Dr Rosenfeld's conclusion was as follows:
"It is my opinion that the determination of an individual's testamentary ability is a practical professional judgement based on experience and face to face observation by experienced professionals. The science of determining such issues retrospectively is limited and imprecise compared to contemporaneous observation.
It is my opinion further that there are compelling historical and medical issues that confound retrospective judgement in determining Mrs Bilfeld's testamentary capacity in July 1987. This is further compounded by misinterpretation and lack of recognition of key aspects of her history.
My professional experience and my knowledge of this case leads me to the view that there have been significant errors in retrospectively determining the nature and severity of her cognitive impairments. The fact that she was treated for an acute medical illness during her hospital admission, the lack of recognition of this fact, and the failure to acknowledge the clear evidence that she was suffering from a delirium at that time, clouds, and renders incomplete and imprecise, the interpretations and conclusions that have been drawn.
The variability in Mrs Bilfeld's clinical course points to the likelihood that delirium and resolving delirium played a significant part in her cognitive impairments. The variability in her behaviour and cognitive impairments, documented and commented on widely in the testimony and the reports, further attests to the likelihood that, on the balance of probability, the direct observations and judgements of the legal and medical professionals at the time were correct and that her testamentary capacity at the time was adequate."
57 Despite Professor Broe's impressiveness as a witness, I am unable fully to accept his conclusions concerning the testator's lack of testamentary capacity. His cross examination demonstrated difficulties with the basis on which he concluded that she was not aware, at least generally, of her estate. I find it hard to conclude positively on all of the evidence that her cognitive faculties had been so permanently destroyed by 22 July 1987 that she could not be cognisant of the requisite matters, particularly in light of the conflicting evidence of Dr Rosenfeld. Similarly I do not accept the positive conclusions he expresses in the last sentences of paragraphs (ii) and (iii) and the first sentence of paragraph (iv) of the quotation from his report in [56]. This does not mean that I find no assistance in the evidence of Professor Broe, virtually all of which I unqualifiedly accept, except for the matters of positive conclusion which I have just referred to. Equally, it does not mean that I accept the countervailing conclusion of Dr Rosenfeld that the testator had testamentary capacity on the day. Nor do I regard any of the other medical opinions as determinative of the matter. The situation is that I cannot come to any final conclusion simply by reference to the medical evidence. In any event, while the evidence of experts on matters in issue, even central questions, is now admissible under s 80 of the Evidence Act 1995, acceptance of such opinions should in no way replace judicial assessment of all the evidence in the decision of such questions as testamentary capacity and certainly will not do so in this case. However, I shall bear that evidence in mind in assessing the evidence of the testator's condition and what occurred at the time of the making of the 1987 will, to which I now turn.
58 I have already indicated that, bearing in mind the passage of time, the most accurate evidence of what occurred at the time is what is recorded in Mr Berger's notes. I have no doubt that Mr Berger was attempting to record accurately what he perceived at the time he made the notes. The difficulty is that the notes do not purport to be and are not anything like a full record, but only a sketchy summary, of what occurred during the quite long attendances which they record. It was put to Mr Berger that he recorded what was of importance to him bearing in mind that he knew that he was taking instructions for a will. However, the notes are sufficiently sketchy for me not to feel any confidence that even all matters of importance were in fact recorded. Indeed, this is confirmed by the lack of any recorded instruction for the inclusion of the gift to Dr Muller: see [32].
59 The notes of 24 June 1987 set out in full in [31] above show (as does other evidence) that the testator lapsed into Polish (not Czech, as wrongly recorded in some places in the notes). This was uncharacteristic conduct. Mr Berger did not speak Polish, nor did Victor Grynberg, and the testator normally spoke to Mrs Grynberg in English. Unusually in 1987, at this stage the testator had some good to say of Dr Muller, though she wavered in the amount he should be left. But her remarks concerning Mr Landerer appear paranoid. It is inherently unlikely he would have made to her the extreme statements she alleged. I accept his denials that he made any such statements. Significantly, the only additional provision for Professor Popovtzer mooted at this stage was a transfer to him of Mr Stricker's gift of $50,000.
