Haberfield & Ors v Larsson [2023] VSC 161

For Marina Elizabeth Larsson, being the defendant in No. S PRB 2018 03246 and the plaintiff in No. S PRB 2019 08476

Introduction and overview: three competing wills

1 This is the trial, together, of two related proceedings in the Trust, Equity and Probate List of this Court. Each proceeding concerns the estate of Mr Bernard Theodoor Jansen, deceased. The value of the deceased's estate is approximately $2,500,000. It consists of a share portfolio worth about $1,300,000 and cash and other assets of about $1,200,000.

2 Mr Jansen was born on 25 August 1938. He died on 16 November 2017, aged 79. Mr Jansen's last will was made on 8 March 2013, when he was 74 years of age. His penultimate will was made ten months earlier, on 9 May 2012, when he was 73 years of age. Those two wills are challenged in these proceedings. Mr Jansen's previous will was made on 3 October 2006, when he was 68 years of age.

3 Mr Jansen made six wills after he moved from Melbourne to the south-western part of Victoria in or about 1996. Each was prepared by solicitors - Taits Legal or a predecessor of that firm - in Warrnambool. At least five of those six wills mirrored wills made at the same time by Bernard's wife, Margaret Jansen. Bernard and Margaret had married in 1962. They were a devoted couple for 53 years until Margaret's death in 2015.

4 In 2018, the surviving executors named in the last will made by Mr Jansen - the will of 8 March 2013 - applied for a grant of probate in respect of it. Marina Elizabeth Larsson, being one of Mr Jansen's two daughters, lodged a caveat. Later, she was joined as a defendant. She contended that her late father did not have the requisite mental capacity to make the 2013 will. That is the issue in the 2018 proceeding.

5 In 2019, Ms Larsson, as a named executor of Mr Jansen's will of 3 October 2006, applied in a new proceeding for a grant of probate of the 2006 will. By the 2019 proceeding, Ms Larsson sought, also, declarations that the 2013 and 2012 wills were invalid for want of testamentary capacity. Later, within the 2019 proceeding, she contended, further, that her late father did not know and approve of the contents of his 2012 will.

6 By agreement, evidence in each of the two proceedings has been treated as evidence in the other. The surviving executors of the 2013 will ('the plaintiffs') say that it should be admitted to probate; or, failing that, that the 2012 will should be so admitted. It is common ground that, otherwise, probate of the 2006 will should be granted to Ms Larsson, with leave reserved to the other surviving executor of the 2006 will.

7 It is also common ground that Mr Jansen was suffering from dementia of the Alzheimer's type, to some degree, in 2012 and 2013. A provisional medical diagnosis of Alzheimer's disease was made in March 2012, and it was confirmed in April 2012. Mr Jansen's condition of Alzheimer's disease is the main thing on which Ms Larsson relies. She also says, partly in relation to testamentary capacity and partly in relation to knowledge and approval, that it was Margaret, rather than Bernard, who, at least principally, initiated, and gave the instructions for, the will-making processes that took place in 2012 and 2013. Ms Larrson submits that the solicitors did not sufficiently ensure that Bernard's wills of 2012 and 2013 reflected instructions emanating from Bernard, as distinct from Margaret.

8 There is no suggestion that any provision of the 2012 will or any provision of the 2013 will was suspicious or surprising or out of line with what might have been expected in the circumstances obtaining at the relevant time. Nor is there any claim of undue influence.

9 As will be seen, I do not consider that there is any great substance in Ms Larsson's criticisms of the processes adopted by the solicitors in relation to the making of Bernard's 2012 and 2013 wills. In any event, as will also be seen, I am satisfied that Mr Jansen had sufficient mental capacity to make the will dated 8 March 2013. There is no contention that he did not know and approve of the contents of that will. I am in any event satisfied that Mr Jansen did know and approve of its contents. Accordingly, the will of 8 March 2013 will be admitted to probate.

10 Although it is not necessary to decide, I am also satisfied, as will be seen, that Mr Jansen had sufficient mental capacity to make the 2012 will; and that he knew and approved of its contents. Hence, had I not been satisfied of capacity in relation to the 2013 will, I would have decided to admit the 2012 will to probate.

12 As indicated above, three ultimate issues have been litigated in this case, namely:

(a) testamentary capacity for the 2013 will;

(b) testamentary capacity for the 2012 will; and

(c) knowledge and approval of the contents of the 2012 will.

However, when I come to the circumstances in question in more detail, it will be convenient to do so largely in chronological order.

General legal principles relating to testamentary capacity and to knowledge and approval

13 There was little or no dispute between the parties about the legal principles relevant to testamentary capacity[1] or about those relevant to knowledge and approval.[2] A brief summary of the principles relating to testamentary capacity was given by Buchanan and Phillips JJA (with whom Ormiston JA agreed) in _Kantor v Vosahlo_2[3] as follows:

...a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.

That summary was referred to with apparent approval by Santamaria JA (with whom Beach and Kyrou JJA agreed) in Veall v Veall.[4] Santamaria JA added, by way of footnote,[5] the following observations:

The court [in Kantor v Vosahlo] referred to Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 566-7 per Knox CJ and Starke J. In Norris v Tuppen [1999] VSC 228, Ashley J said, at [330]:

'To have testamentary capacity at testatrix must

1. be aware of and appreciate the significance of the act which she is embarking upon;
2. be aware in general terms of [the] character, extent, and value of the estate with which she is dealing;
3. be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims;
4. have the ability to evaluate and discriminate between the respective strengths of those claims.'

What is being discussed is capacity of a particular kind ('testamentary'). For example, so long as it is established that the testator was aware of the reasonable claims upon his bounty and had the ability to discriminate between them, a will may still be admitted to probate even though the testator ignores the reasonable claims on his bounty or, if he addresses those claims, does not bother to discriminate between them. 'The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter': Easter v Griffith (1995) 217 ALR 284 at 290 per Gleeson CJ.

14 A helpful subsequent case referred to by the parties was Roche v Roche & Anor.[6] That was a case mainly about the effects of the deceased's fronto-temporal dementia on his testamentary capacity. There was also a lesser issue about knowledge and approval. Kourakis CJ explored the relevant legal principles in great detail, and in terms fully consistent with the statements of principle made by the Victorian Court of Appeal in Kantor v Vosahlo and Veall v Veall. His Honour said:[7]

Testamentary capacity

1. In Banks v Goodfellow,[8] Cockburn CJ articulated the common law test for testamentary capacity as follows:

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.

16 In Thomas v Nash,[9] Doyle CJ cited the passage and continued:

[71] This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:

If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.

1. As with other 19th century common law principles governing the legal effect of mental illness, the statements in Banks v Goodfellow no longer reflect modern medical knowledge. It is now recognised that there are a broad range of cognitive, emotional and mental dysfunctions, the effects of which are difficult to identify precisely or delineate from the exercise of ones 'natural faculties' and the reasoning capacity of the 'sound' mind. Moreover, rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.

2. In Re Estate of Griffith (Griffith),[10] Kirby P adverted to this issue of legal policy as follows:

(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.

1. In Banks v Goodfellow, Cockburn CJ explained that less than optimum mental capacity does not deny a person the power to make a testamentary disposition. Imperfections of memory caused by age or disease may still leave a sufficient understanding for the ordinary transactions of life including the testamentary disposition of property. The relevant question according to Cockburn CJ is:[11]

Was he capable of recollecting the property he was able to bequeath; the manner of distributing it, and the objects of his bounty?

1. In the matter of In the Will of Mary Wilson (Wilson),[12] Hood J stated the test as follows:

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. If his brain is affected by delusions, so as to interfere with the disposal of his property, and to prevent him from doing what he otherwise would have done had his mind been sound, then he does not possess testamentary capacity, and the will is not a valid will.

1. In Bailey v Bailey,[13] Isaacs J (with whom Duffy and Rich JJ agreed) stated the following propositions:

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v Batt; Bremer v Freeman; Burnell v Corfield).

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence (Symes v Green; Baker v Batt).

(3) The proponent's duty is, in the first place, discharged by establishing a prima face case (Bremer v Freeman).

(4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator (Durnell v Corfield; Baker v Batt; Barry v Butlin; Fulton v Andrew, and cases there cited).

(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments (Swinburne on Wills, Part II., sec 5, quoted with approval by Kent C in Van Alst v Hunter).

(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances (Barry v Butlin; Jones v Godrich; Wrench v Murray).

(7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries (Wrench v Murray; Brogden v Brown; Durnell v Corfield; Symes v Green; Bama Soondari Debi v Tara Soondari Debi; Sajid Ali v Idab Ali; Jagrani Kunwar v Durga Prasad; Banks v Goodfellow; Harwood v Baker; Van Alst v Hunter); (b) the exclusion of persons naturally having a claim upon the testator (Wrench v Murray; Brogden v Brown; Harwood v Baker; Banks v Goodfellow); (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit (Wheeler v Alderson; Baker v Batt; Barry v Butlin; Bur Singh v Uttam Singh).

(8) Once the proponent establishes a prima face case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof (Bremer v Freeman; Waring v Waring; Sutton v Sadler; Bama Soondari Debi v Tara Soondari Debi; Bates v Graves; Bur Singh v Uttam Singh).

(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that that [sic] the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property (Bar Singh v Uttam Singh; Wingrove v Wingrove).

(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue (Kinleside v Harrison).

(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions (Durnell v Corfield).

(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date (Perera v Perera, following Parker v Felgate; see also Griffin v Palmer and Barry v Butlin).

(citations omitted)

1. Having regard to the statement in the second proposition that the burden of proving the will lies on the party propounding it 'during the whole case' the use of the Latin phrase 'onus probandi' in item (8) should be understood to mean only an evidential onus. To that end, the word proof in proposition (9) means evidence, and in accordance with proposition (9), evidence not only of illness but that the illness affected the testator's mental faculties. When an opponent of a grant adduces such evidence the propounder of the will must show more than a prima facie case and must persuade the Court that, notwithstanding the evidence adduced by the opponent, the testator was not affected by a mental illness so as to deprive him or her of the capacity to make a will. That was the understanding of Creswell J, in Symes v Green,[14] when he said:

If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary that it was made by a person of competent understanding. But if there are circumstances and evidence which counter-balance that presumption the decree of the court must be against its validity, unless the evidence of the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.

1. Dixon CJ, Webb and Kitto JJ in Worth v Clasohm[15] explained the onus which falls back on the person propounding a will after some evidence of a mental illness affecting capacity has been adduced as follows:

A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution ...

1. In Griffith, Gleeson CJ (with whom Handley JA agreed) emphasised the gravity of a determination that a person did not have a sound disposing mind and made the important distinction between a testator with an antipathy, even an unreasonable one, towards a person who has a proper claim on his estate and a testamentary disposition which results from a disorder of the mind. Gleeson CJ said:[16]

Testamentary capacity is not reserved for people who are wise or fair or reasonable or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community but that does not make the will invalid.

That observation is, as will be seen, apposite to the circumstances of this case. On the other hand, Gleeson CJ recognised that a mental infirmity which denies testamentary capacity need not involve insane delusions.

1. In Read v Carmody,[17] Powell JA (with whom Meagher and Stein JJA agreed) restated the Banks v Goodfellow principle as follows:

[The matters that the court is required to consider when determining whether the deceased had testamentary capacity] have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that 'testamentary capacity' encompasses the following concepts:

1. that the testator - or testatrix - is aware, and appreciates the significance, of the act in law which he - or she - is about to embark upon;

2. that the testator - or testatrix - is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power;

3. that the testator - or testatrix - is aware of those or [sic] may reasonably be thought to have a claim upon his - or her - testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. that the testator - or testatrix - has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.

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.

1. The fourth requirement cited in the above passage, the capacity to evaluate and to discriminate between the respective claims, was explained in the following way by Windeyer J in Kozak v Berwecki:[18]

[42] Dr Peisah placed considerable emphasis on what in the instructions given to her for her first report, was said to be the fourth requirement for a valid will, namely the ability to evaluate and to discriminate between the respective claims of such persons ― the said requirement comes from Read v Carmody. It is in some sense just an amplification or restatement of the third requirement in Banks v Goodfellow namely that the deceased 'shall be able to comprehend and appreciate the claims to which he ought to give effect.' Such appreciation must involve evaluation and discrimination.

(citations omitted)

27 A similar exposition was given by White J in Gray v Hart:[19]

[342] Counsel for Hrs Hart relied on a passage from the judgment of Powell JA in Read v Carmody, 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 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.

[343] As I observed in Manning v Huwes; Estate of Ludewig, 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).

...

[345] The fact that Ms Harris suffered from a cognitive impairment cast the onus on Mrs Gray to show that Ms 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.

(citations omitted)

1. The discussion of the Banks v Goodfellow test in the preceding decisions of the Supreme Court of New South Wales is, with respect, best understood as an attempt to state the test in contemporary language. It can never be known whether the requirement that the testator has a capacity to 'evaluate and discriminate between' competing claims elevates the Banks v Goodfellow standard for testamentary capacity. Neither the original formulation nor the more recent elaboration are precise. The words seek to formulate a legal test which balances the competing considerations discussed by Gleeson CJ and Kirby P in Griffith.

2. A testator may have testamentary capacity even if his or her cognitive functioning is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for that functioning. However on both the original Banks v Goodfellow formulation and its modern restatement, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.

3. It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes. A testamentary disposition is not invalidated if a testator with that capacity decides on a capricious and indeed random disposition.[20] However, the nature of the disposition, in fact made, and its underlying reasonableness may have some evidentiary affect [sic, scil, 'effect']. In the Estate of Stanley William Church,[21] White J explained:

[53] Counsel for Marjorie put to Dr Peisah that the concept of officiousness or inofficiousness had no place in a determination of testamentary capacity in Australia in the 21st century. Her response was that, from a medical point of view, it was something that would be considered, but it was not for her to comment on the legal aspects. It is well settled that what is required for a person to have testamentary capacity will vary according to the complexity of the will and the officiousness or inofficiousness of the will. In Brown v McEnroe, Owen J said (at 138):

'Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide.'

[54] In Bailey v Bailey, Isaacs J said (at 570-571) that:

'The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances ...

As instances of such material circumstances may be mentioned:

(a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries ...;

(b) the exclusion of persons naturally having a claim upon the testator ...' (citation of authorities omitted.

[55] These authorities were referred to with approval by Santow J (as his Honour then was) in Ridge v Rowden; Estate of Dowling; (Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). The principle expressed does not run counter to freedom of testation. It merely recognises that whether a person has the capacity to exercise the freedom can depend of [sic, scil 'on'] what the particular will is to provide. As the High Court said in Gibbons v Wright (at 438):

'... the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument ...'

[56] I do not understand Windeyer J in Kozak v Berwecki to have suggested a different principle. As the concluding part of para [44] of his Honour's judgment makes clear, his Honour did not consider the will in that case to be inofficious. In my opinion Dr Peisah was right in taking account of the inofficiousness of the will in her assessment of Stanley's testamentary capacity.

(citations omitted)

1. A radical departure from long adhered to testamentary intention may also support an inference of incapacity at least in the absence of an adequate explanation.[22]

2. Finally I mention, that, as Vickery J observed in Nicholson v Knaggs,[23] it is not necessary for those propounding a will to establish that the testator was capable of understanding every clause of the will and is [sic, scil 'its'] legal effect. However, it must be shown that the testator understood that he or she was executing a will and the practical effect of its central clauses including the dispositions of property made.

3. The critical question in this case as will be seen when I turn to the medical evidence is whether the frontotemporal lobe mental impairment suffered by John was such as to deprive him of the capacity to appreciate, in the sense of understanding, the relative weights of the competing claims on his estate and to make a deliberative choice between them.

...

Knowledge and approval

1. In Veall v Veall,[24] the Victorian Court of Appeal summarised the principles relating to the requirement that a testator know and approve the contents of his or her will at as follows:[25]

[169] Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.

[170] The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will's legitimacy.

[171] In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.

...

[173] Knowing and approving of the contents of one's will is traditional language for saying that the will 'represented [one's] testamentary intentions'. 'Testamentary capacity' and 'knowledge and approval' are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:

[I]t may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred.

(citations omitted)

1. The Court then referred to matters which were capable of raising a suspicion including:

• the involvement of a beneficiary in the preparation of the will;
• a radical departure from previous wills;
• changing a will to advantage a person who has influence over the testator;
• feebleness of mind.

The Court continued:[26]

[179] It is the testator's understanding that is decisive: the issue to be determined is whether the testator knew and approved the contents of the will. Sufficiency of evidence will depend upon the circumstances of the case. In Tobin v Ezekiel Meagher JA put it as follows:

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will: Barry v Butlin...; _Gregson v Taylor ...; Re Fenwick ..._What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye the relevant circumstances were described ... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ...; Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ...; Nock v Austin ...; Fuller v Strum ...; Dore v Billinghurst.

(citations omitted)

15 Ultimately, Kourakis CJ was satisfied that Mr Roche had sufficient mental capacity to make the will in question and that he sufficiently knew and approved of its contents. His Honour upheld the will accordingly.[27]

16 Quite recently, in Carr v Homersham,[28] a decision of the Court of Appeal of New South Wales, the legal principles relating to testamentary capacity were again neatly summarised. Basten JA (with whom Leeming JA agreed) said (so far as presently relevant):[29]

Testamentary capacity is not a statutory concept but is derived from the case law, from which the primary judge fairly took as his starting point the decision of Cockburn CJ in Banks v Goodfellow. The concept is sometimes divided into component parts, with affirmative and negative elements. The primary judge accepted that there were three affirmative elements, namely:

(a) the capacity to understand the nature of the act of making a will and its effects;

(b) understanding the extent of the property the subject of the will; and

(c) the capacity to comprehend moral claims of potential beneficiaries.

The negative elements, commonly identified in archaic language, do no more than identify the conditions which might be understood to interfere with full testamentary capacity. They include 'disorders of the mind' and 'insane delusions'. Too much attention should not be paid to the precise language of the negative elements; importantly, although they tend to be expressed in general terms, they are only relevant to the extent that they are shown to interfere with the testator's normal capacity for decision-making.

