attending to her mail, that she was not really concerned about her bills and that she said that her other property had a manager/agent to attend to it. She told the social worker then that she had a niece in the north and nephews out of Sydney. She said that she did not want them contacted and was thinking about how to go about things. 362Professor Watson expressed the opinion that if Mrs Harris had at least moderate severity Alzheimer's type dementia through the period of December and January, she could not have been conducting her affairs in the way she had apparently been doing before her hospital admission and could not have had the type of conversations she had with the social workers, including Ms Kennon. I accept that evidence. 363Professor Watson's opinion was challenged on the ground that Mr Gray was present during his and Ms Roberts' interviews with Mrs Harris, and that he provided initial prompting for a number of answers. This was one of the reasons for the Guardianship Tribunal preferring Dr Beveridge's evidence to Professor Watson's. However, Professor Watson took the extent of Mr Gray's prompting into account in forming his view as to her testamentary capacity. 364Ms Roberts said that Mrs Harris' MMSE of 26 out of 28 and frontal assessment battery (17/18), her intact basic language functioning and her ability to recall recent events was not consistent with the diagnosis of either Alzheimer's dementia, nor frontotemporal dementia. She said that, although such simple cognitive testing did not rule out the possibility of some age-related cognitive decline, Mrs Harris' results suggested that if that existed, it was likely to be mild at best. Ms Roberts also observed that a deterioration in Mrs Harris' performance on the MMSE between the test administered on 29 December 2004, where she scored 25 out of 28, and the results of the test administered by Dr Beveridge on 4 January 2005, showed a deterioration over the course of a week which would be highly unusual, unless factors other than an underlying dementia were affecting her performance. I accept this evidence. 365For these reasons I do not accept Dr Beveridge's diagnosis that Mrs Harris suffered from moderately severe dementia. Nonetheless, she did suffer from a degree of cognitive impairment, which may have been dementia of a milder form. 366It is clear that Mrs Harris knew the effect both of the first will, which revoked prior wills, and of the later will. Counsel for Mrs Hart submitted that it should be concluded that she did not have the understanding of the effect of the first will because the result of it was that her property, if she died, would pass on an intestacy to nephews and nieces whom she said she did not want to inherit her estate. But Mrs Harris was aware of that. That is why she told Ms Johnson that she did not want to die before Ms Johnson returned on 31 March 2005 for the purpose of making a new will, after more thought about the question as to who should inherit her estate. 367I conclude that Mrs Harris understood the general nature and extent of her estate. She knew she owned her house at Point Piper. She said she also owned the properties at Bowral and Burradoo. I do not think that the fact that she described those as her properties, whereas some land was owned by Girton Investments, is of any significance. She was the sole beneficial shareholder of Girton Investments. She did not own other shares and was aware of that. Counsel for Mrs Hart submitted that Mrs Harris' statement to the Guardianship Tribunal on 24 November 2005 that she had £60 in her London bank account showed that she did not appreciate, even in a general way, the extent of her assets. As noted earlier in these reasons, that statement is to be contrasted with what she told Professor Watson and Ms Roberts in March, where she initially said that she had $70,000 in the bank account. In fact, at the then exchange rates, there was approximately $85,000 at that time. Mrs Harris knew that the money was in sterling and the difference between $70,000 and $85,000 is not material. 368In executing the will of 23 March 2005, Mrs Harris was able to identify and weigh the claims of the natural objects of her testamentary bounty. She had good reason to revoke the will leaving her estate to Mrs Hart for the reasons given. She appreciated that Mrs Hart had, as she put it, ransacked her house. She was right in thinking that Mrs Hart wanted her placed in a nursing home and she was entitled to be resentful of both of these things. She was not deluded. I accept that she had the belief that Mrs Hart had not acted in her interests. That was a view she could reasonably form. In fact, I think it is probably correct. Mrs Hart was acting to protect her inheritance. 369Mrs Harris understood that the effect of revoking her will would be that if she died without making a new will, her estate would pass to her nephews and nieces. She knew who they were. She had named Mrs Hart and Mrs Nickolls. She had referred to the Mertells. She knew she had two nephews, even though Phillip Mertell lived in England and she had not seen or spoken to him for a decade. Although in her discussion with Professor Watson and Ms Roberts on 12 March 2005 and with Ms Johnson on 23 March 2005 Mrs Harris referred only to Warwick Mertell, in her discussions with the social worker at St. Vincent's Hospital, she referred to her nephews as well as her nieces. It was natural that she would mention Warwick Mertell as he had been around. I do not conclude from her then only mentioning Warwick Mertell by name that she was incapable of bringing Phillip Mertell to mind and evaluating his claim. The question is not whether she did bring the claims of each nephew and niece to mind in making her decision about her will, but whether she had the capacity to do so (King v Hudson [2009] NSWSC 1013 at [51]). 