60 The notes of 20 July 1987 are set out in full in [32] above. With a full awareness of the limitations I have referred to, what appears to me to be shown by those notes is as follows. The interview lasted from about 3.05 to 4.30 that afternoon. The testator had with her a copy of her most recent will and the unexecuted codicil. Mr Berger indicated his unhappiness that the interview take place in the presence of the Popovtzers but the testator said that they should stay. The testator said she wanted Professor Popovtzer to have three times what Mr Landerer had. Mr Berger added in the notes "ie, $450,000". It is impossible to tell whether the testator stipulated this figure or Mr Berger added it as recording his knowledge of the existing gift to MrLanderer. The testator then said that Professor Popovtzer should ask any questions and he asked whom most of her money went to. Mr Berger replied that he did not know the value of the estate, but $950,000 went to various persons and the balance to Moriah College. Professor Popovtzer said the estate equalled $3 to $4 million. This was a considerable underestimate. The notes then record, "She asks how know value". Her enquiry may have been as to how Professor Popovtzer knew this, but it seems more likely from what follows that it was a more general inquiry as to how the value might be known. The question was followed by a telephone call to Brian Harris of the Protective Office, who suggested a value of $6 to $7 million. He said that the testator wanted to give the Popovtzers $500,000 to buy property in Israel. The note of this telephone conversation is followed by a heading "MULLER". It is not clear whether what is recorded here was a telephone call to Dr Muller or a report (by whom it is not clear) of information obtained from Dr Muller at another time. The relevant information recorded as from Dr Muller was that Dr Stanley did not want to give a certificate (presumably as to the testator's capacity) but said to "go to Saint Vincent's", presumably a suggestion that Professor Buhrich be approached for the purpose. The next thing recorded is Professor Popovtzer saying that if the estate is worth $6 million then Moriah College was getting five times the total of everyone else and 12 times what Professor Popovtzer was getting (on the assumption that his gift was $450,000, the level mentioned earlier in the interview; incidentally, this rather suggests that the figure of $450,000 had actually been enunciated). The Popovtzers "press her that Moriah gets all". Significantly, she replied, "I didn't know that." The significance is that only a short time before, earlier in this interview, it had been stated by Mr Berger in answer to Professor Popovtzer's first question that the balance of the estate over $950,000 went to Moriah, a fact she had apparently been unable to retain in her mind in the interim. The testator then spoke again of "John v Dr". This subject matter I take to be the relativity of the gifts to Professor Popovtzer and Mr Landerer. The Popovtzers again "press her re Moriah", presumably suggesting that it was receiving too much. She persisted with the subject matter of "John v Dr", saying "$150,000 v $350,000 is what she wanted to do and says John worth half Dr." This again is significant because it differs only a short time later from the relativity which she desired at the start of the interview, namely, 1:3. There is nothing in what is recorded that shows that she had changed her mind about the relativity during the short time that had elapsed, rather than simply forgetting what she had said and thought that short time ago. Mr Berger repeated that on the present arrangements Moriah got most of the estate and asked, "Is that what you want?" She replied in the affirmative, said that she "wanted sign for my husband", and asked whether it would cost $6 million to build. There was then discussion about whether there was to be an immediate gift to Moriah or a bequest, and she indicated her intention was a bequest. There follows an equivocal note, "Now says:- Bequest = $600,000 - all but Pop (leave Steve OUT)." This appears to record her saying (correctly) that the specific bequests other than to Professor Popovtzer total $600,000 and saying that Dr Muller should be excluded. It is not clear whether she voiced his exclusion emphatically or whether Mr Berger's capitalisation was to highlight the instruction for his own purposes. It is then rather casually recorded, bearing in mind the radical nature of the change, that she enunciated that the gifts should be $1 million to Moriah College and the balance to Professor Popovtzer. At this stage Mr Berger explained there might be a doubt about testamentary capacity and reported "what Muller said". This last suggests that the earlier reference to Muller was to a telephone conversation held during this interview and not reported to those in the room until this time. Professor Popovtzer said he would find a Sydney doctor. Mr Berger said that he would prefer two. The notes continue, "She asks me he (sic) to try to get Dr who says she is well and she gets money back. Asks he stay till found one." This shows a lack of understanding of the whole purpose of getting the doctor, which had nothing to do with releasing her from the control of the Protective Office, as she obviously desired, but which had not been a matter of discussion, so far as the notes go. The notes end by recording her saying, obviously to Professor Popovtzer and recorded as an exact quote, "See what I've done for you."