17 So far as knowledge and approval are concerned, as the plaintiffs point out,[30] although it must be shown that the testator understood that he or she was executing a will and the practical effect of the central clauses in it, it is not necessary to show that he or she understood the legal effect of every clause.[31]

The issues in the present case more specifically stated

18 It is not suggested that Mr Jansen was prone to any delusions that affected his testamentary capacity, or that he suffered from any mental disorder at all, apart from Alzheimer's disease (to some degree), at the relevant times. Hence, for the two disputed wills respectively, there are only three, not four, Banks v Goodfellow issues in relation to which the evidence is to be assessed. Those issues are whether Mr Jansen had the ability to understand what he was doing when making the relevant will; whether he could understand the general nature and extent of the property of which he was disposing; and whether he had the power to appreciate and evaluate the moral claims on his testamentary bounty. There are no 'negative elements' to be considered.[32]

19 There being no suggestion of undue influence, and no suggestion that the provisions of Bernard's 2012 and 2013 wills were in any way surprising or odd, the issues about knowledge and approval fall to be determined in this case largely by reference to the resolution of the testamentary capacity issues.[33]

20 As will be seen, it is necessary in the circumstances of this case to consider not only the extent of Mr Jansen's remaining cognitive abilities as at the relevant times and the nature of the will-making tasks that he faced, but also the nature and extent of the support and assistance that was provided to him from time to time by his wife and his solicitors.[34] The medical evidence relating to Mr Jansen's cognitive abilities (including the evidence relating to formal testing) must be taken into account, but lay evidence,[35] including particularly the evidence of experienced solicitors,[36] can also illuminate issues of testamentary capacity and knowledge and approval. That is the situation here. Mr Jansen's personal characteristics, pre-morbid intellectual capacity and his family relationships and history, together with his and his wife Margaret's will-making history, all provide relevant context.

21 In some cases in which testamentary capacity or knowledge and approval is an issue, legal presumptions of fact play a part in the ultimate determination of the matter.[37] Not so in this case. The plaintiffs accept that, because Mr Jansen had dementia (to some degree), they cannot rely on any such presumptions and that the burden of proof, or in other words the risk of non-persuasion, rests with them throughout, both on the question of testamentary capacity and on the question of knowledge and approval.[38]

22 The evidence before the Court consists of the oral evidence of the witnesses (whom I will identify in a moment) together with the contents of the documents numbered 1-87, 89-91 and 97-99 in the Combined Court Book ('CCB'). The CCB was put together by the parties jointly, after the conclusion of the oral evidence and before the filing of the closing written submissions. Ultimately, there was no objection to the admission of the documents enumerated above, and they were admitted accordingly. Also, just before final oral submissions began, the plaintiffs filed an affidavit of their solicitor, John Wood, that satisfied me that all persons concerned had been provided with sufficient notice of these proceedings.

23 The plaintiffs' case was presented first. The witnesses called on their behalf were, in order, James Tait (a solicitor, now retired, who was involved in the preparation of the 2012 will), Dr Phillip Hall (Mr Jansen's main general medical practitioner between May 2013 and November 2017), Alex McCulloch (a solicitor involved in the preparation of both the 2012 will and the 2013 will) and Margaret Haberfield (who is one of the plaintiffs, but who was called as a lay witness to testify about her observations of Mr Jansen, whom she knew).

24 The witnesses called on behalf of Ms Larsson were, in order, Dr Nigel Jackson (Mr Jansen's main general medical practitioner between September 2008 and March 2013), Dr Bronwyn Mackenzie (a geriatrician who diagnosed Alzheimer's disease in Mr Jansen in April 2012), Ms Vivien George (a registered nurse, now retired, who, as the co-ordinator of a memory clinic conducted by Barwon Health, tested Mr Jansen's cognitive abilities in early 2012 on a referral from Dr Jackson and for the purposes of the assessment to be done by Dr Mackenzie), Ms Larsson herself (who gave evidence about her deceased father and the broader family) and Ms Gayle Dwyer (an aged care assessor who assessed Mr Jansen and his wife for aged care assistance in 2013-2014).

25 There was no suggestion that any of the witnesses was doing other than the best they could to give what they considered to be accurate and useful evidence. There was no attack made on the credit of any of them. I accept that each witness gave evidence honestly and to the best of their ability. Any relevant features of, or limitations on, the evidence of the respective witnesses will be referred to in due course.

Mr Jansen's early life, religion, marriage, education, architectural work, general personality, church involvement and places of living

26 The matters set out below under the present heading are not controversial.

27 As mentioned above, Bernard Jansen was born on 25 August 1938. He was born in the Netherlands. He was educated there, apart from a three month period during which he attended an Australian secondary school while his father was working temporarily in Australia. According to Marina Larsson, her father 'grew up in Calvinist Holland in a very religious family'.[39] He remained closely attached to his Christian religion throughout his life.

28 Mr Jansen migrated to Australia with his parents in 1958. They settled in Melbourne.

29 Some four years later, in 1962, as mentioned above, Bernard married Margaret (nee Roberts). He was then about 24 years of age. The couple married in Scots' Church, Melbourne.[40] Margaret was a secondary school teacher of history and English. For the first 34 years or so of Bernard and Margaret's marriage, they lived in suburban Melbourne. They brought up two daughters. I will come to the family history in more detail soon. For the moment, I note that, according to the evidence, Bernard and Margaret constituted a strong and close 'team' throughout the 53 years of their marriage.

30 As a young man, Bernard attended Melbourne University and studied architecture. Thereafter he worked for many years as an architect with the well-known firm Bates Smart. He took part in the design and construction of many high rise buildings in central Melbourne. He also went to the USA for a time to work on a commission given to Bates Smart by the Australian Government to design and build a new Australian Embassy in Washington DC. At one stage Mr Jansen moved into the field of interior design and interior architecture.[41]

31 According to Marina Larsson, her father was very good at the business side of architecture, perhaps not so good at the design side. He was very good at brokering relationships and of scheduling the construction of buildings. He was good at bringing people together and on the building side of architecture. Marina thought that her father was probably not a partner in Bates Smart but that he was nevertheless a senior and respected person in that firm.[42] I accept this evidence. The picture of Mr Jansen thus painted by Marina tallies with certain descriptions given by other persons who came into contact with Mr Jansen later in his life. For example, in a report dated 21 March 2012, the nurse Ms Vivien George described Mr Jansen as 'a delightful chap, with a reactive bubbly affect'. Likewise, Dr Phillip Hall gave evidence (which I accept) that on first meeting Mr Jansen in May 2013 he found a man who was remarkably fit physically, who looked very well, who was very polite, who interacted very well and who spoke with passion about his former career as a high level architect.

32 The evidence includes a statement to the effect that, in addition to practising as an architect, Mr Jansen taught architecture and industrial design.[43] In any event, Mr Jansen retired from Bates Smart in 1995, at the age of about 57 years. In about 1996, Bernard and Margaret moved from suburban Melbourne to a small farm in Noorat in south-western Victoria. Margaret then taught for a period at the nearby Glenormiston College. Bernard worked for a few years as an architectural assistant to Neil Holland, an architect based in Warrnambool. He and Mr Holland became good friends.[44] Mr Holland is one of the plaintiffs. He was not called as a witness but no party sought to make anything of that.

33 Mr Jansen gave up his registration and retired as a professional architect completely in the early to mid-2000's.[45] After that he became involved from time to time in the 'Frontier Services' of the Uniting Church of Australia. That was a Church group comprised mainly of people with practical skills, such as architects, builders and engineers. They would go to remote parts of Australia - often to Aboriginal communities - and build infrastructure for the local people. Mr Jansen loved doing that. He went on three or four trips, about once per year. Mr Jansen was involved with the activities of the Uniting Church in other ways as well.[46]

34 In the second half of the 2000's, Bernard and Margaret moved from Noorat to a house in Warrnambool.[47] Between 2013 and 2015, Margaret was suffering from the condition, myeloid leukaemia, that ultimately claimed her life. She was treated from time to time in a hospital conducted by South West Health Care, Warrnambool.

35 In 2014, Margaret and Bernard moved into Mercy Place, an aged care home, in Warrnambool. I will return to that matter in due course. Margaret and Bernard were both residing at Mercy Place when they died in 2015 and 2017 respectively.

The Jansen family history in more detail, including especially Marina's observations about the family

36 Once again, the matters set out under this heading are not controversial.

37 Bernard and Margaret had two children, Marina Larsson (the defendant) and Louisa Jansen ('Louisa').[48] Marina was born in 1967, and Louisa in 1969.[49]

38 According to Marina, the Jansen family lived a happy, middle-class life while she and her sister were young. Bernard and Margaret provided everything for their children.[50] The family resided in suburban Melbourne, although, in or about the late 1970s, they bought a hobby farm at Ruffy near Seymour, which they enjoyed visiting on weekends and holidays.[51]

39 In the late 1980s or early 1990s, Margaret, in addition to school teaching, trained to be a lay preacher. After qualifying, Margaret would often conduct services at small churches in the Ruffy district.[52]

40 In Marina's view, her father and her mother played to their respective strengths in their partnership. Her mother was very good at structuring Bernard's life and their daughters' lives, and was good with money. She was extremely good at budgeting. Her father was really good around the house, which was not surprising, given that he was an architect. Margaret did the bulk of the childcare, but Bernard took his daughters out on weekends, not only to the countryside, but also to places like the National Art Gallery of Victoria.[53] Around the same period, Margaret suddenly became interested in investing in company shares. She had a serious knack for share dealing. She got Bernard involved as well. They each had share portfolios. That is why there are shares in Bernard's deceased estate.[54]

41 Marina says that her father did not do much without Margaret. Margaret would take the lead in legal, accounting and financial matters. She was very industrious and switched on. Again, this was 'about playing to your strengths in a relationship'.[55] Bernard would always drive. He would always be the one to deal with tradespeople. So there was a division of labour within the relationship.

42 Unfortunately, in the early 1990s, when Marina and Louisa were in their 20s and both living away from home, Louisa suffered a drug-induced psychosis, and relationships within the Jansen family, apart from the relationship between Bernard and Margaret, began to break down.[56] Since then, Louisa has had mental health and drug issues, and has been in and out of gaol.

43 Louisa has six children (including two sets of twins) by four different fathers. In order of age from eldest to youngest, they are as follows:

(a) Emma Wilson ('Emma') born in August 1994;

(b) James Wilson ('James'), also born in August 1994 and the twin of Emma;

(c) Ruby Thompson ('Ruby') born in September 1998;

(d) Georgia Hickmott ('Georgia') born in March 2007;

(e) Michael Hickmott ('Michael') also born in March 2007 and the twin of Georgia; and

(f) Harry Jansen ('Harry') born in March 2009.

44 Emma and James are twins from one father. Ruby is from a second father. Georgia and Michael are twins from a third father. Harry is from a fourth father.[57] Louisa has not had custody of any of her six children for any significant length of time. As at October 2006, when Mr Jansen's 2006 will was executed, Emma and James were 12 years old, and Ruby was eight years old. Emma and James lived with their father. Ruby lived with a foster family. Georgia, Michael and Harry were yet to be born. When Mr Jansen's 2012 will was executed in May of that year, Emma and James were 17 years old, Ruby was 13, Georgia and Michael were five, and Harry was three. Each was about 10 months older when Mr Jansen's March 2013 will was executed.

45 I turn now to focus more directly on Marina's evidence about her own experiences and observations as a member of the family. I note that Marina has a PhD in history and that she works in the field of heritage. I note also that the plaintiffs do not suggest that Marina's aim in these proceedings is to obtain a greater share of her father's estate than she would obtain under the 2012 or 2013 will. Indeed, it is arguable that the 2012 will would give Marina a greater pecuniary benefit than the 2006 will would.[58] Her motives appear to include dissatisfaction with the work of the solicitors who prepared her parents' wills in 2012 and 2013; 'real concerns' about her father's capacity to sign a will; and a desire to achieve what she regards as a proper outcome.[59] She says that it is very important to her that correct processes and principles are followed.[60] She also refers to dissatisfaction with the way in which the solicitors had administered her late mother's estate, but no evidence about this was given and Marina's counsel disavowed any reliance on it.[61]

46 In her 20s, Marina changed her surname from Jansen to Larsson because she wanted a separate and distinct identity from her family.[62] She wanted to strike out by herself as her own person and lead a life driven by her own values.[63] This occurred in a period during which she did not see or speak to her parents for five years.[64] At around the same time Marina met, and commenced a same-sex relationship with, Katie Somerville.[65] When Marina did eventually introduce Katie to her parents as her partner, her father struggled with the idea for a time (he having come from a very religious family). Later, however, they all 'moved along', and Bernard visited Katie's parents in New South Wales. They all had Christmases together. It came together 'really nicely and really unexpectedly'.[66] Marina's mother 'was a bit more okay with it' from the start.[67]

47 About ten years later, in December 2006, Archie Somerville ('Archie') was born. Archie was donor conceived.[68] Marina is Archie's non-biological parent. She has a parenting order from the Family Court and she is on Archie's birth certificate.[69] Archie had not been born at the time of Mr Jansen's 2006 will. Archie was five years old at the time of the 2012 will, and six years old at the time of the 2013 will.

48 According to Marina, the circumstance that Archie was a non-biological child of hers did not really manifest itself, especially when she and her parents and Katie were with Louisa's children, some of whom lived with foster parents who were also their non-biological parents. So the family relationships were complex, some biological and some not. Marina considered that her parents 'on some level' accepted Katie and accepted Archie. However, Bernard did say sometimes that Archie was not related to him.[70]

49 Bernard and Margaret did not generally look after Archie, save for one day when Margaret came to Melbourne to look after him.[71] Bernard and Margaret did not come to Melbourne to see Archie on his birthday.[72]

50 Nevertheless, Marina describes the period 'from the early 2000s to 2012' as 'a bit of a golden era for our family'. She says: 'We were getting along well. My 40th birthday was fantastic. They came down to Melbourne. We would go up there for Christmas and we would bring Emma and James and Ruby. It was a really, really good time...'.[73]

51 On the other hand, in January 2010 there were conversations and interactions between Marina and her parents that disturbed Marina and indicated to her that her father had changed. At that time, Marina, Katie and Archie were staying with Bernard and Margaret in Warrnambool. Margaret had been telling Marina about Bernard's behaviour being really difficult and that he was grumpy and anxious and depressed. Bernard would 'just sort of stand there and not say anything and then he would get grumpy'.[74] Margaret was apologising for Bernard's behaviour. Further, Bernard appeared to be quite hostile to Archie, who was four years old at the time, shoving him occasionally or just ignoring him. At one stage, Bernard pushed Archie out of the way. This caused Marina to ask her father to go to the front of the house for a talk. She put to him that he did not seem to be himself and that he seemed to be a bit angry or frustrated. She asked him what was happening. He then 'lost it' with her and was angry. He said things that did not make sense. Things that were contradictory. For example, Bernard said that Marina was 'the bad one' and that Katie was 'the good one', and then the reverse. He was struggling to get words out of his mouth and to regulate himself and to collect his thoughts.[75] Marina thought it best to end the conversation and go back to speak with her mother. But Marina finished up feeling a bit unsafe there, and left the next day, because some of her father's behaviour was 'not cognitively okay'. This was a far cry from what had happened in the previous year (2009) when, at the launch of a book that Marina had written, Bernard had come up to her and had said that he was very proud of her. Marina's impression was that Bernard had some loss of the ability to self-regulate. Bernard's attitude to Archie at this time was a contrast to prior times. Bernard had made him a billycart on a previous occasion. The incident in January 2010 was a 'wake-up call' for Marina that, maybe, on some deeper level, perhaps to do with Bernard's religious convictions, there was a level of discomfort there.[76]

52 When Marina was leaving the house in Warrnambool on the occasion in January 2010 just discussed, Margaret had said to her words to the effect: 'Now you know what I'm living with. Bernard is not okay'.[77] After that, for a time, Marina would ring her parents every Saturday. If anything, this brought Marina closer to her mother, who was struggling to live with someone 'who was emotionally disinhibited and having memory problems'.[78] As time went on, her parents were less and less confident about driving to Melbourne, but they still did (with Bernard driving), and they stayed at a particular hotel in Carlton. At some point in 2011, according to Marina, 'it became clear' that Bernard could not speak on the phone and hold a conversation. Marina would have to do an enormous amount of work and ask straightforward questions, or her father would just not say anything. At one point, Margaret said to Marina that it was too hard for Bernard to speak on the phone and that future phone calls should be restricted to herself. Marina estimates that she would have seen her father in person about three times during 2010.[79]

53 Marina began to notice that, during family get-togethers, Bernard would just stand in the background with a blank look and not do very much, receding into the background.[80] There were occasions like this in Warrnambool (at around Christmas 2011) and at the Geelong foreshore in or about March 2012.[81] On the latter occasion (in Geelong), those present were Margaret, Bernard, Marina, Archie, Katie and Harry. Bernard was able to recognise everyone present on that occasion.[82] (Indeed, Marina does not say anywhere in her evidence that there was ever an occasion when Bernard was unable to recognise the persons present.) On the other hand, in Marina's perception, Margaret was doing her best during that period to preserve Bernard's dignity and to craft ways forward for him such that he felt that he was in control and contributing and being positive, for example, in relation to choosing dishes in restaurants or deciding when to drive home.[83]

54 Beginning in July 2011, there was an attempt on the part of Marina and Katie to enter into a kinship foster care arrangement in respect of Louisa's sixth child, Harry, who, as mentioned above, had been born in March 2009. Very soon after Harry was born, he went to a foster family, the Millgates. The Millgates looked after Harry as an infant very well.[84] However, the Department of Human Services ('DHS') decided that Louisa should be given another chance to look after Harry. Harry then went back to Louisa, but that did not work out. Next, Harry went to the Thompsons, another experienced foster family, who were fostering Ruby at that time. However, DHS considered that the Thompsons were too old to continue to look after Harry as well. Consequently, in July 2011, DHS approached Marina and Katie to see whether they would take Harry into a kinship foster care arrangement. Marina thought that this would be an 'amazing opportunity' to do something positive within the family. Marina and Katie connected Harry back to the Millgates and became 'a bit of a hub' for the other kids.[85] However, it became clear that the dynamic within the family with Harry was not working out, in that he had some attachment issues (not uncommon for children who have been moved around). Marina and Katie consulted a child psychologist and Katie took some time off work to try to settle Harry in, but to no avail. Marina and Louisa made the 'heartbreaking, devastating' decision to relinquish Harry. DHS then organised a pathway back to the Millgates for Harry. The transition was done in a slow and considered way. Marina did not tell her parents about the decision initially. According to Marina, this was because her mother was struggling with Bernard and with his Alzheimer's disease. (Margaret had told Marina at about this time (i.e. in the first half of 2012) that Bernard had 'the big A', i.e. that Bernard had been diagnosed with Alzheimer's disease. At that stage, Marina thought that this had been obvious for a while).[86] Also, Marina wanted to be sure that there was a really secure arrangement for Harry before telling her mother what had occurred. Marina told her mother about the relinquishment for the first time in May 2012. Her mother was 'absolutely devastated' (and Marina could understand why).[87] Marina conveyed the news to her mother by telephone in a 'really distressing and alarming phone call'. Marina felt that she had let her family down.