370If Mrs Harris were deluded in thinking that her family were waiting for her to die, or that all of her nieces and nephews were after her money or had stolen her property (and I do not accept that she did have delusions, that is, irrational beliefs out of which she could not be persuaded), such delusions could not have influenced her decision to revoke the 1996 will so as to leave her property to her nephews and nieces if she did not make a new will before her death. She did not want her property to go to her nephews and nieces, but this did not affect the validity of the will of 23 March 2005, because she understood that she was making a will that she intended to be a stop-gap measure. 371The question then is whether Mrs Harris was able to evaluate and discriminate between the objects of her testamentary bounty when she made her will of 4 April 2005. For the reasons given, Mrs Harris was well able to evaluate the claim of Mrs Hart on her testamentary bounty. She was also able to evaluate the claims of Mr and Mrs Gray. She was grateful for their assistance and attention, but nonetheless suspicious of their motives. She had expressed that suspicion to Mrs Nickolls. Such suspicions made her difficult to influence, and there is no evidence that any influence was sought to be exercised by the Grays. I conclude that she was able to weigh their claims as neighbours who had become friends and helped her. 372Mrs Harris was also able to evaluate the claims on her bounty of Mrs Nickolls and the Messrs Mertell. She had distanced herself from them, or they from her, prior to her admission to hospital. She had had little or no contact with them for years prior to her admission to St. Vincent's Hospital in 2004, save for Mr Warwick Mertell having telephoned her every few months. Notwithstanding that contact, her relationship with Mr Warwick Mertell was distant in that he had not seen her since 1992, even though they both lived in Sydney. There was no exchange of cards or other contact at Christmas or on birthdays. When Mrs Harris was admitted to St Vincent's Hospital, she initially and consistently said she did not want her relatives to be contacted. She had not made provision for Mrs Nickolls or the Messrs Mertell in her previous will. Sometimes she had difficulty in naming her nieces and nephews and identifying which of her sisters was their mother. This did not affect her ability to know of their relationship to her, that is to say, that they were nieces and nephews, or to assess the nature of that relationship, that is, that they had had nothing or little to do with her. 373In her discussions with Ms Johnson, Mrs Harris was able to describe her contact with Warwick Mertell and Mrs Nickolls after her return from hospital. She told Ms Johnson that Warwick Mertell, the son of her sister Melva, had come over and brought her flowers. She said in apparent reference to Mrs Nickolls that "I think its about 50-70 years since I have seen one of my nieces, it could be more. And what right does she have to come 'parading into my home'?" Although 50-70 years was an exaggeration, relations between them had been distant. Mrs Nickolls deposed that her most frequent contact with Mrs Harris was when Mrs Harris was in her 50s and was focused on events of the Sydney racing season. Mrs Nickolls introduced her husband to Mrs Harris in the early 1980s. Other contact was intermittent. Mrs Nickolls deposed: "She didn't just 'sack' professionals such as solicitors or accountants if she took a set against them (which she did in the 1990s): she did the same with friends and family. She fell out with my mother many years before my mother's death and had no contact for years, even noting this 'animosity' in her 1996 will." 374In her dealings with Mrs Nickolls after her return to her house, Mrs Harris appeared to think well of Mrs Nickolls and was grateful for her help, in particular for her help in getting her home from hospital. Nonetheless, Mrs Harris complained to Mr Mitchell in September 2005 that her relatives could "just waltz in here now as though they own my house" and that after she came home "all these people were coming into my house". This attitude was inconsistent with the attitude Mrs Harris showed to Mrs Nickolls herself. But that inconsistency does not betoken a loss of capacity. Mrs Nickolls deposed that it was Mrs Harris' personality that she could speak harshly about anyone in their absence and then be charming to them in their presence. 375Mrs Harris made a number of statements about the Messrs Mertell and Mrs Nickolls that, if correctly related, were wrong. As noted at [75], Mrs Gray deposed to Mrs Harris telling her at the time of her admission to hospital that when her husband died, her nephews hid in the bushes in Wyuna Road and that she went down to the street and abused them and they ran off. In 1991, when this incident was said to have taken place, Mr Warwick Mertell was about 39 years old and his brother Phillip was living overseas. Neither hid in the bushes. 376Ms Johnson deposed that Mrs Harris told her that Mr Warwick Mertell wanted her to go into a nursing home. He denied that that was his wish. He deposed that he and Mrs Nickolls always firmly supported Mrs Harris' wish to return to her own home and they were the ones who facilitated that (in contrast to Mrs Hart who wanted Mrs Harris to go into a nursing home). I accept Mr Mertell's evidence on this. 377Mr Mitchell deposed that Mrs Harris told him that a few weeks after she returned home she came into her living room and found Anne Nickolls sitting there with her feet on the seat. Mrs Nickolls denies that and I accept her denial. Mrs Nickolls deposed that Mrs Harris always referred to her as Anne, and not as Anne Nickolls. At the time of the event in question, Mrs Harris had a carer whose first name was Anna and whom she dismissed because she put her feet on her chair. It is possible that Mr Mitchell misunderstood Mrs Harris and thought that she was referring to Anne Nickolls when she was referring to her carer, Anna. But it is also possible that Mrs Harris, by September, had formed the view that Mrs Nickolls was the person who had put her feet on the chair. Having seen Mrs Nickolls in the witness box, I think it unlikely that Mrs Harris would reach that conclusion about Mrs Nickolls. Nonetheless, it is possible that she did have that wrong belief. 