61 The next set of notes relates to the shorter and earlier interview on 22 July 1987. By this time there seems no doubt that the testator had the re engrossed will and the new codicil (as to which, see [32]). The notes commence with the testator indicating "difficulty with 'how many zeros' for Johnny". The context of what was said and how the interview commenced is quite unclear, as is whether or not she had read the documents. Mr Berger seems to have sought to convey to her the magnitude of $150,000. There is then a very confused note concerning Dr Muller. The testator apparently announced a desire to give him $1,000. Mr Berger explained that she had said $50,000. She then said $100,000, and asked a question as to whether three zeros was enough, the sense of which in the context is far from clear. She then said she wanted to give him something but not much. Mr Berger explained that the doctor was coming and suggested in effect putting Steve in now and changing the will later if she changed her mind. There was then discussion about Michael Conn. The notes proceed, "she then asked about the children and sign - I explain $1,000,000 for children." Whilst this note does not give the context very clearly, it does suggest that she was asking what provision was made by the will for Moriah College, apparently not bearing in mind or remembering that she had less than 48 hours previously given instructions for a legacy of $1 million to the defendant. She then said, "For Stephen $50,000". The notes then record, "She asked that no amend bequest of $350,000 to Dr P. She wants him to have residue in addition." Again, it is not clear whether she specified the sum of $350,000 when mentioning the legacy to Professor Popovtzer, or whether that was Mr Berger's interpolation, or, indeed, in what terms she raised the subject matter. The notes conclude, "she again asks about $1 million - new building and sign. She speaks of husbands [sic] grave and granite used. I don't know why she spoke of this."
62 The testator returned to Mr Berger's office with the Popovtzers that afternoon and Professor Buhrich, after his interrupted interview (see [35] above), indicated to Mr Berger that he believed the testator had testamentary capacity. The three then went into another room, where Professor Buhrich and Mr Berger witnessed the testator's execution of the will and the codicil. They were not read over to her before being executed. There is no suggestion that she herself read them at that time and no evidence that she had read them at all. After the documents had been executed the testator said words to the effect, "Which of the two, Robert or Victor [Grynberg], would be making the decisions? The fat one or the other one, is it the one who came to me and gave me flowers? Not the one who was here with Doris, not the one that I saw yesterday. Leave Robert as the executor and trustee." Afterwards she proclaimed herself happy.