55 Even in May 2012, when Marina told her mother that she and Katie had relinquished Harry, the position of Harry was not fully settled. The Thompsons made a bid to foster Harry. This was opposed by DHS. Margaret Jansen was adamant that Harry should go to live with the Thompsons if Marina and Katie could not look after him. Margaret considered that Marina had done a terrible thing. As a result, from May 2012, the relationship between Marina and her parents broke down. There were no more weekly telephone calls - indeed, no contact at all - until Harry was confirmed with the Millgates, which happened in mid to late 2013.[88]

56 Contact between Marina and her mother was only re-established by the intervention of Marina's aunt.[89] In mid to late 2013, Marina began again to make phone calls to her mother on Saturday mornings. In those conversations, Margaret would say words to the effect: 'I'm a carer now. You know dad's really grumpy all the time. He just sits around the house'.[90] According to Marina, at that time, everyone in the family knew that Bernard had Alzheimer's.[91] But it seems that she had no direct contact with her father at all (by telephone or in person), and no contact with her mother except by phone, between May 2012 and February 2014.[92]

57 On 14 February 2014, while at work in Melbourne, Marina received a phone call from the manager of a hotel in Geelong, who said that Margaret had had a fall in the hotel and was in a state on the floor, and that Bernard had wandered off.[93] Marina drove down to Geelong. In the meantime, Bernard had been found. Marina was reunited with her parents in the emergency department of the Geelong Hospital. Margaret was very unwell. Bernard was completely disoriented. So it was clear that Marina needed to help them and to put aside the unpleasantness relating to Harry. Marina drove her father back to Warrnambool. That began 'a whole new era of their health declining rapidly'.[94] Marina became a support and care person. She helped to make arrangements with the abovementioned Margaret Haberfield, 'who is just a complete gem',[95] for the care and support of Margaret and Bernard.

58 So far as her parents' succession planning is concerned, Marina did not ever discuss this with her father. Any conversations were with her mother. It was as if Margaret had crafted one single will.[96] At some time after 2006, Marina became aware of a Commonwealth scheme under which parents who had children with disabilities could set up a disability trust for them. Marina suggested to Margaret that this might be applicable to the Jansen family and might be protective for Louisa (whom they all loved and respected)[97] and beneficial for Bernard and Margaret.[98] Margaret thought that this was a good idea.[99] Marina was relieved and happy about this, because she was concerned about Louisa's vulnerabilities.[100]

59 Marina has no recollection of any conversations with her mother (or her father) in or about 2012 or 2013 about changing Margaret's and Bernard's wills. On the other hand, Marina did have such a discussion with her mother in 2014, when Louisa was about to come out of gaol. Marina was concerned that drug addicts like Louisa might be more prone to overdose just after leaving prison; and that, if Louisa were to predecease Marina, this might affect the way in which the estate flowed. As a result, Margaret went to see Taits, and this led to the 2014 codicil to Margaret's will.

60 In cross-examination, Marina accepted that Louisa's children would be in greater financial need than Archie would be.[101] Marina also accepted that her parents believed that Katie's parents were wealthy. In fact, however, Katie's parents were not wealthy. Their assets were much less valuable than the assets of Bernard and Margaret.[102]

61 Marina's relationship with Louisa is strained. Marina has not seen Louisa, or had any physical contact with her, or spoken to her, since Louisa's daughter, Ruby, was born in 1998.[103] Marina did not want to disclose her home address to the Court in this proceeding because she was concerned that her safety would be compromised if Louisa discovered her address.[104]

62 On balance, in my view, Marina's evidence about her parents and about the Jansen family history generally does little to undermine the plaintiffs' case and, in some ways, tends to support that case. In particular, Marina paints a picture of her father as:

(a) a person with a delightful personality (being a personality which, according to other evidence,[105] he retained until at least the first half of 2013);

(b) a devoted husband to Margaret, who was also devoted to him;

(c) a person who, from the outset, played to his strengths in his partnership with Margaret, generally leaving legal, accounting and financial matters to her;

(d) a person whose religious convictions played a part in the incident involving Archie of January 2010, being an incident that was isolated, in the sense that it did not recur on future occasions when Bernard and Archie were both present at family gatherings;

(e) a person who was still driving long distances until at least 2012;

(f) a person who, although quieter and more withdrawn at family gatherings in 2011 and 2012, could still recognise all of the family members present at the get-together in Geelong in March 2012;

(g) a person who, although needing a significant degree of consideration, care and support from Margaret as from about 2010, became part of 'a new era' of his and Margaret's health 'declining rapidly' that only began in or about February 2014.

63 Further, as the plaintiffs point out,[106] insofar as Marina may have had 'real concerns' about her father's capacity to make a will in 2012 or 2013, Marina had only very limited contact with her father after January 2010 and had no contact with him or with her mother, at all, even by telephone, between May 2012 and mid to late 2013. And it seems that Marina did not have any physical contact at all with either of her parents between May 2012 and February 2014.

Margaret Haberfield's evidence about the Jansens

64 As mentioned above, Marina regards Mrs Margaret Haberfield as 'just a complete gem', and Marina trusted her to provide care and support for Bernard and Margaret in Warrnambool after the events of February 2014. Mrs Haberfield has no pecuniary interest in the outcome of this case. In her evidence, Mrs Haberfield was demonstrably doing her absolute best to remember things and to assist the Court to come to a proper decision, but she did have quite some difficulty with dates and the order of events. Taking into account other matters that are common ground, I would take the following from Mrs Haberfield's evidence.

65 Mrs Haberfield lives in a small town on the Great Ocean Road, about 25 kilometres from Warrnambool. Her mother and Margaret Jansen's mother were cousins. So she and Margaret Jansen were second cousins. However, she and Margaret had not known each other, and had not met, until after the Jansens moved to Noorat in about 1996. They first met at a local church where Margaret Jansen was acting as a lay preacher. Their respective husbands met each other too. From that time, the two couples became close friends and spent quite a bit of time with each other. After the Jansens moved to Warrnambool (which occurred in the second half of the 2000s), the Haberfields saw more of them than before: they met nearly every week, and often two or three or even more times per week.[107]

66 According to Mrs Haberfield, after the Jansens moved to Warrnambool, 'Bernard at that stage was okay. Was really good. But Margaret [Jansen] was struggling a bit [with her health]'.

67 Another reference point for Mrs Haberfield in her evidence was the time when Bernard and Margaret were admitted to Mercy Place. It is common ground that that occurred on 17 April 2014.[108] Mrs Haberfield recounted some episodes relating to Bernard's conduct or behaviour after he was admitted to Mercy Place, but, because of the lapse of time and the (admitted) rapid decline of Mr Jansen from about February 2014 onwards, those episodes do not bear sufficiently on the present issues to warrant examination.

68 Prior to the Jansens being admitted to Mercy Place, Mrs Haberfield would visit them in Warrnambool almost every week after shopping. In addition, when Bernard was 'quite well', he would drive out to the Haberfields' home two or three times per week. He would not stay long - just have a cup of tea and go back home. Margaret would come with Bernard if she was free, but, otherwise, Bernard would drive out on his own.[109]

69 Shortly prior to 8 March 2013 (being the date of Bernard's 2013 will), Bernard went to the Haberfields' house to discuss with Mrs Haberfield what he might say in his will.[110] On this occasion, Bernard had driven out on his own, not with Margaret.[111] The Haberfields were 'quite worried about how he was going to get home'.[112] In any event, Bernard told Mrs Haberfield that he was concerned about his two daughters; and he asked her whether he should give his money to them or, instead, to his grandchildren.[113] In this context, Bernard told Mrs Haberfield that Margaret (Jansen) wanted Bernard to leave some money to their grandchildren. Bernard then said to Mrs Haberfield:[114]

... I don't know whether that's what I want to do, or what do I do? What would you do?

Mrs Haberfield replied that, in the case of her own family, her approach would be to give her money to her own children, who could, in turn, choose how to deal with the money, such as by benefiting their respective children either sooner or later. On the other hand, Mrs Haberfield, being aware of the Jansens' particular family situation, said to Bernard that she saw no problem about Bernard giving something to his grandchildren, as well as something to his daughters.[115]

70 On this same occasion, Bernard also discussed with Mrs Haberfield whether Bernard should leave anything to Archie (as distinct from the other grandchildren).[116] Bernard said that Archie was not of his bloodline.[117] Mrs Haberfield suggested that Bernard ask Margaret for her view on this, but Bernard said that he had already done so, and that Margaret wanted to include Archie, but Bernard was concerned about this.[118] Mrs Haberfield then asked Bernard why he was asking her about this. He said that he believed that she would give him a truthful account of her opinion.[119] Mrs Haberfield then commented that there were many cases of adopted or fostered children who were deemed to be the parents' own children; and she asked Bernard to put himself in Archie's position and consider how Archie would feel later in life if the other grandchildren got money and he got nothing. Bernard then said: 'I think you're right'; and he indicated that he would include Archie.[120] He did not say how much money he would leave Archie.[121]

71 Subsequently,[122] but apparently still prior to the 2013 wills being signed,[123] Bernard and Margaret, together, had lunch with Mrs Haberfield at the Haberfields' home.[124] They asked her whether she would accept appointment as an executor of their wills, and she said that she would.[125] Mrs Haberfield says that she also signed some forms that Margaret Jansen gave her.[126]

72 During the lunch at the Haberfields' home, the question of whether Archie should be included in the wills came up again.[127] Margaret was in favour. But Bernard said: 'No, he's not our child, he's not of our blood'. Margaret looked at Bernard; and then looked at Mrs Haberfield, as if to say: 'Where do I go from here?'. Then Mrs Haberfield gently said to Bernard: 'Well I think Bernard, you know, you follow Margaret, she's a good lady and she knows what's what and she'll do the right thing, so just leave it be'. Mrs Haberfield does not know what happened about Archie after that.

73 At the end of Mrs Haberfield's evidence-in-chief, but before it emerged clearly (in cross-examination) that there had been two separate conversations about Archie (one with Bernard alone and the other with Bernard and Margaret together), Mrs Haberfield was asked the following questions by me, and she gave the following answers:[128]

When you were having that conversation with Bernard about Archie, about whether he should put Archie in the will or not?---Yes, yes.

Do you remember what Bernard was like generally at that time? Was he, you know, was he on the ball or not on the ball at that stage?---He'd not - no not quite on the ball at that stage. Not quite at all. He sort of couldn't seem to grasp what Margaret was sort of trying to tell him, you know, and he listens to her, but he listened to me, too. I don't really think he took it all on board.

How long had he been like that, do you remember? Was that something that had just sort of started to happen to him around that time, you know? Or had he been not on the ball too much for how long prior?---I don't really know for how long prior. But it was prior because he would come out to our place, you see, and John [Mrs Haberfield's husband] would take him for a drive around about and what have you, and John came in one time after they'd come back and Bernard had gone off. He said, "Do you know", he said, "Bernard should not be driving". He said he wanted to drive John's car and John wouldn't let him, and he sort of got a little bit of hoity toity about that. But he really wasn't up to it.

Not up to driving, you didn't think?---Yes, no, no.

But did he know who his family were at that stage, you know? Did he know which - - -?---I think so, yes. I think so, yeah.

Did he know what he owned?---Yes, I think he did, yes. At the start there he did.

Did you get the impression when you were talking to him about Archie that he knew he was talking about, what he would be leaving for Archie and the others as his will - in his will? Did he understand that much?---I think so, I think so. He just sort of - yeah, I reckon he did, because he said, "I don't have to give any money to Archie", you know. "I don't need to. He's not mine".

So you got the impression that he understood that he was talking about what would be going to Archie ---?---Yes.

--- after he died?---Yes.

In his will?---Yes.

He knew that much?---Yes, he did, yep.

Okay, all right, thank you?---There wasn't much with money that he didn't realise and he, you know, didn't know about. He was pretty up with the money part, which was good, yeah.

74 In their final written submissions,[129] the plaintiffs rely on that passage of transcript to contend, in summary, that it was Mrs Haberfield's evidence that, at around the time of making the 2013 will:

(a) she thought Bernard knew who his family were at that stage;

(b) she thought Bernard knew what he owned;

(c) Bernard was aware that he was leaving Archie and others part of his assets in his will after he died; and

(d) there was not much with 'the money' that Bernard did not realise and he was 'pretty up with the money part'.

I accept that this is a fair summary of things that Mrs Haberfield said in her evidence, save that I note that Mrs Haberfield also said, in the same context, that Bernard was 'not quite on the ball at that stage. Not quite at all'; that she did not really think that Bernard 'took it all on board'; and that she did not think that Bernard was up to driving at that time.

75 Marina's counsel did not contend that the plaintiffs' summary of Mrs Haberfield's evidence set out above was not a fair summary. Indeed, Marina's counsel omitted to mention Mrs Haberfield's evidence in her final written submissions at all. During oral submissions, she referred to it only in answer to a question from me; and she then submitted, only, that Mrs Haberfield's evidence indicated that Bernard was not considering clearly what he wanted to do with Archie, but was doing what other people suggested he should do.[130] I disagree. Mrs Haberfield's evidence confirms that Bernard was struggling somewhat cognitively as at March 2013, but it also tends quite strongly to indicate that Bernard had the capacity to understand, and did understand, what a will was, what assets he had and what the moral claims on his bounty were; and that he was able to evaluate and discriminate between those claims. It also indicates that he was prepared at that time to question even Margaret's proposals for their wills.

76 Further, given that it is common ground that Alzheimer's disease tends to progress over time, Mrs Haberfield's evidence is even more helpful to the plaintiffs in relation to the position as at the first half of 2012, when Bernard gave instructions for, and in due course signed, his 2012 will.[131]

77 As indicated above, it is common ground that Bernard was suffering from Alzheimer's disease (to some degree) during the period when he made the 2012 and 2013 wills. However, that does not necessarily mean that he lacked the capacity to make those wills (or either of them), or that he did not know and approve of their contents.[132] I turn now to the medical and like evidence relating to those matters.

78 At the time of the hearing, Neil Jackson was a sole general medical practitioner in Terang. He was about to retire after more than 40 years of general practice, including 35 years in Terang. His experience was broad, and formerly included obstetrics. He looked after patients 'from birth to death'.[133] He had many patients of 'advanced age' (which he defined as 'over 90'), and had attended nursing homes in Terang. He was familiar with the physical conditions that ageing might bring about. He had some experience of patients with degenerative cognitive impairment.[134]

79 Dr Jackson had had both a personal and a professional relationship with the Jansens. He said that he had first got to know the Jansens 'probably about 30 years ago'.[135] Dr Jackson's wife and Margaret Jansen had been working colleagues at Glenormiston Agricultural College. Dr Jackson came to know Bernard as well as Margaret, although Bernard to a lesser extent. The Jansens were guests at the Jacksons' Christmas lunch 'probably about 28, 27 years ago'. Dr Jackson visited the Jansens' home once, and they went to the same church, but the personal connection was 'very sporadic'.

80 Bernard first came as a patient to Dr Jackson in 2008.[136] He was referred by another doctor, Dr Janet van Leerdam, who practised in another town in the district. This appears to have coincided, roughly, with the Jansens' move from Noorat to Warrnambool. A referral letter from Dr van Leerdam dated 18 September 2008 states that Bernard 'looks after his health well and has no real issues and no major past history'.[137] Dr van Leerdam also mentioned that Margaret had reported to her that Margaret thought that Bernard 'was losing his memory a little which she especially noticed on their last overseas trip'. However, Dr van Leerdam said that she was more concerned about Margaret's health. Dr Jackson did not follow up the reference to memory problems for Bernard at that stage.

81 Dr Jackson's progress notes for Bernard were admitted in evidence. Dr Jackson also had some other file notes to which (by permission) he referred as needed.[138] The first entry in the progress notes is dated 15 June 2009. It contains no reference to memory or cognitive problems. Nor do the notes for Bernard's next four visits in 2009 and 2010. The first such reference is for a visit on 4 April 2011. It simply reads, '? Memory issues'. Dr Jackson had no recollection about that matter.[139]

82 For 21 December 2011, there is an entry in Dr Jackson's progress notes that reads: 'Brought in by wife. Concerned regarding memory. Exam Normal. Get screening tests and review'. Dr Jackson explained that this would have been a brief consultation, involving a preliminary examination looking for any gross neurological defects; and that nothing of that nature was found.[140] Requests for screening tests were sent to a pathology laboratory.

83 On 10 January 2012, Dr Jackson administered to Bernard a modified form of a standard type of cognition test known as the Mini Mental State Examination ('MMSE').[141] A completed pro forma for the MMSE done on 10 January 2012 is in evidence.[142] Dr Jackson scored Bernard at 18/30. Dr Jackson could not remember whether Margaret or anyone else was in the room at the time, but said that, had they been in the room initially, he may have sent them out (preferring to see the patient alone).[143]

84 Dr Jackson said that the MMSE is designed to test several different areas of the higher mental functions, namely orientation (in time and place); registration (naming objects); attention and calculation; recall; language; and 'praxis' (meaning practice as distinct from theory, here involving the ability to deal with shapes and to draw figures).[144]

85 Dr Jackson was brought back to the 10 January 2012 MMSE several times in his evidence-in-chief and cross-examination. The aspects that most concerned him about Bernard's performance were that Bernard scored 0/5 for attention and calculation (on a test requiring Bernard to subtract a series of five 7s from 100);[145] that Bernard could not follow and carry out a written instruction to 'close your eyes';[146] and that Bernard did not adequately copy a diagram consisting of two intersecting pentagons. Dr Jackson expressed the view that 18/30 was an indication of 'significant dementia'.[147] On the other hand, Dr Jackson acknowledged that such a score might be associated with different cognitive or behavioural features for different patients, such as forgetting names or being unable to initiate conversations, or getting lost or forgetting to eat, or forgetting to attend to personal care. In Bernard's case, there was a 'significant loss of short term memory at this stage'.[148] Dr Jackson's concerns were heightened because Bernard and Margaret were a 'very accomplished, educated couple'.[149] He was also perturbed that Bernard had failed the 'praxis' test despite his prior experience as an architect. I interpolate that, to my eye, Bernard's attempt at reproducing the intersecting pentagons was not too bad; and that there is other evidence to that effect.[150]

86 In any event, after administering the MMSE on 10 January 2012, Dr Jackson decided to refer Bernard for more extensive testing at the McKellar Centre Memory Clinic, being part of the Cognitive, Dementia and Memory Service ('CDAMS') of Barwon Health, headquartered in Geelong. Dr Jackson did so by a letter dated 11 January 2012.[151] In the letter, Dr Jackson said, among other things, that Bernard 'recognises' that he is 'having difficulties with his memory (particularly for names)'; that Margaret is also aware of 'issues relating to language and numeracy'; that Bernard had scored 18/30 on the MMSE; and that 'there were alarming gaps in calculation and (for an architect) praxis'.

