Succession - The making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Evidence - Onus of proof and weight of evidence - Will executed day before death - Rule in Parker v Felgate - Instructions for preparation of will not followed by solicitor.

Succession - The making of a will - Testamentary instruments - Knowledge and approval of contents - Distinct concept from testamentary capacity and understanding will prepared on earlier instructions.

Parker v Felgate (1883) LR 8 PD 171; Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786; Banks v Goodfellow (1870) LR QB 549; Howroyd v Howroyd [2011] TASSC 73, applied.

Virginie-Pitel v Campbell [2010] NSWSC 1440; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558; Lacerenza v Veronica Maria Calautti as Executor of the Estate of Anna Lacerenza (Dec) [2005] WASC 46; Landers v Landers [1914] HCA 74; (1914) 19 CLR 222; Harrison v Petersen [2000] QSC 415; Perrins v Holland [2011] Ch 270; Dickman v Holley; Estate of Simpson [2013] NSWSC 18; Bramston v Morris; Estate of Murray BC9303644 (unreported Supreme Court of NSW Probate Division 20 August 1993); Mohan v Broughton [1899] P 211; Brisbane South Regional Hospital v Taylor [1996] HCA 25; (1996) 186 CLR 541; Romascu v Manolache [2011] NSWSC 1362; Veall v Veall [2015] VSCA 60, considered.

As Litigation Guardian: Office of the Solicitor-General

Judgment Number: [2016] TASSC 28

1. The late Peter Hookway (variously referred to hereinafter as "the testator" or "father") executed a last will and testament on 13 June 2006 ("the June will"). On 23 July 2006 he revoked the June will and executed a new will ("the July will"). He died shortly after midnight that night. That is to say, he died on 24 July 2006.
2. By the June will, relevantly, the testator appointed his daughter, Tamzin Peta Hookway (with no disrespect, referred to hereinafter simply as "Tamzin") and his son Stirling Matthew Hookway (with no disrespect, referred to hereinafter simply as "Stirling") as executors and trustees of his will, and after making numerous specific bequests the testator gave devised and bequeathed the residue of his estate to Tamzin and Stirling in equal shares. Stirling admits that the testator had the necessary testamentary capacity when he executed the June will. That will is attached to these reasons as Attachment A.
3. By the July will, relevantly, the testator again appointed Tamzin and Stirling as executors and trustees of the will, but added two additional executors and trustees, namely Russell Hookway and Maxwell Simons.
4. By the July will the testator again made a number of specific bequests and again left the residue of his estate to Tamzin and Stirling in equal shares, but by cl 11 of the will he devised his land at Cambridge in Tasmania comprised in Certificates of Title 146586 Folios 3 and 6 and Volume 250819 Folio 1 (specified in the clause as "the Trust Allocation"), to his executors and trustees on the trusts he set out in cls 12 and 13 of the will ("the Testamentary Trust"). The beneficiaries of those trusts were named as his grandchildren Madeleine Peta Hookway, Monique Madeleine Hookway and Damien Harold Hookway, and any other grandchildren born before the termination of the trust, and any child or remoter issue of any grandchild. The July will is attached to these reasons as Attachment B.
5. On 7 September 2006 probate of the July will in common form was granted to all four of the appointed executors and trustees. Both Russell Hookway and Maxwell Simons subsequently retired as executors and trustees of the July will with effect from 18 December 2008.
6. In proceeding number M311/2006 brought by the testator's widow, Renate Reinisch, pursuant to the Testators Family Maintenance Act 1912, this Court made an order that further provision be made for her from the residuary estate in the sum of $1,800,000.
7. In proceeding number 675/2014 Stirling sought an order from this Court for the removal of Tamzin as a trustee of the Testamentary Trust, and an order that Russell Hookway be appointed in her place. By a cross-application in that proceeding Tamzin claimed that neither she nor Stirling should be trustees, and she sought an order appointing Mr Roger McBain, or some other fit and proper person, as the sole trustee in lieu of herself and Stirling.
8. In action number 169/2015 Tamzin sought an order that the grant of probate on 7 September 2006 to Stirling should be revoked and letters of administration, with the July will annexed, be granted to Roger McBain or some other fit and proper person in lieu of the grant to herself and Stirling.
9. In action number 2014/2015 Tamzin, as plaintiff, claims as against Stirling, as defendant, that their father lacked testamentary capacity when he made the July will, and that in consequence this Court ought to revoke the grant of probate in respect of it. Tamzin seeks revocation of the grant of probate made by this Court on 7 September 2006, and an order that there be a grant of probate in solemn form or, alternatively, that there be a grant of letters of administration with the will annexed, of the June will, and that an independent person or corporation determined by this Court be appointed trustee and executor of the June will.
10. Roger McBain is no longer available to be appointed as an executor or trustee. However, upon the commencement of the trial of proceeding number 675/2014 and action number 169/2015, which were to be heard together with and at the same time as action number 2014/2015, Stirling advised the Court that he would agree to the appointment of an independent trustee company as executor of the July will should it be held to be valid, and as trustee of the Testamentary Trust should the will survive the challenge to the testator's testamentary capacity raised by action number 2014/2015.
11. It follows that it is only action number 2014/2015 with which I am presently concerned.