63 The conclusion that I have come to is as follows. It is clear that doubt has been cast upon the testator's testamentary capacity in relation to the 1987 will and that the plaintiffs as the proponents of the 1987 will bear the onus of proof of testamentary capacity. I am not satisfied in the requisite fashion that it has been established that the testator had testamentary capacity at the time of giving instructions for or executing the 1987 will. In coming to that conclusion I bear in mind the considerable complexity of her estate and of the dispositions of the will and the codicil. I bear in mind that for an understanding of the dispositions comparison and cross reference had to be made between the will and the codicil. I bear in mind the undisputed diagnosis of dementia of the Alzheimer's or frontal lobe type and the whole of the testator's medical history. I bear in mind the florid episodes that had occurred during 1986 and particularly in 1987. I bear in mind the contents of Mr Berger's notes recording the interviews which he had with the testator on 24 June and 20 and 22 July 1987 and what occurred on those three days. I bear in mind that, even as the testator made changes as to the provisions that she was making for various people, she did not appear to be able to bear in mind from the beginning to the end of one interview what provision she intended to make for particular individuals. I bear in mind that she was under 24 hour nursing care at the time of the instructions and execution. I bear in mind the revelations in the home nurses' notes of confusion, agitation and paranoid ideation in her home at the times leading up to and surrounding the making of the 1987 will. I bear in mind the evidence of the views that she expressed at this time concerning Dr Muller and John Landerer, which views I have already found were affected by paranoid delusion. I bear in mind the conflict of eminent medical opinion (particularly that of Professor Broe and Dr Phillips on the one hand and Dr Rosenfeld on the other) as to her testamentary capacity. I do not doubt that Mr Berger, whose conduct in the matter was in my view not open to criticism from a professional point of view, genuinely believed her to have capacity at the time the will was made and I bear in mind the view that Professor Buhrich formed and expressed at that time. However, those opinions must be viewed against the background of all the evidence and against the evidence of Professor Broe, which I accept, of the ability of persons with the testator's condition to present to the world as more capable than they in reality are. I bear in mind that I should not lightly make a decision depriving the testator of her power of testamentary disposition. But, taking into account the whole of the evidence, I am not satisfied that it is established that she had testamentary capacity at the time she gave instructions for or executed the 1987 will.
64 When I say that capacity is not established I should extrapolate that to say that I have doubts as to whether it is established that she could be said to have appreciated from moment to moment even generally the extent of her estate. But even if she could do this, I certainly do not think that it is established that from time to time within a comparatively short span she was able to keep together in her mind the various dispositions that she was making of her estate or of the ways in which she wished to distribute her bounty or the various calls upon it. The will was not read over to her at the time it was executed. Normally, when somebody who undoubtedly has testamentary capacity has given instructions for even a complicated will a couple of days before execution, the inference can be drawn that the testator assumed and correctly assumed that a will that they did not read at the time of execution was drawn in accordance with their instructions. I am not convinced that that inference can be drawn in the case of the testator. I have already commented upon the testator's apparent lack of memory from time to time during the instruction interviews as to earlier parts of the conversations and earlier expressed intentions in the same interview. In relation to her state of mind at the time of execution, I bear in mind that there must be doubt as to whether she knew at the time of execution which of the Grynberg brothers she had appointed as her executor.
65 I have preferred to make my primary finding in this case upon the general basis of failure to establish capacity. I have in making this finding adverted to her past and recent history of paranoid ideation, but only as part of the general picture of her mental condition at the time. However, if it were necessary, I should decline to find that she had testamentary capacity on the basis that she was under a delusion concerning at least one of the objects of her bounty, namely, Dr Muller. As I have said, she herself had marked Dr Muller out as an object of her bounty by her earlier gifts to him. This was entirely appropriate by reason of her closeness to his parents and to their children as they grew up, and the continuing association that he had with her as her general practitioner, including doing things far outside the general line of duty of a doctor by travelling to Zurich to rescue her at the time of the 1983 episode. I have already found that the views that she developed concerning Dr Muller that led to his exclusion from the 1986 wills and the reinstatement in the 1987 will of only a small gift (compared with the greater gifts in the earlier wills and in the 1988 will) were not simply harsh, unfair or unjust views concerning him, but passed into the realm of paranoid delusion. I do not see a practical way of curing the effect of this delusion by omitting from probate some portion of the will or in any practicable way. I have also formed the view that there were elements of delusion in her attitude towards John Landerer, and that this delusion was relevant to the will making process in light of her having consistently marked John Landerer out as an object of her bounty by giving him a legacy. However, in view of the fact that the gift was always maintained at the same level, I should not on the ground of delusion concerning John Landerer alone decline to find that the testator had testamentary capacity if I were otherwise convinced that she did.