87 From time to time between 17 January 2012 and 21 March 2012, Bernard duly liaised with the Memory Clinic for interviews or testing, done or overseen principally by the abovementioned Ms Vivien George. As part of the process, Ms George undertook a visit to the Jansens' home and carried out some clinical testing there. In addition, Bernard attended the Warrnambool Clinic of CDAMS for a more detailed cognitive assessment. In April 2012, Bernard attended again at the Warrnambool Clinic for a review by the abovementioned Dr MacKenzie. As will be seen in a moment, the outcome of that process is largely covered by written reports that were made to Dr Jackson by Ms George and Dr MacKenzie respectively, although I will also need to refer in due course to the oral evidence that those two persons gave in this Court.

88 The report to Dr Jackson from Ms George is dated 21 March 2012.[152] The relevant parts of the report (for present purposes) are as follows:

Thank you for referring Bernard, a delightful 73 year old gentleman to the Memory Clinic. His assessment included a home visit by myself, and a more detailed cognitive assessment in the Warrnambool Clinic where a collateral history was obtained from Bernard's wife Margaret. I understand the referral was initiated by Margaret who has noticed a decline in her husband's language and numeracy.

Bernard is aware that he has difficulty with names and he is less confident when working with numbers, though he tends to minimise his difficulty.

His wife Margaret describes a five year history of gradual decline which she initially attributed to depression, although she now feels he experiences periods of sadness rather than persistent periods of lowered mood. More recently she has noticed he has marked short term memory difficulties. He perseverates on a theme or task, has word finding difficulties, and has difficulty exchanging currency. She is also aware that he is more repetitive and has difficulty keeping up with the day, date and time. Functionally, Bernard is reportedly managing well in the home environ with some prompts from Margaret. I understand that Bernard is currently driving, although Margaret commented that "we drive together", suggesting that Bernard requires assistance with directions.

...

Bernard lives at home with Margaret, a retired teacher, and they are keen to maintain their independent lifestyle. They do not have any formal home support services. According to Bernard, he continues to prepare his own breakfast and assists with the evening meal. Their main meal is prepared by Margaret at lunch time. I understand that Bernard is enjoying gardening and assists Margaret with the household tasks and to pay the bills. Bernard does drive and they have arranged financial and enduring power of attorney.

It seems that Margaret and Bernard are relatively active retirees attending Probis, bowling, movies, and church. Bernard visits two elderly ladies in the community and loves his gardening and lawn mowing. He used to be [a] potter.

On examination, Bernard was a delightful chap with a reactive, bubbly affect. He was poorly oriented to place and time and had difficulty giving his birth date, requiring a prompt to do so. His orientation score was 6/10. He had substantial difficulty with language comprehension and expression. On a Folstein Mini Mental he scored 16/30 and on the Cambridge Cognitive Examination he scored 42/107. (Well under the cut off guide line score for dementia which is 79/107). On a ten word list he recalled only 2/10 after three trials and Bernard could not remember the list at all with a delay. On a naming task there were substantial anomia. He could name only five of twelve articles.

It is planned that Bernard attend our next Warrnambool to be examined by our doctor, Dr Bronwyn Mackenzie but due to the results of his cognitive testing at this assessment we raised the issue of driving safety with both Margaret and Bernard. Bernard believes he is a competent driver however he humbly accepted our request that he not drive until this is discussed with Dr Bronwyn Mackenzie.

Thank you for providing details of Bernard's pathology and his CT scan. As mentioned we will keep you informed of the outcome of Bernard's assessment when he meets with Dr Bronwyn Mackenzie later in April.

89 This report did not contain a diagnosis because Ms George was not qualified to make a diagnosis.[153]

90 Next, in early May 2012, Dr Jackson received the report of Dr MacKenzie, which was dated 24 April 2012.[154] Dr MacKenzie's report reads:

I am just following up on the previous letter that [Vivien] George our clinical coordinator sent to you regarding Mr Bernard Jansen.

I reviewed Mr Jansen in the Warrnambool clinic on the 20th April. I discussed the results of his recent testing with Mr Jansen and his wife Margaret.

I told Mr Jansen that he did in fact have a diagnosis of Alzheimer's Dementia. He was initially extremely shocked with this diagnosis with quite a degree of denial. He tried to rationalise all the mistakes he had made in the previous testing but I pointed out to him that he had really major cognitive issues in many aspects of his brain functioning at the present time.

He eventually accepted his diagnosis and is agreeable to treatment. We discussed the pros and cons of him either taking a tablet form of a cholinesterase inhibitor or the skin patch form. As Mr Jansen is only taking Cartia he is quite keen to try a tablet form to start off with, therefore I would recommend trying either Aricept or Galatamine as per the enclosed proforma as they are a once daily medication and this would simplify things down for Bernard. If he develops gastrointestinal side effects from the oral form of the cholinesterase inhibitors I would then suggest changing him over to the Exelon patch.

In addition I also discussed with the [Jansens] that there is another medication that can help treat memory disorders called Ebixa as an add-on medication to the cholinesterase inhibitor. I normally recommend starting this after the person has been well stabilised for about five or six months on the cholinesterase inhibitor. I did tell the [Jansens] that this would have to be prescribed on a private script and they seemed amenable to this idea. Therefore please consider starting Mr Jansen on the Ebixa in about five or six months' time. It is worth trialling three Ebixa for 3 months to see if there is an improvement.

Mr Jansen is very keen to continue driving although he has not driven since we asked him to stop driving a month ago. I am therefore referring him to VicRoads for an occupational therapy driving assessment. This will take place in due course.

In addition we are also making a referral on his behalf to the Alzheimer's Association. Jason their local worker will make contact with the [Jansens] and come and visit them in their home.

In addition I have also suggested to Mrs Jansen that she will be eligible to apply for the Carers' allowance. She will need a medical section filled in by yourself to support her application at some stage in the future.

We will not be reviewing Mr Jansen but if you have any concerns please don't hesitate to contact our service.

91 On 8 May 2012, Dr Jackson saw Bernard again and, in accordance with Dr MacKenzie's recommendations, he prescribed Aricept for Bernard. Dr Jackson gave evidence that Aricept is used to try to arrest the progress of Alzheimer's dementia, not to reverse it.[155] By that he must have meant to refer to the underlying disease process, as distinct from the prospect of improved cognitive functioning. On referring to his progress notes for 22 June 2012, Dr Jackson noted that he had on that date administered another MMSE to Bernard. Dr Jackson said that he had done so because Aricept is expensive and the Commonwealth Government requires to see an improvement in the patient's MMSE to maintain funding for Aricept.[156] The completed pro forma for the MMSE of 22 June 2012 is in evidence.[157] As recorded, Bernard's total score was 19/30. (In fact, on my addition, the individual scores add up to 20, not 19.) In any event, I note that, on this occasion, Bernard's 'recall' score improved from 1/3 to 3/3; that he was able to follow and carry out the instruction to 'close your eyes'; and that he passed the praxis (pentagons) test. Dr Jackson's progress notes for 22 June 2012 state that the result represented an increase of three points. Presumably, this was calculated by reference to the score of 16/30 for the Folstein Mini-Mental mentioned in the report from Vivien George of 21 March 2012. Dr Jackson acknowledged under cross-examination that Bernard had improved cognitively between January and June 2012, and that the dementia drugs were 'certainly' a factor.[158]

92 Earlier, during examination-in-chief, Dr Jackson had described Bernard's performance on the praxis (pentagons) test, in particular, as a 'big improvement'.[159] In that context, I asked Dr Jackson about certain evidence that had previously been given by Dr Phillip Hall to the effect that the pentagons exercise was the only part, or at least the main part, of the MMSE that tested comprehension, and that Bernard's efforts in both tests (January 2012 and June 2012) indicated that he retained substantial ability to comprehend things.[160] Dr Jackson responded that the second test 'showed improvement' and that this was 'pleasing', but that there were also 'other areas'.[161] Dr Jackson was reluctant to accept Dr Hall's view that the pentagons exercise went to comprehension. Dr Jackson saw it, rather, as going to one's ability to manipulate objects or to see different shapes or to do things like putting a key in a lock. To my mind, however, the practical ability to do such things must involve comprehension, as Dr Hall believed.

93 Dr Jackson also said in his evidence-in-chief that, although there was some 'slight improvement' by June 2012 in Bernard's MMSE, Bernard would have had very large difficulties in understanding any 'complex concepts' or 'documents with minute details'.[162] He was then asked whether he recalled ever discussing with Bernard anything to do with changing his will. He said that he had no such recollection, and then added, spontaneously, that, if there had been such a discussion, Dr Jackson would have told Bernard that 'he did not have capacity to do it and that it was too late to even consider it'.[163] However, to the extent that Dr Jackson believed that all testators need to be able to understand 'complex concepts' and 'documents with minute details' in order to make a valid will, his comment was not based on a correct view of the law.F[164] And the very fact that Dr Jackson had had no discussions with Bernard about will-making, and did not see him professionally to assess his testamentary capacity, makes Dr Jackson's comment all the less compelling.

94 Dr Jackson's progress notes record further consultations with Bernard on 19 August 2012 (when a repeat of Aricept was prescribed) and on 19 December 2012 (when Bernard was noted to be 'stable' and 'driving' and was to be seen again in four months' time). Otherwise, nothing of present significance was noted. Bernard came in for a flu vaccine on 22 March 2013, and that was his last consultation with Dr Jackson. Again, nothing of present significance was recorded in relation to that visit and, in his evidence, Dr Jackson could not recall anything about that last visit.[165]

95 On 5 November 2018, about one year after Bernard died, Dr Jackson wrote a letter in response to a request from Taits, solicitors, for comment in relation to Bernard's testamentary capacity for the wills made on 9 May 2012 and 8 March 2013. So far as now relevant, Dr Jackson's letter reads:

Concerns were noted by [Mr Jansen's] previous medical attendant, Dr [van] Leerdam of Cobden in Sept 2008 regards his memory.

I have first noted issues regarding his cognitive capacity when raised by his wife Margaret on 21 December 2011. A Mini Mental State Examination on 10 January 2012 revealed a score of 18/30, indicating significant cognitive impairment. Subsequent assessment by the CDAMS team from the McKellar Centre in Geelong, 24 April 2012 confirmed a diagnosis of Alzheimers disease and he was told that "he had really major cognitive issues in many aspects of his brain functioning at the present time" i.e. 20 April 2012.

Based on the above chronology of the diagnosis of Alzheimers disease, I can say that he was significantly cognitively impaired at the times both wills were made.

It is my belief, based upon my own clinical assessment and that provided by the CDAMS team from Geelong, that Mr Jansen did not have testamentary capacity when he made the wills as detailed above. I do not believe that he had the capacity to understand basic legal concepts, what [assets] he owned and how they would be distributed and who would benefit from his wills. I believe that it would be apparent to a legal practitioner assisting him in this matter that he was cognitively impaired, i.e. suffering from dementia and that description of the document presented for signature by the legal practitioner would not increase his capacity as described above.

96 In his evidence-in-chief, Dr Jackson appeared to adopt the contents of this letter as continuing to represent his current opinion.[166] On the other hand, whereas it is stated in the last paragraph of the letter that Dr Jackson's opinion is based in part upon his 'own clinical assessment', he said in his evidence that the opinion was based upon the testing that he did and also on the letter from Dr MacKenzie of 24 April 2012.[167] I note that there is no reference in Dr Jackson's letter of 5 November 2018 to the MMSE test of 22 June 2012, or to the 'big improvement' in relation to praxis or to 'some improvement' in Bernard's short-term memory, both of which Dr Jackson acknowledged during his evidence.[168] I note also that, in cross-examination, Dr Jackson agreed that it was possible that Bernard was having 'a bad day' when Dr Jackson performed the MMSE on 10 January 2012.[169] Unlike Dr Hall, Dr Jackson was not prepared to make any allowance for the anxiety that Bernard may have felt while being tested without the comforting presence of his wife Margaret. In any event, as will be seen, the evidence of Dr MacKenzie, a specialist geriatrician, established to my satisfaction that the MMSE is a test of limited value. Dr MacKenzie also emphasised that nothing done by her or by the CDAMS team (including the letter of 24 April 2012) involved any assessment of Bernard's capacity, testamentary or otherwise. The work of the CDAMS team was purely diagnostic.

97 I note also that, as mentioned above, Dr Jackson's evidence-in-chief seemed to portray a mistaken understanding of the legal test for testamentary capacity. Insofar as Dr Jackson implied in his evidence that his opinion remained as stated in his letter of 5 November 2018, namely that Mr Jansen did not have 'the capacity to understand basic legal concepts, what assets he owned and how they would be distributed and who would benefit from his wills', I am not satisfied that Dr Jackson had an adequate basis for forming such an opinion. My own conclusion as to Bernard's capacity, based on all of the evidence before me, is to the contrary, as I have explained and will further explain.

98 At the time of the hearing, Dr Bronwyn MacKenzie was practising as a highly qualified specialist in geriatric medicine. She conducted her practice at the McKellar Centre, and had done so for over 30 years, including 25 years with CDAMS. She also worked in the age care assessment service, as the senior consultant.

99 She began by giving general evidence about various kinds of dementia, and particularly about Alzheimer's dementia,[170] and about CDAMS' diagnostic processes.[171] In that context, she referred to MMSE tests as 'fairly unsophisticated'.[172] She said that the MMSE had largely been replaced by more sophisticated tests in diagnostic practice, save that, as Dr Jackson had said, the Commonwealth pharmaceutical benefits authorities still required the MMSE to be used for their purposes. Accordingly, it was mainly GPs who used the MMSE.[173]

100 Dr MacKenzie was then asked to describe the MMSE test and to comment on its use. She began by observing that it is 'relatively useful'.[174] It was a 'very broad, simple test' and quick to administer, but her organisation did not take notice, in most circumstances, of the absolute numerical score. On the other hand, if someone performed quite poorly ('anything under about 22, 24'), that indicated a 'marked problem or impairment'.[175]

101 Dr MacKenzie had no independent memory at all of Mr Jansen, or of preparing her report of 24 April 2012.[176] Taken to that report, which is set out above, she said that it was referring to the tests done by Ms George, not Dr Jackson's tests, as the ones that she had discussed with Mr Jansen.

102 Dr MacKenzie commented that, judging by the results of Ms George's tests, Mr Jansen had 'performed extremely poorly in virtually almost everything'. However, she immediately said that this view took into consideration that Mr Jansen had 'an extremely high previous pre-morbid intellectual ability and had performed very highly in life'.[177] She said that it was 'quite obvious that he was severely cognitively impaired, even on a very simple screening tool like this'.[178]

103 Asked about what discussions she would have had with Mr Jansen, Dr MacKenzie said that, Mr Jansen having been 'extremely shocked' at the diagnosis, she would have turned fairly quickly to offer hope and to talk about treatment options, and in particular medication options, that might help improve his memory. She would also have spoken to Mr Jansen about his driving and about referring him to VicRoads for a driving assessment.[179]

104 Dr MacKenzie said that the Memory Clinic's tests on a person are done in the absence of any carer or other person. It would have been highly unlikely that Margaret Jansen would have been present during the testing.[180]

105 Next, Dr MacKenzie was taken to the results of the more sophisticated Cambridge test that had been done by Ms George. Mr Jansen had scored 42/107. A score below 79 was regarded as a significant cognitive impairment. Mr Jansen had scored 'very poorly' on that.

106 The Clinic's records indicated that there would have been a case conference with the Clinic's senior geriatrician and senior neuropsychologist, as well as with the nurses involved, before the assessment of Mr Jansen was finalised and the report written.[181]

107 By reference to the test results, Dr MacKenzie was asked to what extent Mr Jansen would have been able to understand complex tasks as at the time of the tests. Dr MacKenzie's answer was as follows:

That's a difficult question to answer because I can see from, for instance, the mini-mental exam that we referred to earlier that he couldn't fully follow a three-staged command which is a relatively simple task to ask someone to perform. So if you are referring to the possibility of someone's capacity, I can make no comment about that because I did not do an assessment for capacity. I did not do that at all. All I can comment on on the results of the tests that we can see is I can see that Mr Jansen had a quite marked global, as in right across most of his domains of cognition, cognitive impairment.

108 Dr MacKenzie then said, in response to a question from me, that the Memory Clinic was a purely diagnostic clinic and that it was funded to have only three functions - (i) to determine whether someone has dementia or not; (ii) if the person does, to determine what type of dementia it is; and (iii) to determine the appropriate treatment options for the person. And she confirmed that that was what the Memory Clinic was doing in Mr Jansen's case. Dr MacKenzie added that the Clinic does not put people in categories like mild, moderate or severe. That had been found to be unhelpful. Sometimes, it might be said that a person has got, perhaps, early dementia or severe dementia, but the Clinic did not routinely grade people.[182]

109 Notwithstanding, Marina's counsel then asked Dr MacKenzie for her opinion as to the 'level' of Mr Jansen's Alzheimer's dementia. Dr MacKenzie responded to the effect that Mr Jansen was 'fairly well down the track'. She said that future progress of Alzheimer's sufferers was hard to predict. But Dr MacKenzie emphasised (by further repetition) that, pre-morbidly, Mr Jansen had been an extremely high functioning individual. With that starting point, Mr Jansen was 'a long way down the track in his degree of dementia'. He was performing very poorly 'compared to how you would've expected him to have performed in his pre-morbid personality'.[183]

110 The term that the Clinic uses in such cases is that the person has 'come off a very high base'.[184] I then had the following exchange with Dr MacKenzie:[185]

Does that mean, though, that they have got the benefit of coming from a high base and therefore would perhaps be able to function better than someone who comes from a low base and descends further?---Yes. Just anecdotally, generally people who are very high intellectually functioning pre-morbidly, one, they do have a lower incidence often of developing Alzheimer's but it's not completely protective, but what we do see anecdotally is that people who perform very high, their brain holds it together often for a lot longer. They seem to have compensatory mechanisms going on in their brain so they might have the actual pathology going on in their brain of Alzheimer's disease but clinically you are not seeing it and then they will suddenly or relatively suddenly really decline, relatively rapidly compared to someone of perhaps a lower intellect and they will just have a slower gradual decline over time compared to a much higher functioning individual. That's often the road that you would see with these certain people, pathway.

Yes, but my question is if you are someone who was very smart and very clever, but you are suffering from Alzheimer's, do you still have the benefit that you are at least someone who started off very smart and very clever and for a while at least you are going to be able to take advantage of that?---Perhaps. Everyone is just subtly different. I'm sorry, I can't generalise. Everyone is different.