378In conversation with Mr Mitchell on 10 October 2005, Mrs Harris said "they all want their bit of money, Swindells, Hart and these guardians." On 14 October 2005, she said to Mr Mitchell "Coralie Hart, Swindells, Nickolls all came in and treated my house like their own. Came into my house. They stole every important piece of paper." 379At the Guardianship Tribunal hearing on 24 November 2005, Mrs Harris said "they wanted me money". When asked by a member of the Tribunal who it was she meant, she named Mrs Hart, Mrs Nickolls, Mr Swindells and Mr Mertell. In context, Mrs Harris was not talking about whether the persons she named hoped to receive an inheritance after her death, but wanted to get the control and benefit of her money during her life. That was not true in the case of Mr Mertell and Mrs Nickolls. Counsel for Mrs Nickolls and the Messrs Mertell submitted that the driving factor that led to Mrs Harris making her will in favour of Mr and Mrs Gray was her anger arising from the conduct of Mrs Hart and Mr Swindells, which she then extended to her whole family without any basis for doing so in the case of the Messrs Mertell or Mrs Nickolls. In relation to them, so it was submitted, Mrs Harris was suffering from a paranoid ideation. 380Mrs Harris did not express these views about Mr Mertell and Mrs Nickolls in her discussions with Ms Johnson and Mr Jones in March and April 2005. She said there were a "couple of nieces" who wanted her money, but that could have been a reference to Mrs Hart and her daughter, Amanda Swindells (i.e. a niece and a great-niece). She complained to Ms Johnson that Mrs Hart was trying to get her into a nursing home and had dragged her to the Guardianship Tribunal (2/276). She did not then make the same accusation against Mr Mertell. 381It is a reasonable inference that between April 2005 and September to November 2005, Mrs Harris would have brooded over the wrongs she perceived had been done to her. This could explain why it was not until the weeks leading up to the Tribunal hearing on 24 November and at the hearing itself that she accused Mr Mertell of wanting to put her into a nursing home and made statements associating him and Mrs Nickolls with Mrs Hart and Mr Swindells in wanting to take her money and having stolen her documents. I do not conclude from the statements she made in October and November 2005 that she was motivated in making her will of 4 April 2005 by a belief that they had stolen her property, or were after her money. 382Even if she were of those beliefs at the time she made her will and was influenced by them, I do not conclude that those beliefs were the result of a disorder of her mind. A will is not invalid merely because the will-maker misjudges the conduct or the merits of an object of his or her testamentary bounty. Even if Mrs Harris held those beliefs when she made her will, there is nothing to show that she was deluded in the sense that her beliefs were irrational, so that she could not be argued out of them, or, to put it another way, that no person in his or her senses could have held that belief. No one asked Mrs Harris why she thought that Mr Mertell or Mrs Nickolls were after her money or had stolen her property. The Tribunal members attempted unsuccessfully to persuade Mrs Harris that she was deluded in her suspicions of Mr Swindells by arguing that he, as her financial manager, was required to act in her interests. She was not persuaded by that and reasonably so. The Tribunal members assumed that because Mr Swindells was required to act in her interests, he was doing so. She did not accept that. Her non-acceptance did not connote any disorder of mind. No such explanation was attempted that was addressed specifically to the position of Mrs Nickolls and Mr Mertell. 383Similarly, Ms Johnson did not challenge Mrs Harris as to why she believed that Mr Mertell had wanted to put her in a nursing home. It is not shown that that belief was incorrigible. As earlier indicated, Mrs Harris might reasonably have thought from the fact that Mr Mertell joined in the application in February 2005 to the Guardianship Tribunal, following which she was moved to Lulworth House, that he was of the same opinion as Mrs Hart in wanting to place her in a nursing home. Her belief in that respect was not irrational. 384If Mrs Harris said that Mrs Nickolls had placed her feet on the chair, I do not think it likely that that would have influenced her will-making decision. In any event, it does not appear that that was a fixed and incorrigible false belief which she could not be reasoned out of. The same is true of Mrs Harris' statement to Mrs Gray when she was admitted to hospital concerning her nephews hiding in the bushes and being chased away. 385In concluding that none of these beliefs is likely to have influenced Mrs Harris' will-making capacity, I have concluded that two matters were of fundamental importance to her. The driver for her decision to change her will was her anger towards Mrs Hart and Mr Swindells. She knew that Mrs Hart was the beneficiary of her will. Having decided to revoke her gift to Mrs Hart, the principal factor that governed her decision to leave her property to Mr and Mrs Gray and not to her nephews and nieces, or her nephews and other niece, was the absence of any substantial connection between her and her relatives prior to her admission to hospital.

Gray v Hart & Ors

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Judgment (28 paragraphs)

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Legislation Cited (6)

Cases Cited (20)

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