66 Since the 1987 will is found to be invalid as made without capacity, the question of whether its making was vitiated by the exercise of undue influence does not arise. If it did, although I should find that the Popovtzers urged the testator to make greater provision for Professor Popovtzer than she previously had, I should find it difficult to come to the conclusion on the evidence that her will had been overborne. However, since that question could arise only in the case of a testator who had capacity, and therefore had a different quality of mind from that which I have found the testator to possess, I do not think it is appropriate for me to express any concluded view on this subject matter.
CONCLUSIONS AS TO THE 1986 WILLS
67 The evidence concerning the testator's condition at the time of making these wills and the circumstances surrounding their making is not nearly as ample as that in relation to the 1987 will and, as I have already noted in [2], the contest has not been vigorous, nor have the submissions been very detailed. There are reasons for this. From the point of view of the destination of the residuary gift, there is no difference between the 1986 wills and the 1985 will. From the plaintiffs' point of view, their arguments apply a fortiori to the 1986 wills. But it is immaterial from Professor Popovtzer's point of view whether one of the 1986 wills or the 1985 will is admitted to probate, since he does not take the residuary gift under any of them. However, the defendant asks me to admit the 1985 will to probate, and this can be done only if I find the 1986 wills made without capacity.
68 As has already been noted, there is no doubt that the course of the testator's mental abilities over the years was in general one of decline owing to the progression of her disease. However, the 1986 wills were made about a year before the 1987 will and the testator had not suffered the florid episode which led to her hospitalisation in March 1987; had not been found incapable of managing her own affairs (although this is a different issue); and had managed to live without the full time nursing supervision which became necessary from March 1987 onwards. However, the bladder operation had already been performed, the delusion as to Dr Muller had taken shape and was put into effect in the 1986 wills by the deprivation of Dr Muller of the former gift to him; the testator's behaviour had become generally erratic as observed by a number of people, to the extent that Mr Confos had withdrawn from contact with her; displays of paranoid ideation had become frequent (the conduct recorded at the time of her scheduling stretched back for many months); and there was in September at least the one quite florid episode where she inappropriately gave a large sum of cash to Victor Grynberg at a dinner then forgot overnight what had happened to it and was upset and confused when speaking to him the next day concerning it. Whilst, if an earlier instrument is to be admitted to probate, the Court must still come to its own conclusion and find formally that a later instrument (though not propounded) was made without capacity, the lack of support by any party to these proceedings of the 1986 wills is something that I take into account in coming to my conclusion concerning them. My conclusion is that, as these were the instruments in which Dr Muller was completely deprived of the provision previously made for him and as I have found that the testator was at that time under a paranoid delusion in respect of Dr Muller, by reason of that paranoid delusion itself the Court should decline to find that the testator had testamentary capacity at any of the relevant times. As I have said in [65] in relation to the 1987 will, I can see no way in which any of the 1986 wills can be admitted to probate in part, avoiding the effect of the delusion.
CONCLUSIONS AS TO THE 1985 WILL
69 Again, as we go back in time to the 1985 will (made by the testator in December 1985) we are treading a path along which the changes in the testator's condition are a matter of gradation and degree. There continues to be difficulty in making the decision at any point of time whether the testator had testamentary capacity. Whatever paranoid ideation the testator may have displayed up to December 1985, it had not, so far as can be perceived, affected her mind in making the gifts she made at that time to Dr Muller and John Landerer, who were the chief objects of paranoid ideation among the objects of her bounty. It was not until about that time that Mr Confos, whom I regard as an objective observer, first perceived a significant deterioration in the manner of her dealings with the world. There is no serious opposition in any quarter to a finding that she had the capacity to make the 1985 will. After consideration of all the facts I find that the plaintiff did have testamentary capacity at the time she made the 1985 will and that that will ought therefore be admitted to probate. Short minutes should be brought in at a time to be appointed to give effect to my conclusions. Questions of costs, if not agreed, can be raised at that time.
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