Right?---And also with Alzheimer's sometimes people might have mainly memory problems or they might have mainly language problems, or they may have mainly calculation and numeracy problems. Everyone is just different.

Yes. So their problems could be in specific areas only?---Exactly. Exactly right, correct.

111 Dr MacKenzie then said that a rapid decline might be precipitated by something like a tragic event or major surgery.[186]

112 In answer to a question from Marina's counsel, Dr MacKenzie then said that the loss of a carer or partner could have an impact. She said that people with dementia of any type, particularly Alzheimer's, need routine, and often what keeps the person orientated and functioning reasonably well is having routine and recognisable people around them that they depend on.[187]

113 That led me to invite Dr MacKenzie to comment on the evidence earlier given by Dr Hall that he felt that Mr Jansen was much more at ease and much more likely to perform better on tests, and generally, if his wife Margaret was with him. More particularly, I asked Dr MacKenzie whether it was possible that Mr Jansen would have done better had he been less anxious because his carer was with him. Dr MacKenzie's response was to say, 'No, not necessarily. Look, there's many things that can affect testing but it's just - normally it would only be the difference of one or two points, not in this case 15 points. It wouldn't have that significant a difference'. Dr MacKenzie went on to say that a high level of anxiety may indicate someone who is a bit further down the track in their dementia; that to get agitated or anxious is a very common symptom with dementia as it progresses; and that the person feels calmer if there is someone that they recognise near them.[188]

114 Turning to the effect of medication, Dr MacKenzie said that there were no miracle drugs to treat Alzheimer's disease. She explained that drugs like Aricept increase a certain chemical in the brain, and in some people that helps improve memory -

... and at best you can hope that the memory might go back to what it was perhaps two years earlier but it's not going to be miraculous. It just might mean that the person doesn't need quite as many prompts to remember things. They just remember things a little bit easier. But there's nothing miraculous about it, unfortunately, and it doesn't stop the progression of the disease either. That continues on underneath it.

115 In cross-examination, counsel for the plaintiffs took Dr MacKenzie back to the question whether having a trusted person around could improve performance on the tests. Dr MacKenzie replied that it might, but that it would be fairly marginal.[189]

116 The cross-examiner then took Dr MacKenzie to a document in the Court Book that included a scale that indicated that a score of around 20 on the MMSE would represent 'mild' cognitive impairment. Dr MacKenzie responded that the terms in the printed scale were not used anymore; and that they were 'really old school'. She said that the Clinic would hardly ever make a diagnosis of mild cognitive impairment these days because knowledge had improved so much and 'mild' cognitive impairment is just not a diagnosis. The Clinic was much more likely (with all the tools at its disposal) to refer to an 'early' Alzheimer's diagnosis rather than a mild cognitive impairment. Assessors just did not do that diagnosis anymore. The person either has early Alzheimer's or they do not.[190]

117 The cross-examiner then took Dr MacKenzie to the MMSE performed by Dr Jackson in June 2012. She agreed that one could see that the copying of the pentagons had improved; that the writing of the sentence was good; and that Mr Jansen was able, on demand, to close his eyes. Thus, he had followed two out of three parts of the three stage command. Dr MacKenzie was informed that this happened after the Aricept treatment was started. She was asked whether it was possible that the treatment had had a positive effect. Her response was that people often improve two or three points on drugs like Aricept. She continued: 'I looked at that and I thought excellent, this treatment is working'. She also said that Mr Jansen had 'definitely' improved on the June 2012 MMSE.[191]

118 Dr MacKenzie was then told that Mr Jansen had passed the driving test for which the Memory Clinic had referred him. She commented that she was not surprised that Mr Jansen had passed that test. She said it was quite common for people with dementia to still be able to drive.

119 In re-examination, Dr MacKenzie said that after improving with medication like Aricept, most persons with Alzheimer's disease would nevertheless gradually deteriorate at about the same rate, but from a slightly higher level. She said that the medication often helps with functioning so that, for example, the person does not require quite as much prompting with activities of daily living.

120 In final submissions, Marina's counsel relied very heavily on Dr MacKenzie's evidence. It is true that Dr MacKenzie's evidence supports the view that, in April 2012, Bernard had 'really major cognitive issues' in 'many' (though not all) aspects of his brain functioning. On the other hand, Dr MacKenzie's evidence also indicates that Bernard was coming off a 'high base', and that this may have benefited Bernard in some aspects of his cognitive functioning. Dr MacKenzie's evidence also confirms that Bernard improved after Aricept was prescribed for him in May 2012. In addition, her evidence contains support for the propositions that many Alzheimer's sufferers function better cognitively when in the presence of carers or partners and that this would have been true for Bernard. Taking those matters into account, and taking into account that neither the Memory Clinic nor Dr MacKenzie purported to assess Bernard's testamentary capacity, Dr MacKenzie's evidence does not, either of itself or in combination with other evidence, establish that Mr Jansen did not have testamentary capacity, or the ability to know and approve the contents of a will, in May 2012 or March 2013. Dr MacKenzie's evidence certainly confirms that there are concerns about Mr Jansen's abilities, but, in my view, as already mentioned, those concerns are overcome by the evidence as a whole.

121 Ms Vivien George is a retired registered general nurse. She has an additional certificate in psychiatric nursing and a graduate diploma in gerontology. In 2012, she was the coordinator of the Memory Clinic at Barwon Health. She was at the Memory Clinic for about 15 years between 2004 and 2019. At least 70 per cent of her work involved clinical assessments of patients with early signs of dementia. Nearly all of those patients had been referred by their GPs.[192]

122 Ms George explained the processes that were used at the Clinic to assess patients. This often meant involving a partner or carer. Ms George would try to establish a rapport with the patient at the outset. She would usually make a home visit, and endeavour to carry out some clinical testing in the less threatening environment of the patient's home.[193]

123 Ms George had a patchy recall of working with the Jansens. She was permitted to refer to the clinical progress notes of the Memory Clinic.[194] Ms George herself had made some of those notes. Others had been made by another registered nurse with long and senior experience in dementia assessment, namely Sheila Ryan.

124 Initially, with Bernard's agreement, Ms George had made telephone contact with Margaret as well as with Bernard. This occurred in January 2012. Ms George had separate telephone conversations with each of Bernard and Margaret. The notes do not record that Ms George had any difficulty in communicating with Bernard alone on the telephone, and this indicated to Ms George that she probably did not have any such difficulty.[195]

125 The progress notes also show that on 20 March 2012 Ms George, alone, went to the Jansens' home for a visit. At the beginning, she spoke to Mr and Mrs Jansen together. When she began to test Mr Jansen, Margaret left the room.[196] This home visit took longer than usual because Mr Jansen had difficulty with communication and Ms George had to re-explain things and take her time. There is a note to the effect that Mr Jansen was vague in giving the history of his family; that he tended to go off the task and was distracted in giving that history.[197] However, contrary to the final written submissions of counsel for Marina,[198] Ms George did not, in her oral evidence, say 'that she recalled Mr Jansen not being able to give the history of his family'. Rather, in this respect, Ms George did no more than adopt the entry in the progress notes to the effect that Mr Jansen was 'vague in giving the history of his family' and that he tended to talk 'off the task' and 'was distracted in giving the history'.[199]

126 It is true, as Marina's counsel submits,[200] that Ms George's notes of the pre-clinical assessment of Mr Jansen revealed a patient who presented in the following ways:

(a) vague, blank expression at times;

(b) cooperative, friendly;

(c) over-inclusive speech;

(d) speech muddled at times;

(e) anomia (forgetting the names of articles);

(f) word-finding difficulty;

(g) very focused on past, work, early life.

Ms George said that a patient with those presentations would have 'significant cognitive impairment, significant cognitive difficulty'.[201]

127 Asked to expand on that last answer, Ms George said:

This gentleman was having difficulty following a conversation. He was unable to give his past history.[202] I had to work really hard at making sure that he understood me. He had lost his ability - his language ability. "Receptive and expressive dysphasia". He was having difficulty in expressing his speech in saying what he wanted to say and he was having difficulty understanding what I was having to say. He seemed to be making up information when I was asking him questions. So I was obviously aware of the answers to the questions that I was asking and I was getting incorrect answers.

He was filling spaces with going back to information that he felt comfortable in giving, the past life. If patients are having memory difficulties, it's usually recent information that they are forgetting and they feel very comfortable in just giving you information in their past life and that was Mr Jansen. He was having word-finding difficulties so he was stuttering and stammering when he was speaking with me, yes.

Ms George said that this was the same whether Margaret Jansen was in the room or had left the room.[203]

128 Ms George also gave more details about the mini-mental test and the Cambridge test that she had administered to Bernard.[204]

129 As indicated above, Ms George gave evidence to the effect that she was not qualified to give a diagnosis on a patient.[205]

130 The only other part of Ms George's oral evidence on which Marina's counsel relied in her closing submissions was Ms George's elaboration on the particular parts of her mini-mental test that Bernard had not passed. One was the pentagons test, and another was the recall test.[206] However, I note again that Bernard's performance on the corresponding parts of the MMSE test administered by Dr Jackson in June 2012 (after the commencement of Aricept) was substantially improved.

131 Marina's counsel also contended in her final written submissions that the clinical progress notes that Ms George had made were consistent with Ms George's letter to Dr Jackson dated 21 March 2012. So much may be accepted.

132 At the conclusion of Ms George's examination-in-chief, I asked her to comment on another Barwon Health document that is contained in the Court Book.[207] The document is headed 'Clinical Dementia Rating (CDR) CDAMS Diagnostic'. It is a proforma document which, as Ms George confirmed, was completed on 21 March 2012 by Ms George's former colleague, Sheila Ryan (the other registered nurse mentioned above). The information in the completed form was based on discussions between Sheila Ryan and Margaret Jansen, as Bernard's partner or carer, that occurred at the Warrnambool clinic on 21 March 2012. The form requires the officer to rate the level of impairment of the patient (as reported by the partner or carer) across six fields, namely, memory, orientation, judgment and problem solving, community affairs, home and hobbies, and personal care. The form provides for five different levels of impairment, namely, none (0), questionable (.5), mild (1), moderate (2) and severe (3). In each of the 30 (6 x 5) squares in the form, there is a pre-typed description and provision for a box to be ticked if applicable. In the present case, the completed form paints a picture of a person with a fairly low level of cognitive impairment. While there is no tick in any of the 'none (0)' columns, there are three ticks in the 'questionable (.5)' column and three ticks in the 'mild (1)' column. The ticked squares are as follows:

• For memory: mild (1): 'Moderate memory loss; more marked for recent events; defect interferes with everyday activities'.

• For orientation: questionable (.5): 'Fully orientated except for slight difficulty with time relationships'.

• For judgment and problem solving: mild (1): 'Moderate difficulty in handling problems, similarities, and differences; social judgment usually maintained'.

• For community affairs: questionable (.5): 'Slight impairment in these activities'.

• For home and hobbies: mild (1): 'Mild but definite impairment of function at home; more difficult chores abandoned; more complicated hobbies and interests abandoned'.

• For personal care: questionable (.5): 'Fully capable of self-care'.

At the foot of the document, the CDR (Clinical Dementia Rating) is given as '1-2 mild-mod'.

133 Ms George explained that, when making a diagnosis of dementia, the Clinic needs to see evidence that the impairment is impacting on day to day functioning; and so the carer 'is an important factor'.[208] The form is based entirely on carer feedback.[209]

134 In cross-examination, the plaintiffs' counsel asked Ms George some questions about this document. Ms George confirmed that the completed document is based on the observations of the main carer of the person. She also said that the form was filled in after a 'solid one on one interview'.[210] A detailed questionnaire was also sometimes used, together with open discussion.[211]

135 Ms George was asked about Ms Ryan's recorded CDR of '1-2 mild-mod'. Ms George said that that means (or should mean) mild to moderate functional difficulty. She also said that, because there were no ticks in column number 2 or column number 3, if Ms George had been doing the final score, she would have given a CDR of 0.5 to 1, mild. On the other hand, Ms George speculated that Ms Ryan may have thought that Margaret was understating the difficulties.[212]

136 At another point of the cross-examination, Ms George was asked to comment on Bernard's improved showing on Dr Jackson's MMSE of June 2012. Ms George acknowledged that there had been improvement. Asked whether, based on her clinical experience, she could give any reasons for such improvement, she said:

Sometimes I can. Now, I think I would have to look at - compare the two sheets. For example, a patient may - if he is uncomfortable with the testing I would feel he would test poorer, get a worse score if the person was more anxious. There could be lots of reasons. If he hadn't slept well the night before he might test worse, a few points worse. So there's four points difference there. Some types of dementia can fluctuate and that can be clinically important. That might have been at a better time of day. Some people would be a lot worse in the afternoon. I've tested patients early in the morning and then late in the afternoon and there can be a five point difference on their mini-mental. So there can be a variety of differences, yes, a variety of reasons why.[213]

137 Ms George was then asked whether the improvement might be related to Bernard having started on dementia medication. She replied:

Well, that would be pleasing to see, that there was a two point increase or a few points increase on a mini-mental examination. From my experience the medication can help. One of the first symptoms that seems to respond is settling the anxiety associated with memory difficulties. So if he's less anxious, yes, he may - yes, I mean, that would be a positive. I think they do look for a couple of points improving after starting the medication.

138 Counsel also asked Ms George whether she noticed a difference in Mr Jansen when Margaret was present. For example, whether he was more relaxed in Margaret's presence. Her answer was:

I'm not sure if he was more relaxed but he seemed relaxed overall for the whole - yes. I felt - I don't know if he was more relaxed but he was not more agitated and I had a positive feeling about the couple.[214] So when she was in the room I had a positive feeling but still, when I was testing him I still felt better if she was out of the room, just because generally I don't like an audience when a patient is being confronted by severe difficulties, cognitive difficulties, yes. It is quite confronting if they have got an audience. It is easier to do it for them if they are doing it one on one. I don't always ask the carer [to] leave the room but in that situation, yes, I think it was better if Margaret was out of the room for Bernard's benefit.

139 Again, there is something for both sides in Vivien George's evidence. She said that Bernard had 'significant cognitive impairment'. On the other hand, when given the opportunity, she did not describe Bernard's cognitive difficulties as 'major' or 'global'. She said that Bernard had difficulty following a conversation, and that she had to 'work really hard' at making sure that he understood her. However, it seems that she was saying that, eventually, Bernard did understand her, at least to a substantial extent. Separately, Ms George's evidence indicates that Margaret told Sheila Ryan, in effect, that, in Margaret's view, Bernard's cognitive difficulties were only mild. Ms George also confirmed that medication like Aricept can improve functioning. And her evidence supports the view that Bernard did better cognitively with Margaret present. All of these things go into the mix.

140 At the time of the hearing, Ms Gayle Dwyer was an assessment clinician employed by the Aged Care Assessment Service ('ACAS') of the Commonwealth of Australia. She was based at Lyndoch Living in Warrnambool.

141 Between about 19 September 2013 and 23 September 2013, Ms Dwyer had carried out an assessment of Bernard Jansen as to his eligibility for Commonwealth support for 'respite care' under the Aged Care Act 1997 (Cth). Between late February 2014 and early March 2014, Ms Dwyer assessed Bernard again, this time for eligibility for Commonwealth support for permanent residential care.

142 Ms Dwyer was subpoenaed by Marina's legal representatives to give evidence in this matter and to produce the relevant files of ACAS. She had no memory at all of the Jansens, even after seeing the relevant ACAS files for the purpose of the hearing.

143 ACAS file notes made by Ms Dwyer and now included in the Combined Court Book show that, on 19 September 2013, Ms Dwyer spoke by telephone to Margaret Jansen about Bernard; and that, on 23 September 2013, Ms Dwyer interviewed both Bernard and Margaret together at their home, and completed her assessment at the same time. I accept the uncontradicted submission made by Marina's counsel in her final written submissions that the following matters emerged from Ms Dwyer's notes of her conversations with Margaret and Bernard in September 2013:[215]

(a) That Mr Jansen was a 75 year old man [who] lived with his wife Margaret in their own home;

(b) Mr Jansen was diagnosed [with] Alzheimer's disease by CDAMS in early 2012;

(c) He had short term memory issues and required directions to complete some tasks, and he had short term memory issues with remembering dates [and] times with notes to prompt;

(d) His main carer was his wife who had her own health issues;

(e) Mr Jansen and his wife had been managing well without support from services;[216]

(f) There are difficulties with accessing services or activities for Mr Jansen due to his reliance on his wife and not wishing to be apart from her;

(g) There might be need for residential respite if Mrs Jansen is unwell or at risk of carer fatigue;

(h) Mr Jansen was recommended for low level respite;[217]

(i) It was Mrs Jansen that told Ms Dwyer that her husband was diagnosed with Alzheimer's disease early in 2012;

(j) Mr Jansen didn't like to discuss his condition and if it was mentioned he would shut off and not answer any questions;

(k) Mr Jansen did not have any insight into his memory issues;

(l) Mrs Jansen needs to be with him at all times and he feels people are talking about him and has some paranoia;

(m) Mr Jansen does not suffer from hallucinations or wandering; and

(n) His conversation can be focused on [the] same issue and his mood is occasionally lower and he feels on his own; and

(o) When Mrs Jansen is in hospital he has his main meals with her there or he goes to Subway or McDonald's with written orders for him for both.[218]

144 I also accept the uncontradicted submissions of the plaintiffs' counsel in his final written submissions to the effect that:[219]

• Mr Jansen executed the consent form to the ACAS assessment himself, which suggests he was capable of giving consent at that time (19 September 2013).
• The assessment in September 2013 suggests that Bernard was able to handle his own money with some help.[220]
• The cognitive behaviour section of the ACAS assessment from September 2013 suggests that Bernard had regular issues with short term memory, but only occasional confusion and disorientation as to time, place and people.[221]
• The overall assessment of Bernard in September 2013 was that he was suitable for low level care which suggests that he was able to live at home relatively independently and he did not need a great deal of assistance.[222]

145 In their final written submissions, neither party sought to make anything of the ACAS documents relating to the 2014 assessment of Mr Jansen. However, I note that, under cross-examination, Ms Dwyer accepted that her notes of the 2014 assessment process indicate that, even at that late stage, 'Mr Jansen understood what was being said if you spoke slowly and clearly'.

146 On balance, the documents produced by Ms Dwyer, and her oral evidence, are of greater assistance to the plaintiffs than to Marina in this matter.

147 At the time of the hearing, Dr Phillip Hall was a general practitioner in Warrnambool. He was Bernard Jansen's principal GP from 14 May 2013 until Bernard's death on 16 November 2017. Dr Hall worked in a practice with other GPs and allied health professionals. A copy of the electronic file relating to Bernard kept by the practice is in evidence.[223] Bernard had first come to the medical practice on 27 March 2013. On that day, Bernard was seen by a different doctor. However, according to the file, Dr Hall himself saw Bernard on 21 occasions between 14 May 2013 and 19 October 2016.

148 I was very impressed with Dr Hall's evidence and with the manner in which he gave it.

149 Dr Hall's evidence was summarised by counsel for the plaintiffs in his closing written submissions in a way that attracted no criticism from Marina's counsel. The summary is comprehensive and fair. Indeed I cannot improve on it, and so I will simply quote it (with the footnotes modified and renumbered):[224]

132. Dr Phillip Hall was Bernard's GP from 14 May 2013 until his death.

1. He has been practising for 35 years in Warrnambool in obstetrics, anaesthetics, sports medicine and general practice. Dr Hall has extensive experience with dementia patients.[225] Dr Hall was also on the aged care psychiatric committee for the South West Healthcare Hospital and the chief medical officer for Lyndoch Aged Care Facility.[226]

2. Prior to Dr Hall's first meeting with Bernard, Dr Hall had received and reviewed Bernard's medical history (including the cognitive testing that was performed at CDAMS in Geelong) and was aware that he had been diagnosed with Alzheimer's dementia.[227] Dr Hall's evidence was that Bernard's dementia primarily involved short-term memory issues.[228]

3. Dr Hall recalled the following matters from his first consultation with Bernard on 14 May 2013:

(a) Bernard looked very well;[229]

(b) he was remarkably fit;[230]

(c) he was very pleasant and polite;[231]

(d) he interacted very very well;[232]

(e) Dr Hall spoke with Bernard about his Alzheimer's dementia;[233]

(f) Dr Hall was surprised that Bernard had been diagnosed with dementia in 2012;[234]

(g) Bernard spoke about his career as a high level architect and his past with real passion;[235]

(h) Bernard was very comfortable in the presence of Margaret and they seemed to form a very strong team;[236]

(i) Margaret assisted Bernard by prompting him for some things, and then Bernard would follow through with the discussion;[237]

(j) Bernard spoke about half of the time in the meeting;[238]

(k) Bernard had issues with his short term memory;[239] and

(l) Bernard was living by himself for significant periods of time during Margaret's hospital stays.[240]

1. Dr Hall took contemporaneous file notes during his first and subsequent consultations with Bernard.

2. Dr Hall's other evidence was that:

(a) from May 2012, Bernard was taking dementia specific drugs (Aricept) designed to improve and/or preserve his (cognitive) functioning;[241]

(b) on 14 May 2013, his consult with Bernard went for 20 minutes and 14 seconds;[242]

(c) he assessed Bernard's cognitive function during the consult on 14 May 2013;[243]

(d) Bernard's confidence and abilities were markedly greater when Margaret was in close proximity;[244]

(e) Bernard was more relaxed, more confident, and more socially interactive when he was with Margaret;[245]

(f) on 9 July 2013, he noted that Bernard manages well on his own at home;[246]

(g) on 9 July 2013, he noted that Bernard was walking a kilometre each day;[247]

(h) in January 2014, Bernard was still driving after being assessed by an Occupational Therapist (Jane Reynolds) on 30 August 2012;[248]

(i) the fact that Bernard passed his driving assessment from Jane Reynolds suggested to Dr Hall that on 30 August 2012 his executive functioning was still at a high level;[249]

(j) on 20 March 2014, Jane Reynolds assessed Bernard as being unsafe to drive;[250] and

(k) in March 2014[251] Bernard and Margaret moved into residential aged care at the Mercy Place.[252]

1. In answer to the question on whether a MMSE would be any use generally speaking in relation to assessing ability to properly make a Will, Dr Hall answered as follows:

I think it's useful again as a tool. It gives - it gives you a guide. As I say there are a lot of variables associated with the testing, um, and I've got to say especially with Bernard with - or a dementia patient in a situation where they're anxious, they may perform poorly at that exam. If as I say with Bernard if Margaret was present you would expect his performance to improve, and - but there is aspects of the test, for example the pentagon test which is one of the last tests on the Mini-Mental State is a test of comprehension with drawing overlapping pentagons, and that - that is a test of - it will give you some guide as to whether the patient has some - has intact or certainly some preservation of comprehension. So the earlier tests and questions on a Mini-Mental State are more to do with short term memories. The later ones are more to do with comprehension. So again they're a guide. They're not an absolute, but they're a guide.[253]

1. With respect to the MMSE performed on Bernard on 22 June 2012 by Dr Neil Jackson,[254] and in particular the significance of the pentagon drawing, Dr Hall said:

It's part of the mini mental state examination which looks at comprehension, so the first parts in terms of orientation, in terms of recall, um, and then goes on to language, practice and then, um, and then comprehension which is close your eyes, um, writing a sentence, um, and then the pentagon, overlapping pentagons, reproducing that, and that is often a, um, were the downfall of - in dementia testing comes with that ability, it is quite a sensitive test for comprehension. Um, so, um, as I say, that does not indicate to me that - from this test, even though it is a lower score, as I say we don't know the circumstances it was done in, what state he was in, whether he was agitated, whether Margaret was beside him, um, making him feel a bit more comfortable and a bit more confident. Um, but certainly in spite of that, um, the fact that the earlier test indicated more his short term memory issues, the later part of the test which is more positive, tends to indicate his - he has some degree of preserved comprehension and that would be in keeping with his ability to drive, his ability to manage by himself when Margaret was on prolonged stays in hospital, um, and this test as well, and that would be in keeping with my - my views of his first visit back in May 2013.[255]

1. After comparing the three MMSE's performed on Bernard on 10 January 2012, 20 March 2012 and 22 June 2012 Dr Hall said that:

...yeah, there have been three tests in that period of time and, um, again it tends to indicate the comprehension part of the test has been preserved on each of those occasions. So that's a consistent result over the three, three testing episodes, events, by different people in different situations and he's had a consistently, um, preserved or evidence of preserved comprehension on each of those tests. Certainly his recall and his short-term memory is poor but he excels in the, on the testing in comprehension.[256]

1. Dr Hall opined that Bernard possessed testamentary capacity in May 2013, March 2013 and May 2012.[257] Dr Hall based his opinion as to capacity on his observations of Bernard in May 2013 and the following matters:[258]

(a) Bernard presented very well;

(b) his discussion with Bernard was quite animated and his long term recall was intact;

(c) he was able to recall his days as an architect;

(d) Bernard had passed his driving test in August 2012 which suggested that he was performing well with executive functions, anticipation, etc;

(e) the comprehension part of Bernard's MMSE suggested that his comprehension was relatively preserved (although it showed his short term memory was deteriorating);

(f) Bernard went on to live independently for long periods of time while his wife was away, was off sick; and

(g) the fact that Bernard could drive the car without major accidents or getting lost, suggests that the comprehension was intact.

1. With respect to the specific elements of the Banks v Goodfellow test, Dr Hall opined that in March 2013, Bernard (in the presence of Margaret):

(a) would have been aware of his assets;[259]

(b) would have known about his family members;[260] and

(c) would have known what a Will was and what its effects were.[261]

1. Dr Hall also said that in general capacity declines over time with dementia, so Bernard's capacity would have been better before he met him in May 2013.[262] This suggests that in March 2013 and in May 2012 Bernard's capacity would have been better than in May 2013.
2. With respect to Margaret's positive effect on Bernard's capacity, Dr Hall said:

I believe without Margaret present his performance would have - and his ability to comprehend and - because of his anxiety I think that would have been - his performance would have been much worse. So, yes, I believe that Margaret's presence would have been a key to his understanding and comprehension and decision-making process.[263]

1. With respect to the specific elements of the Banks v Goodfellow test, Dr Hall opined that in May 2012, Bernard (in the presence of Margaret):

   (a) would have been aware of his assets (and in a better position than in March 2013);[264]

   (b) would have known about his family members;[265] and

   (c) would have known what a Will was.[266]

2. Dr Hall also said that in general capacity declines over time with dementia, so Bernard's capacity would have been better before he met him in May 2013.[267] This suggests that in March 2013 and in May 2012 Bernard's capacity would have been better than in May 2013.

3. Dr Hall's view on the September 2013 ACAS assessment was that:

   (a) the result of the ACAS assessment was 'as good an ACAS assessment as you can get';[268] and

   (b) in December 2013 Bernard retained the ability to cope by himself when Margaret was in hospital, notwithstanding his dementia.[269]

4. On 9 February 2018, Dr Hall sworn an affidavit in this proceeding confirming that in his opinion, Bernard had capacity to make a Will in March 2013.[270]

5. On 11 February 2018, Dr Hall wrote a letter to Taits Legal that said that in his opinion, Bernard had capacity to make a Will in March 2013.[271]

150 While not criticising the plaintiffs' counsel's summary of Dr Hall's evidence, counsel for Marina made submissions about the weight to be given to that evidence.[272]

151 Marina's counsel pointed out that Dr Hall had had no contact with Mr Jansen until after the 2013 will was signed.[273] However, on Marina's own case, Alzheimer's disease is progressive. All else being equal, Bernard should have been even better before he first saw Dr Hall, as Dr Hall himself testified.

152 Further, Marina's counsel sought to rely on the fact that Dr Hall did not conduct any diagnostic testing himself.[274] I see little or no significance in that. Dr Hall accepted that the MMSE test was a useful tool or guide. He was not critical of the processes that had been adopted by those who had tested Mr Jansen, although he observed that Bernard might have scored better had Margaret been present during the testing. Indeed, Dr Hall considered that the test results that he saw supported his view that Bernard had retained a substantial capacity for comprehension, a view that he thought was supported by several other matters that he nominated, as indicated above. While Dr Hall did not himself administer any formal test of Bernard's cognitive ability, Dr Hall did have a very lengthy first consultation with Bernard and Margaret on 14 May 2013, and he went on to see Bernard on another 20 occasions, far more often than Dr Jackson or the CDAMS staff had seen Bernard.

153 Marina's counsel sought to make something of Dr Hall's evidence that he was surprised about Mr Jansen's diagnosis of Alzheimer's disease.[275] I cannot see how that surprise assists her case.

154 Marina's counsel describes Dr Hall's affidavit of 9 February 2018 and his letter to Taits of 11 February 2018 as formulaic and legalistic.[276] They may be. But they accurately expressed Dr Hall's conclusions, and Dr Hall amply explained the basis and reasons for his conclusions in his oral evidence.

155 Counsel for Marina baldly submits that the matters relied on by Dr Hall as listed in paragraph 141 and following of the plaintiffs' closing written submissions (set out above) are not persuasive on the question of whether or not Mr Jansen possessed testamentary capacity at the relevant time.[277] I disagree.

156 Finally, Marina's counsel seeks to contrast Dr Hall's evidence with that of Dr Jackson and Dr MacKenzie, including their written reports, saying that they are 'based on scientific and medical explanations'. However, in my view, there was nothing unscientific or non-medical about Dr Hall's evidence. He was well aware of the testing that had been done by others. I have already dealt with the specifics of Dr Jackson's evidence and Dr MacKenzie's evidence.

157 Before I come to the evidence of the two remaining witnesses, Mr Tait and Mr McCulloch of Taits Legal, it is desirable to refer to the history of the Jansens' will-making and to the main terms of the wills made by the Jansens over the years since 1996, including in 2012 and 2013. There is no dispute about the general will-making history. The following account is based mainly on the plaintiffs' written outline of opening submissions.[278]

158 As mentioned above, at least five of the six wills prepared by Taits for Mr Jansen since 1996 were mirror wills, in that the wills were virtually identical to wills prepared at the same time for Mrs Jansen.[279] Mr Jansen's wills were executed in 1996, 1999, 2003, 2006, 2012 and 2013, respectively. In the first four cases, generally speaking, Bernard left his entire estate to Margaret if she survived him, with gifts over to their children and grandchildren and, failing those gifts, with gifts over to certain charities. Under the 2012 will, Bernard's shares in public listed companies were to be distributed equally between Marina and Louisa with the residuary estate to go to Margaret, with gifts over to the grandchildren. Some testamentary trusts for particular family members were introduced as well. Under Mr Jansen's 2013 will, there were, in addition, some direct bequests to particular charities. I turn now to the history of Bernard and Margaret's will making in more detail.

159 The 1996 wills made by the deceased and Margaret left their respective estates to each other and then, in the event of the spouse not surviving, the residuary estate was to be divided into 100 parts and distributed as follows:

(a) 10 parts to Louisa, but if she predeceased the testator, to her children Emma and James at the age of 25;

(b) 15 parts to Marina with a gift over to the Uniting Church in Australia (Terang congregation); and

(c) 75 parts to Emma and James.

160 If the residuary gifts failed then the 1996 wills distributed the residuary estate as follows:

(a) 50 parts to the Uniting Church in Australia (Terang congregation);

(b) 50 parts to the Uniting Church in Australia (Victorian Synod Melbourne).

161 The 1999 wills made by the deceased and Margaret left their estate to each other and then, in the event of the spouse not surviving, the residuary estate was to be divided into 100 parts and distributed as follows:

(a) 20 parts to Louisa, but if she predeceased the testator, to her children Emma and James at the age of 25;

(b) 25 parts to Marina with a gift over to the Salvation Army, Warrnambool Branch; and

(c) 55 parts to Emma and James.

162 If the residuary gifts failed then the 1999 wills distributed the residuary estate as follows:

(a) 50 parts to the Salvation Army, Warrnambool Branch;

(b) 50 parts to the Salvation Army, Victorian.

163 A will made by the deceased in 2003 has been located, but not one for Margaret for that year. The deceased's 2003 will left his estate to Margaret and, in the event of her not surviving, the residuary estate was to be divided into 200 parts and distributed as follows:

(a) 75 parts to Louisa, but if she predeceased the testator, to her children Emma and James at the age of 25;

(b) 75 parts to Marina with a gift over to the Salvation Army, Warrnambool Branch; and

(c) 50 parts to Emma and James.

164 If the residuary gifts failed then the deceased's 2003 will left his residuary estate as follows:

(a) 50 parts to the Salvation Army, Warrnambool Branch;

(b) 50 parts to the Salvation Army, Victorian.

165 The 2006 wills made by the deceased and Margaret left their estate to each other, but, in the event of the spouse not surviving, the estate was to be divided into 100 parts and distributed as follows:

(a) 40 parts to Marina;

(b) 30 parts to Louisa; and

(c) 30 parts to Emma, James and Ruby on trust until they attain the age of 22.

166 The 2012 wills made by the deceased and Margaret:

(a) distributed each testator's public listed company shares (excluding any such shares that may have been inherited from the other testator) equally between Marina and Louisa, with Louisa's half to be held on trust for her;

(b) left the remainder of their respective estates to each other if the other survived the testator; and

(c) in the event that the spouse did not survive the testator, divided the remainder into 100 parts and distributed those parts as follows:

(i) 5 parts to Emma;

(ii) 5 parts to James;

(iii) 5 parts to Ruby;

(iv) 5 parts to Georgia;

(v) 5 parts to Michael;

(vi) 5 parts to Harry;

(vii) 20 parts to be held on trust for Louisa and her family; and

(viii) 50 parts to be held on trust for Marina and her family.

167 The 2013 wills made by the deceased and Margaret:

(a) divided their public listed company shares (without distinction as to whether those shares were or were not inherited from each other) into 100 parts and distributed them as follows:

(i) 15 parts to Southwest Health Care Warrnambool for the sole purpose of purchasing equipment for the chemotherapy suite at the Warrnambool Campus;

(ii) 8 parts to the Uniting Church Australia Frontier Services (with a wish that the funds be directed to its Patrol Ministry);

(iii) 25 parts for Marina;

(iv) one part for Archie;

(v) 25 parts to be held on trust for Louisa;

(vi) 5 parts to Emma;

(vii) 5 parts to James;

(viii) 5 parts to Ruby;

(ix) 5 parts to Georgia;

(x) 5 parts to Michael;

(xi) one part to Harry;

(b) left the remainder of their respective estates to each other if the other survived the testator;

(c) in the event that the spouse did not survive the testator, divided the remainder into 100 parts and distributed those parts as follows:

(i) 15 parts to South West Health Care Warrnambool for the sole purpose of purchasing equipment for the chemotherapy suite at the Warrnambool Campus;

(ii) 8 parts to the Uniting Church Australia Frontier Services (with a wish that the funds be directed to its Patrol Ministry);

(iii) 25 parts to be held on trust for Marina and her family;

(iv) one part for Archie;

(v) 25 parts to be held on trust for Louisa;

(vi) 5 parts to Emma;

(vii) 5 parts to James;

(viii) 5 parts to Ruby;

(ix) 5 parts to Georgia;

(x) 5 parts to Michael; and

(xi) one part to Harry.

168 On 7 July 2014, Margaret amended her 2013 will by codicil. By that stage Bernard Jansen had lost capacity and he was unable to amend his will.

169 It can be seen from the above that the mirror wills made by Bernard and Margaret always included provision for each other and, at least by way of gifts over, for Marina and Louisa and the grandchildren.

170 As time went on, the wills came to provide less for Marina, save perhaps[280] for the 2012 will.

171 The 2013 wills involved a modest departure from the past in that the deceased and Margaret both left a total of 23% of their public listed company shares to South West Health Care Warrnambool and the Uniting Church of Australia Frontier Services.

172 However, as is common ground,[281] and as the more detailed family history discussed above confirms, both the 2012 will and the 2013 will made by Mr Jansen were rational wills. They followed a long established pattern of Bernard and Margaret making mirror wills. Both Mr Jansen's 2012 will and his 2013 will substantially favoured his spouse, children and grandchildren, notwithstanding that the 2013 will also provide for bequests to the Uniting Church (to which both Bernard and Margaret belonged) and to the hospital that was treating Margaret for her serious illness at the time when the will was made.

173 Notably, Margaret did not stand to gain more by the making of the changes that were made in 2012 and 2013 to the mutual wills, as compared with the situation under the 2006 mutual wills. Whereas Bernard's 2006 will left everything to Margaret if she survived him, his 2012 will did not do so. It left the public company shares that had originally been acquired in his name to Marina and (in trust) to Louisa equally, and it left only the remainder of the estate to Margaret (and then only if she survived him). And Margaret's entitlement under Bernard's 2013 will was, in effect, the same as her entitlement under his 2012 will.

The evidence and the issues relating to the making of the 2012 and 2013 wills

174 Mr Tait gave evidence about the making of the 2012 wills; and Mr McCulloch, too, gave evidence about that and also about the making of the 2013 will. There was no other evidence about those matters.

175 As indicated above, and as with the other witnesses, there was no attack on the credit or reliability of Mr Tait or Mr McCulloch as witnesses. Rather, Marina's counsel, in her final submissions, contended that there were aspects of Mr Tait's evidence that were 'problematic in terms of persuasive force and effect'; and she gave particulars,[282] and, as to Mr McCulloch's evidence, what she did mostly was to invite the Court to draw various inferences from Mr McCulloch's evidence as to what the solicitors did not do in the course of the will-making process.

176 There was a strong tendency in the final submissions of Marina's counsel to criticise the alleged omissions of the solicitors. However, in my view, those criticisms were, to a very large extent, misplaced and irrelevant. This proceeding is about whether or not Mr Jansen had testamentary capacity and knew and approved the contents of his wills. It is not a professional disciplinary proceeding.

177 There is little or no dispute between the parties about the accuracy of the history given by Mr Tait and Mr McCulloch of the events that did happen. And, again, there was no attack on the way in which counsel for the plaintiffs had summarised the evidence of Mr Tait and the evidence of Mr McCulloch (and related documents) in counsel's final written submissions. I regard those summaries as comprehensive and substantially fair. Accordingly, the following accounts of the making of the 2012 will and of the making of the 2013 will are largely based on those summaries. For the most part, I will come to the points made on behalf of Marina in these respects later.

178 Bernard and Margaret Jansen consulted Taits Legal in Warrnambool in March 2012 to provide instructions for new wills.

179 With respect to the 2012 wills, the following events took place:[283]

(a) on 28 March 2012, Bernard and Margaret met with John James Tait and Alex McCulloch (then a trainee solicitor) at the offices of Taits Legal in Warrnambool to provide instructions for the 2012 wills and powers of attorney;

(b) on 23 April 2012, draft wills and powers of attorney were posted out to Bernard and Margaret from Taits Legal;

(c) on 2 May 2012, Margaret telephoned Taits Legal with some further instructions and made an appointment for her and Bernard to sign the wills and powers of attorney on 9 May 2012;

(d) on 9 May 2012 Bernard and Margaret met with Mr Tait and Mr McCulloch at the offices of Taits Legal in Warrnambool and executed the wills and powers of attorney; and

(e) in July 2012 Bernard and Margaret met with Mr Tait and Mr McCulloch to sign amended powers of attorney.

180 Both Mr Tait and Mr McCulloch gave evidence about the conferences on 28 March 2012 and 9 May 2012 that is relevant to the issues of testamentary capacity and knowledge and approval.

181 Mr Tait is an experienced solicitor. In the 1960s, Mr Tait obtained a Bachelor of Laws (Honours) and a Bachelor of Arts from the University of Melbourne.[284] In 1966 he was admitted to practice as a solicitor in Victoria. In 1967 Mr Tait began working at JS Tait & Co (a firm started by his grandfather and continued by his father).[285] Mr Tait prepared wills for his clients and assisted them with their estate planning his entire career.[286] In 1993, Mr Tait was part of the first group of solicitors to be accredited as a specialist in the field of Wills and Estates by the Law Institute of Victoria. Mr Tait continued to hold his LIV specialisation until he retired in 2018.[287]

182 Mr Tait had experience dealing with clients of an advanced age,[288] and was aware of the test in Banks v Goodfellow.[289] Mr Tait gave general evidence about how he assesses clients for capacity issues.[290] Mr Tait's general practice with his clients was to ask for a medical report if he had any doubts about their capacity.[291]

183 At the time of the hearing, Alex McCulloch was a solicitor at Taits Legal. He had been admitted to practice in October 2012. Prior to his admission, he had worked part time at Taits Legal from March 2010.

184 Mr McCulloch had a general legal practice and was experienced in making wills for clients.[292] Mr McCulloch's evidence was that he had made one or two wills per week during his time at Taits Legal.[293]

185 Mr McCulloch described his general procedure when taking instructions for a will. It included asking his clients about their assets and family situation to assess their capacity to make a will.[294] Mr McCulloch gave a recent example where he was concerned about a client's capacity and he refused to make a will for her.[295]

186 As mentioned above, on 28 March 2012 Bernard and Margaret met with Mr Tait and Mr McCulloch at Taits Legal in Warrnambool to provide instructions for the 2012 wills. The conference lasted about an hour.[296]

Evidence of Mr Tait from conference on 28 March 2012

187 Mr Tait recalled the following matters from the conference on 28 March 2012:

(a) he reviewed the 2006 wills before the meeting;[297]

(b) Margaret did most of the talking in the conference, but Bernard 'certainly participated' and was involved in the process;[298]

(c) during the conference, Mr Tait observed Bernard participating by his occasional speaking, his body language and his nodding head;[299]

(d) he went through the 2006 will with Bernard and Margaret;[300]

(e) they instructed that the situation with Louisa's children had changed;[301]

(f) they wanted to benefit their grandchildren;[302]

(g) they wanted a responsible person to control Louisa's inheritance;[303]

(h) they instructed that their assets had changed in that they had moved from the farm at Noorat to Warrnambool;[304]

(i) they both talked about their assets and the shares and Bernard was particularly interested in the shares;[305]

(j) they instructed that Marina had a female partner;[306]

(k) they were nervous about Louisa getting anything and spoke about a special disability trust for her to safeguard her assets and provide some tax advantages;[307]

(l) Mr Tait formed the opinion that Bernard understood the main aspects of the special disability trust;[308]

(m) Bernard's capacity was not in doubt during the conference;[309]

(n) it was clear that Bernard and Margaret knew what they were doing;[310]

(o) Louisa was receiving a disability support pension;[311]

(p) Bernard was concerned about the proportion of their estates to go to Archie because Archie was not a blood grandchild and Katie's parents were wealthy;[312]

(q) Mr Tait suggested that Archie be included in Marina's 50% and Bernard was happy with that;[313]

(r) it was intimated that Bernard had a difficult relationship with Marina because of her lifestyle and Bernard's issues with Archie;[314]

(s) they instructed that Marina did not want any contact with Louisa;[315]

(t) they discussed the percentages of the benefits to go to their children and grandchildren from a written document that Margaret had handed over at the conference;[316]

(u) Mr Tait had difficulty extracting instructions regarding Louisa, save that he was instructed that Louisa had been in jail, she had faced drugs and assault charges and they supported her by paying for her medical cover;[317]

(v) they instructed that they supported their grandchildren both with health cover and education expenses;[318]

(w) Bernard was concerned about the capital gains tax attached to their shares;[319] and he discussed this with Mr Tait;[320]

(x) there was an issue with Harry's foster care;[321] and

(y) he had no doubt that Bernard knew what he was doing (with respect to making his will).[322]

188 Some of the matters mentioned in the previous paragraph were also noted in the contemporaneous file note taken by Mr Tait during the conference with Bernard and Margaret on 28 March 2012.[323] In particular, Mr Tait's file note refers to:

(a) Archie having a donor father;[324]

(b) Louisa being in constant trouble;[325]

(c) Bernard and Margaret paying school fees for their grandchildren;[326]

(d) a special disability trust;[327]

(e) the sum of $2 million being a reference to the share portfolio;[328] and

(f) the title to the house of Bernard and Margaret being in both names and mortgaged.[329]

189 Mr Tait's opinion was that Bernard had testamentary capacity when he gave his instructions for the 2012 will.[330]

Evidence of Alex McCulloch from conference on 28 March 2012

190 Mr McCulloch recalled meeting with Bernard and Margaret on 28 March 2012 as a trainee solicitor under Mr Tait's supervision. He described his role in the meeting as a scribe and he took notes during the meeting.[331]

191 Mr McCulloch recalled the following matters from the meeting on 28 March 2012:

(a) Bernard and Margaret's complex family situation was discussed;[332]

(b) Bernard and Margaret wanted to provide for Louisa and her children without giving them control over the assets;[333]

(c) providing for Archie was discussed;[334] and

(d) Bernard and Margaret's shares were discussed.[335]

192 Mr McCulloch took a contemporaneous handwritten eight page file note during the conference with Bernard and Margaret on 28 March 2012.[336] Following the conference, Mr McCulloch dictated his file note and had it typed up by his colleague.[337] The file note made by Mr McCulloch records the following relevant matters:

(a) Bernard and Margaret had seven grandchildren;[338]

(b) Archie was not their blood grandchild;[339]

(c) Louisa deserted all kids before 12 months old but grandkids are still in contact with Bernard and Margaret;[340]

(d) Louisa has a drinking and drugs problem;[341]

(e) Harry is now with Marina and partner as foster child but not approved yet;[342]

(f) they had a house (title at the bank) and had a line of credit with $42,000 outstanding;[343]

(g) Bernard had shares, Margaret had shares and they had shares jointly in total worth $2 million;[344]

(h) Louisa's share of the estate was to be held on disability trust;[345] and

(i) Bernard and Margaret provided a note of instructions during the conference regarding the distribution of their estate.[346]

193 With respect to testamentary capacity when Bernard gave his instructions for the 2012 will, Mr McCulloch gave the following evidence:

(a) Mr McCulloch believed that both Bernard and Margaret understood their assets;[347]

(b) Bernard understood that his family situation was complex and he and Margaret had a strong desire to provide for their grandkids;[348]

(c) Bernard understood how his assets would be treated in a will;[349] and

(d) Bernard understood what Mr Tait was saying during the conference and the effect of his will and his assets.[350]

194 On 9 May 2012, Bernard and Margaret met with Mr Tait and Mr McCulloch at the offices of Taits Legal in Warrnambool and executed the 2012 wills and powers of attorney. The conference lasted about an hour.[351]

195 The terms of the 2012 wills made by Bernard and Margaret are summarised above.[352] It may be added that, by the 2012 wills, Bernard and Margaret appointed each other, Marina and Mr Tait as executors; and that Louisa's half of the public listed company shares were to be held in a disability trust the terms of which appear at Appendix A of the wills; and that the terms of the trusts for Louisa and her family and for Marina and her family appear in clause 6 of the wills.

196 On 9 May 2012, Bernard and Margaret also signed enduring powers of attorney (financial). Bernard appointed Margaret as his attorney and Marina as his alternative attorney.[353] Margaret appointed Marina as her attorney and Bernard as her alternative attorney.[354]

197 On the same day (9 May 2012), Bernard and Margaret also signed enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Marina as his alternate agent.[355] Margaret appointed Marina as her agent and Bernard as her alternate agent.[356]

198 Also on the same day, Mr Tait and Mr McCulloch witnessed Bernard's execution of the power of attorney (financial) and certified on that document that 'at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney'.[357]

199 Further, once again on the same day, Mr Tait and Mr McCulloch witnessed Bernard's execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[358]

Evidence of Mr Tait from the conference on 9 May 2012

200 Mr Tait recalled the following matters from the meeting on 9 May 2012:

(a) he read over and paraphrased the 2012 wills with Bernard and Margaret while Bernard and Margaret read along with their own copies;[359]

(b) he again explained the way the trust in the 2012 will would work and Bernard and Margaret seemed to understand his explanation;[360]

(c) he satisfied himself that Bernard and Margaret understood the 2012 will by asking them if they agreed and understood each paragraph of the 2012 will as he read it over to them;[361]

(d) Bernard signed the 2012 will in his presence;[362] and

(e) the conference went for about an hour.[363]

201 Mr Tait's opinion was that Bernard had testamentary capacity when he signed the 2012 will.[364]

Evidence of Mr McCulloch from the conference on 9 May 2012

202 Mr McCulloch recalled the following matters from the meeting on 9 May 2012:

(a) Bernard signed the 2012 will in his and Mr Tait's presence;[365]

(b) Mr McCulloch could not recall Bernard having any difficulties understanding the will on the day it was signed;[366] and

(c) the conference went for about an hour.[367]

203 On 11 July 2012, Bernard and Margaret signed new enduring powers of attorney (financial) at the offices of Taits Legal in Warrnambool. Bernard appointed Margaret as his attorney and Margaret Haberfield as his alternative attorney.[368] Margaret appointed Margaret Haberfield as her attorney and Bernard as her alternative attorney.[369]

204 On the same day (11 July 2012), Bernard and Margaret also signed new enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Margaret Haberfield as his alternate agent.[370] Margaret appointed Margaret Haberfield as her agent and Bernard as her alternate agent.[371]

205 I note that Marina had been dropped from the powers of attorney. This followed the breakdown of relations between Marina and her parents in May 2012 following the relinquishment of Harry.

206 On 11 July 2012, Mr Tait and Mr McCulloch witnessed Bernard's execution of the power of attorney (financial) and certified on that document that 'at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney'.[372] On the same day (11 July 2012) Mr Tait and Mr McCulloch witnessed Bernard's execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[373]

Evidence of Mr Tait from the conference on 11 July 2012

207 Mr Tait recalled the following matters from the meeting on 11 July 2012:

(a) he explained to Bernard and Margaret the changes they had made to the powers of attorney and Mr Jansen seemed very approving of the changes;[374] and

(b) Bernard was able to understand what he was doing and Mr Tait did not see any capacity issues.[375]

Evidence of Mr McCulloch from the conference on 11 July 2012

208 Mr McCulloch recalled Bernard coming in to sign the powers of attorney on 11 July 2012 but he does not recall the substance of the meeting.

209 Bernard and Margaret brought a two page handwritten note with them to the conference with Taits Legal on 28 March 2012 ('the 2012 note').[376]

210 The 2012 note contained a list of Bernard and Margaret's children and grandchildren and the percentage of the estate that each child and grandchild was to receive.

211 There was a question raised at the hearing as to whether Bernard had written any part of the 2012 note.

212 The 2012 note was first mentioned in evidence by Mr Tait who described it as 'the table that Mrs Jansen produced at the interview'.[377] A little later in his evidence, Mr Tait said that he was uncertain about who wrote the note.[378] He said that he formed the view that the 2012 note may have been prepared in common by Mrs Jansen and Bernard, but it was not clear who had actually prepared it.[379]

213 This became the subject of some controversy at the hearing. The 2012 note was shown to Marina. Initially, Marina said that she was confident that all of the handwriting in the 2012 note was that of her mother. It was then pointed out to Marina that there seemed to be some differences in style between parts of the 2012 note. She looked again at the note carefully and acknowledged the apparent differences. However, she thought that the differences could be explained because of the different subject matters of the sections concerned.[380] I was impressed with Marina's evidence in this regard and I accept it. Accordingly, I will proceed on the basis that the 2012 note was written up entirely by Margaret Jansen. Of course, that does not mean that Bernard did not contribute to the content of the note when Margaret was preparing it. And I note also that the instructions in the note were the subject of consideration at the conference on 28 March 2012 attended by both Bernard and Margaret.

214 In March 2013, Bernard and Margaret consulted Taits Legal in Warrnambool to update the 2012 will. Mr Tait was away at the time, so Bernard and Margaret saw Mr McCulloch alone.

215 With respect to the 2013 wills, the following events took place:[381]

(a) on 5 March 2013, Bernard and Margaret met with Mr McCulloch at the offices of Taits Legal in Warrnambool to provide instructions for the 2013 wills and updated powers of attorney; and

(b) on 8 March 2013, Bernard and Margaret executed the 2013 wills and powers of attorney at the offices of Taits Legal in Warrnambool in the presence of Mr McCulloch and his assistant, Lynette Harry.

216 Mr McCulloch gave evidence about the conferences on 5 March 2013 and 8 March 2013 that is relevant to the issue of testamentary capacity.

217 As mentioned above, on 5 March 2013 Bernard and Margaret met with Mr McCulloch at Taits Legal in Warrnambool to provide instructions for the 2013 wills.

Evidence of Mr McCulloch from the conference on 5 March 2013

218 Mr McCulloch gave the following evidence regarding the conference on 5 March 2013:

(a) Bernard and Margaret came into the office at Taits Legal to provide instructions to update their will;[382]

(b) Bernard and Margaret provided type-written instructions as to how they wanted to update their wills;[383] and

(c) Mr McCulloch reviewed the written instructions during the conference and made his own handwritten notes on them either during the conference or some time afterwards.[384]

219 Mr McCulloch also made his own handwritten file note of the instructions during the conference.[385] That file note states that:

(a) the meeting commenced at 2.00pm;

(b) Margaret and Bernard were to be executors;[386]

(c) the changes to the will were as per the sheet provided;[387]

(d) Marina had had care of Harry but could not cope and Harry was handed over to DHS;[388] and

(e) the new wills were to be signed on 8 March 2013 as Margaret was not well with a blood disease.[389]

220 With respect to Bernard's capacity on 5 March 2013:

(a) Mr McCulloch does not remember specifics of the meeting;[390]

(b) he does not remember Bernard having any difficulty understanding his assets;[391]

(c) he does not remember having any doubts about Bernard understanding his family situation;[392]

(d) he does not recall forming a view about Bernard's understanding of what a will was and its effects;[393] and

(e) he does not recall Bernard not understanding the process of discussing his assets and the effect of his will.[394]

221 On 8 March 2013, Bernard and Margaret met with Mr McCulloch at Taits Legal in Warrnambool to execute the 2013 wills and updated powers of attorney.

222 The main terms of the 2013 wills are set out above.[395] By those wills, Bernard and Margaret appointed each other, Margaret Haberfield, Neil Holland and Mr Tait as executors.

223 On 8 March 2013, Bernard and Margaret also signed new enduring powers of attorney (financial) at Taits. Bernard appointed Margaret as his attorney and Margaret Haberfield and Neil Holland jointly as his alternative attorneys.[396] Margaret appointed Margaret Haberfield as her attorney and Neil Holland as her alternative attorney.[397]

224 On the same day (8 March 2013), Bernard and Margaret also signed new enduring powers of attorney (medical treatment). Bernard appointed Margaret as his agent and Margaret Haberfield as his alternate agent.[398] Margaret appointed Margaret Haberfield as her agent and Neil Holland as her alternate agent.[399]

225 Mr McCulloch and Lynette Harry witnessed Bernard's execution (on 8 March 2013) of the power of attorney (financial) and certified on that document that 'at the time of signing, the donor appeared to each of us to have the capacity necessary to make the enduring power of attorney'.[400]

226 Mr McCulloch gave evidence that his usual practice when witnessing a power of attorney was to satisfy himself that the donor of the power understood what they were doing and what their options were.[401]

227 On 8 March 2013, Mr McCulloch and Lynette Harry witnessed Bernard's execution of the power of attorney (medical treatment) and certified on that document that they each believed that Bernard was of sound mind and understood the importance of the document.[402]

Evidence of Mr McCulloch from the conference on 8 March 2013

228 Mr McCulloch said that during the signing conference on 8 March 2013 he would have gone through the 2013 wills with Bernard and Margaret, and asked them if they understood the wills. If they did understand the wills, he (Mr McCulloch) would have signed them as a witness.[403]

229 Mr McCulloch made a typed file note from the conference on 8 March 2013.[404] That note states that:

(a) Mr McCulloch explained the contents of the wills and asked if they both understood;

(b) they (being Bernard and Margaret) said they did understand and were happy with the contents of the will;

(c) Mr McCulloch explained Bernard's medical and financial power of attorney to Bernard and he understood and signed them; and

(d) the conference lasted for 25 minutes.

230 With respect to capacity, during the conference on 8 March 2013:

(a) Mr McCulloch formed the view that Bernard understood how his will operated;[405]

(b) Mr McCulloch did not form an opinion that Bernard did not understand what his assets were;[406]

(c) Mr McCulloch did not form an opinion that Bernard did not understand his family situation;[407] and

(d) Mr McCulloch did not form an opinion that Bernard did not understand how the will operated and the nature of the will.[408]

Mr McCulloch's contact with Bernard in May 2014

231 In May 2014, whilst resident at Mercy Place, Margaret contacted Taits Legal to update the 2013 wills and arranged for Mr McCulloch to attend Mercy Place.

232 Mr McCulloch recalls meeting with Margaret and Bernard at Mercy Place on 29 May 2014.

233 Mr McCulloch's evidence from that meeting was that Bernard lacked capacity to change his will at that time. Mr McCulloch formed this view after Bernard was unable to recall his daughters.[409]

234 Mr McCulloch declined to update Bernard's 2013 will because he formed the view that Bernard lacked testamentary capacity at that time.

Marina's points about the making of the wills and the solicitors' evidence

235 In her closing submissions, Marina's counsel notes that Mr Tait was only involved personally in relation to the events of 2012, as distinct from 2013.[410] That is common ground.

236 Next, Marina's counsel notes that there is nothing in the evidence to the effect that Mr Tait had before him the previous wills for the period between 1996 and 2003.[411] That seems to be a matter of no moment. There is no dispute that Mr Tait had with him, and discussed with the Jansens, the terms of their 2006 mutual wills and the changes that they wished to make to update those wills.[412] The previous wills for 1996 to 2003 remain relevant to reinforce the proposition that the later wills were consistent with the Jansens' previous pattern of will making, and were rational and unsurprising. That proposition is not in dispute.

237 In the same context, Marina's counsel makes passing reference to Mr Tait's evidence that he would generally make 'small talk' with a client to ascertain their background and family situation and that this would also assist him in determining whether there were any issues with capacity. If issues in relation to capacity did manifest themselves, only then would Mr Tait request a medical report.[413] Counsel did not say what was wrong with that approach.

238 Next, counsel submitted that Mr Tait's evidence did not establish with sufficient particularity that Bernard, as distinct from Margaret, provided the solicitors with instructions.[414] It is true that Mr Tait frequently referred to Bernard and Margaret as a collective, using the word 'they' quite often. Nevertheless, Mr Tait also made several relevant references to Bernard himself as a participant. As mentioned in the summary given above of Mr Tait's evidence from the conference on 28 March 2012, Mr Tait acknowledged that Margaret did most of the talking, but also said that Bernard 'certainly participated'.[415] Mr Tait said that Bernard was not looking out of the window or doing things that would suggest that he was not involved in the process. When cross-examined about this, Mr Tait said that Bernard was participating '[o]ccasionally with speaking' and body language (including nodding).[416] Moreover, Mr Tait mentions that Bernard was particularly interested in the company shares.[417] It is true that Mr Tait said that he could not remember whether it was Mr Jansen or Mrs Jansen who answered his opening questions about the 2006 will and about the subsequently born children and the like, but he said that it could have been either of them. Unsurprisingly, at that distance in time (some eight years), he could not remember.[418] And there is another matter of considerable importance. It was not Margaret Jansen but Bernard Jansen who (as the Court now knows from other evidence) was particularly concerned about any bequest to Archie because Archie was not of the Jansen bloodline. It is true that Mr Tait said that it had been 'intimated rather than stated clearly' that Bernard had a difficult relationship with Marina because of her lifestyle and because Archie was not of the Jansen bloodline. But Mr Tait gave clear evidence that Bernard was 'very interested' in what would go to Archie.[419] This may have been a topic that was raised delicately, but it was certainly raised and it assumed importance. Indeed, Mr Tait came up with a suggestion that Archie be included in Marina's 50%; and Mr Tait said clearly that Bernard (himself) was 'happy with that'.[420] It seems highly likely that Bernard did participate in discussions about (at least) those topics. Thus Mr Tait is likely to have had ample opportunity to make observations of Bernard's capacity. And Mr Tait nevertheless had 'no inkling' that Bernard did not understand what he was doing.

239 Finally, as to Mr Tait's evidence, Marina's counsel submits that, in cross-examination, Mr Tait directly contradicted his earlier evidence that, had he been made aware of capacity issues, he would have obtained a medical report from a practitioner.[421] In my view, there was no contradiction. Rather, what Mr Tait said, in effect, was that he would not automatically accept that a medical report asserting that a client did not have testamentary capacity was determinative. Mr Tait commented, correctly, that doctors may know what dementia is in medical terms but they do not necessarily know how the law treats dementia for testamentary capacity purposes.[422]

240 Turning to Mr McCulloch's evidence about the conference on 28 March 2012, Marina's counsel makes a series of complaints about Mr McCulloch not being able to recall specific details as to who said what at the conference.[423] It is hardly to be expected that Mr McCulloch would retain such specific recollections. And, in the end, Mr McCulloch was unshaken in his view that Bernard had testamentary capacity and knew and approved of the contents of his 2012 will.

241 Both Mr Tait and Mr McCulloch saw Bernard and Margaret several times in 2012. Mr McCulloch saw them several times in 2013. Mr Tait was a solicitor of very great expertise and experience in relation to wills and estates and Mr McCulloch was working under his supervision. The fact that neither of them had any inkling that Bernard was incapacitated is, in itself, a strong indication that Bernard had, at least, sufficient cognitive ability to make a will during the relevant period.

242 As to the 2013 will in particular, it is true that, once again, Mr McCulloch could not recall all the specifics of the meetings. However, it is plain that he perceived no cause for concern at that time. That in itself provides significant support for the proposition that Bernard had sufficient capacity to make the 2013 will and that he knew and understood its terms (which had been explained to him). Appropriately, Mr McCulloch later formed a different view about the position in May 2014.

243 Marina's counsel does not suggest that the Jansens' assets as at 2012 or 2013 were complex, extensive or unusual. It seems that the Jansens possessed no more than some company shares (which both of them had taken a particular interest in for many years), a home held in joint names that was subject to a bank mortgage and perhaps some cash.

244 It is true that the trust provisions in the 2012 and 2013 wills extended the length of those documents. But, as mentioned above, the substance and effect of the trust provisions was fully explained to the Jansens, including Bernard, by their solicitors; and, on the authorities referred to above, that was enough.

245 The wills made bequests to family members and, in 2013, to certain familiar charities. Bernard know the members of his family. In my view, he could evaluate the relevant claims on his bounty.

246 In the second last paragraph of her closing written submissions, counsel for Marina says:

It is submitted that the family history provided by Marina in relation to the role that her mother played in the marriage, is further illustrative of the tendency for Mrs Jansen to take control of these matters, on behalf of herself and her husband, with her husband simply taking a backstep. Whilst it is accepted that couples will often rely on each other for such matters, it is still incumbent on the practitioner to ensure that even if there is common ground between the couples as to their succession planning, that that is indeed what each one of them wants for themselves.

247 I see this case a little differently. Bernard and Margaret were a "great team". As Marina said in her evidence, they played to their strengths. In 2012 and 2013, Bernard Jansen may well have continued to "take a back step" to Margaret and may well have allowed Margaret, once again, to take the lead in an aspect of their legal and financial affairs, namely their mutual estate planning. If so, he was doing what he wanted for himself. If so, it would matter not whether his solicitors duly ascertained that information for themselves. If so, it would not mean that he lacked testamentary capacity or did not know or approve the terms of his and Margaret's mutual wills.[424]

248 As indicated above, I am satisfied, on all of the evidence before the Court, that Bernard Jansen had testamentary capacity for both the 2012 and 2013 wills and that he knew and approved of the contents of both of them.

249 Counsel are invited to submit to the Court, within 14 days, their proposals for the terms of the orders that should be made to dispose of these proceedings, including in relation to costs.

[1] Transcript of proceedings before Cavanough J ('T'), 509 (Mr Rizzi), 540-541 (Ms Konstantinou); outline of plaintiffs' closing submissions dated 20 January 2021 ('plaintiffs' closing written submissions') [173]-[177].

[2] Plaintiffs' closing written submissions [178]-[179]; Marina's closing written submissions dated 2 February 2021 ('Marina's closing written submissions') [6.1.1].

[3] [2004] VSCA 235 [37].

[4] [2015] VSCA 60; (2015) 46 VR 123, 174 [167].

[5] [2015] VSCA 60; (2015) 46 VR 123, 174 (footnote 69).

[6] [2017] SASC 8.

[7] [2017] SASC 8 [15]-[33], [536]-[537] (footnotes included but renumbered).

[8] (1870) LR 5 QB 549 at 565.

[9] [2010] SASC 153; (2010) 107 SASR 309 at 320.

[10] (1995) 217 ALR 284 at 295.

[11] (1870) LR 5 QB 549 at 568.

[12] [1898] VicLawRp 39; (1897) 23 VLR 197 at 199.

[13] [1924] HCA 21; (1924) 34 CLR 558 at 570.

[15] [1952] HCA 67; (1952) 86 CLR 439 at 453. See also Boreham v Prince Henry Hospital (1955) 29 ALJ 179.

[16] Re Estate of Griffith (1995) 217 ALR 284 at 291.

[17] [1998] NSWCA 182 at 4-5.

[18] [2008] NSWSC 39 at [42].

[19] [2012] NSWSC 1435 at [342]-[345].

[20] King v Hudson [2009] NSWSC 1013 at [51].

[21] [2012] NSWSC 1489 at [53].

[22] The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [372]-[377].

[23] [2009] VSC 64 at [97].

[24] [2015] VSCA 60.

[25] [2015] VSCA 60 at [169]-[173].

[26] [2015] VSCA 60 at [179].

[27] [2017] SASC 8 [538].

[28] [2018] NSWCA 65; (2018) 97 NSWLR 328.

[29] [2018] NSWCA 65; (2018) 97 NSWLR 328, 330 [5]-[6] (citations omitted).

[30] Plaintiffs' outline of opening submissions dated 16 November 2020 ('plaintiffs' opening outline') [48]; plaintiffs' closing written submissions [179].

[31] Rhodes v Rhodes (1882) LR 7 App Cas 192, 199-200; Nicholson v Knaggs [2009] VSC 64 [97] and cases there discussed. See also Roche v Roche [2017] SASC 8 [32] which is set out above.

[32] Cf Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328, 330 [5]-[6].

[33] See and compare Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 173-180 [166]-[179]; Roche v Roche [2017] SASC 8 [536]-[538]; Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505, 521 [75].

[34] See and compare Roche v Roche & Anor [2017] SASC 8 [11].

[35] See, e.g., Croft v Sanders [2019] NSWCA 303 [86].

[36] Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505, 517 [52].

[37] G.E. Dal Pont, Law of Succession, 3rd edition, 2021 [2.17] and cases there cited.

[38] T509-510; and plaintiffs' closing written submissions [180]-[184].

[43] Written report from Ms Vivien George to Dr Neil Jackson dated 21 March 2012, CCB 93. However, there is no other evidence of this; and it may represent a misunderstanding on Ms George's part.

[44] Evidence of Marina Larsson, T420-421.

[47] Ibid, 434. Marina thought that this might have occurred in the early 2000s, but in Bernard's and Margaret's mutual wills of 3 October 2006, their address is still stated to be their Noorat address. And a referral letter between doctors of 18 September 2008 still gives a Noorat address for the Jansens: see CB 57.

[48] Louisa has been duly notified of these proceedings but takes no part in them.

[57] Joint trial document - statement of agreed facts.

[58] The provisions of the wills in question are summarised below under the heading 'History of will-making'.

[59] Evidence of Marina Larsson, T453-455.

[83] Ibid, 436-437. Marina's description here brings to mind the beautiful song 'The Dutchman' made famous by the late, great Irish folksinger, Liam Clancy. In the song, 'Margaret' supports and guides her greatly diminished partner ('the Dutchman' of the song's title) tenderly day after day. But, unlike the Dutchman, Bernard was certainly not 'as mad as he can be'. Indeed, as mentioned above, there is no contention in this case that Bernard was delusional or in any way 'mad' at any relevant time.

[106] Plaintiffs' closing written submissions, [126]-[130].

[107] Evidence of Mrs Haberfield, T253-256.

[109] Evidence of Mrs Haberfield, T256-257.

[116] Ibid, 264-265, 273-274, 274-275.

[125] Ibid, 260-261. I note that Mrs Haberfield had been named as an executor of the 2006 wills, but not of the 2012 wills.

[126] It is not clear what the forms were. Mrs Haberfield did apparently sign two statements of acceptance of powers of attorney that had been given by Bernard and Margaret around this time, but those statements of acceptance (as reproduced at CCB 257 and 266) were both dated 9 March 2013 (i.e. the day after the execution of the 2013 wills). And Mrs Haberfield did not recognise those documents as being the forms that she signed when the Jansens came to see her about becoming an executor: T262-263.

[129] Plaintiffs' closing written submissions, [124].

[132] See, e.g. Re Brokenshire (Dec'd) [1998] VSC 183; (1998) 8 VR 659, 675 [125] (Smith J); Nicholson v Knaggs [2009] VSC 64 at [363]- [367] (Vickery J); Roche v Roche & Anor [2017] SASC 8 [4]-[11], [33], [531]-[535], [538] (Kourakis CJ); Carr v Homerscham [2018] NSWCA 65; (2018) 97 NSWLR 328, 332 [15] (Basten JA), [128] (Leeming JA); Re Vallance [2018] VSC 573 [12], [49], [53], [58] (McMillan J); Drivas v Jakopovic [2019] NSWCA 218; (2019) 100 NSWLR 505, 508 [11], [58]-[61]; Croft v Sanders [2019] NSWCA 303 [24], [86], [128].

[133] Evidence of Dr Neil Jackson, T281.

[135] Other evidence mentioned above indicates that the Jansens did not move to south-western Victoria until about 1996. However, the difference is insignificant.

[136] Evidence of Dr Neil Jackson, T283.

[139] Evidence of Dr Neil Jackson, T286.

[145] Although it was challenged in cross-examination (ibid 304-306), I accept Dr Jackson's evidence that, in this part of the MMSE, he administered the arithmetic test rather than the alternative test of requiring the patient to spell the word 'world' backwards.

[146] Evidence of Dr Neil Jackson, T297.

[155] Evidence of Dr Neil Jackson, T290.

[158] Evidence of Dr Neil Jackson, T308.

[164] Estate of Stanley William Church [2012] NSWSC 1013 at [53]- [58] (White J), as cited by Kourakis CJ in Roche v Roche & Anor [2017] SASC 8 at [30] (set out above). See also Roche at [32], also set out above.

[165] Evidence of Dr Neil Jackson, T300-301.

[170] Evidence of Dr Bronwyn McKenzie, T319-320.

[192] Evidence of Vivien George, T355-357.

[198] Defendant's closing written submissions, [7.5.3].

[199] Evidence of Vivien George, T365.

[200] Defendant's written closing submissions, [7.5.4].

[201] Evidence of Vivien George, T368.

[202] This was not the statement on which counsel for Marina relied for her abovementioned submission that Ms George recalled Mr Jansen not being able to give the history of his family. In any event, this statement was referring to Mr Jansen's own past history, not the history of his family.

[203] Evidence of Vivien George, T369.

[204] Ibid, 369-375, 380-382, 386-387.

[206] Defendant's closing written submissions, [7.5.6].

[215] Defendant's final written submissions, [7.6.2].

[219] Plaintiffs' written closing submissions, [169]-172].

[220] See evidence of Gayle Dwyer at T469; CCB 327.

[222] See evidence of Gayle Dwyer at T470; CCB 335-336.

[224] Plaintiffs' closing written submissions [132]-[155].

[225] Evidence of Dr Phillip Hall, T128.

[249] Ibid, 119. I note that Dr Hall described Jane Reynolds as a 'long standing, highly respected OT driving assessor in Warrnambool'; that she was 'always the go to person because... she knew the area very well [and] she put the people she was testing at ease, especially someone with dementia'.

[251] What happened in March 2014, in fact, was that the ACAS approval for the move to Mercy Place was given, but the actual move did not occur until April 2014.

[253] Evidence of Dr Phillip Hall, T131.

[255] Evidence of Dr Phillip Hall, T163-164.

[270] CCB 373-374; evidence of Dr Phillip Hall, T140-141 and 143.

[272] Defendants' closing written submissions [7.4.1]-[7.4.8].

[273] Ibid, [7.4.1], [7.4.4], [7.4.7].

[278] Plaintiffs' opening outline [20]-[35].

[279] As mentioned below, a 2003 will for Bernard has been located but not one for Margaret. However, it seems likely that Margaret would have made a mirror will in 2003 as well.

[281] See plaintiffs' opening written submissions [56]. There was no submission to the contrary on behalf of Marina.

[282] Defendants' closing written submissions, [9.1.3].

[296] Mr Taits evidence, T49-50. See also the time recording at CCB 177.

[312] Ibid, 39-40, 70. As mentioned above, according to Marina, Katie's parents were not in fact wealthy. Bernard had gained this impression because Katie's parents lived on a country property.

[337] CCB 112-113; evidence of Mr McCulloch, T173.

[342] Evidence of Mr McCulloch, T174-175.

[351] Mr Tait's evidence, T49. See also time recording at CCB 177.

[359] Evidence of Mr Tait, T46, 47, 48.

[376] CCB 119-120; evidence of Mr Tait, T43, 44.

[380] Evidence of Marina Larsson, T451.

[386] Ibid. See also evidence of Mr McCulloch, T191.

[389] Ibid and see evidence of Mr McCulloch, T192.

[401] Evidence of Mr McCulloch, T247-248.

[409] Ibid, 206; CCB 278-285; CCB 283-284; Evidence of Mr McCulloch, T211.

[410] Defendants' closing written submissions [9.1.1].

[414] Defendants' closing written submissions [9.1.3].

[421] Defendants' closing written submissions [9.1.3(q)].

[424] See and compare Tobin v Ezekiel [2011] NSWSC 81, [90] (Brereton J); affirmed Tobin v Ezekiel [2012] NSWCA 285.