1. It is unnecessary to set out the pleadings in the action. The central and determinative issues they raise are, in a logical order:

(a) Is Tamzin now precluded by acquiescence and affirmation, delay and/or resultant prejudice to Stirling or the estate from applying to have the grant of probate of the July will revoked?

(b) If not, is there is evidence before the Court to incite a suspicion that the testator did not have testamentary capacity to make the July will?

(c) If so, has Stirling proved affirmatively that the testator had testamentary capacity to make the July will and/or knew and approved of its contents?

(d) If not, does this case engage the rule in Parker v Felgate (1883) LR 8 PD 171?

1. The trial of the action proceeded by way of evidence on affidavit.
2. The first witness called was Tamzin. Her counsel, Mr McElwaine SC, read four affidavits sworn by her. They were affidavits dated 11 March 2015, 14 December 2015, 17 December 2015 and 4 February 2016. No additional evidence-in-chief was led orally, and Tamzin was submitted for cross-examination by Stirling's counsel, Mr McTaggart SC.
3. It is convenient to mention at this point that as none of the testator's (now) four grandchildren had reached the age of 18 years they were represented, along with the class of unborn children or remoter issue of those grandchildren, by Mr Turner as counsel for the Director of Public Prosecutions, Mr Coates SC, who was appointed by the court as litigation guardian for the grandchildren and remoter issue.

1. As has already been observed, the testator passed away shortly after midnight on the day he executed the July will on Sunday 23 July 2006. That is to say, in the earliest hour of the morning of 24 July 2006.
2. He had been terminally ill with cancer and was cared for at his home until his death. Tamzin, who occupied an apartment underneath that of her father, looked after his needs. She had been a registered nurse until the year 2000.
3. There is no serious suggestion on the evidence, and there is no claim made by Tamzin, as to any lack of testamentary capacity on the part of the testator until a time after a palliative care nurse visited him at home in the late afternoon of Saturday, 22 July 2006, at around 6pm and connected him to a "syringe driver". That device automatically administered measured doses of morphine and Midazolam. The nurse showed Tamzin how to use the device in order to deliver additional measured doses of the drugs, known as "breakthrough medication", when required.
4. From that point in time I set out the relevant paragraphs of Tamzin's affidavit of 14 December 2015 in full. She stated as follows:

"24 The nurse told me that the 'breakthrough' medication was morphine and midazolam, the same medications as in the syringe driver, but in different ratios, and was to be given for breakthrough symptoms including agitation, pain, breathlessness and anxiety.

25 I had trained as a nurse in 1985 to 1988, and maintained my registration until approximately 2000. Whilst I had had some exposure to syringe drivers for terminally ill patients in the past, I had not worked in a hospital environment since 1992. The nurse explained for me to give the breakthrough doses when needed, this could mean giving it hourly if he was in pain, any sort of discomfort, restlessness or agitation.

26 I expressed my concern I could do harm to my father, and it was explained to me by the nurse that giving the breakthrough doses was not harmful, rather it was keeping my father comfortable. It was stressed to me that we should be able to minimise any pain and not to be concerned about giving additional doses if we considered it was necessary.

27 In the six months (at least) prior to his death my father had not been sleeping well due to pain, and I would often check on him during the night and find him sitting up in the TV room in pain. My father was a very gracious patient and didn't complain a lot about the pain he often experienced, and continued to fight against the cancer vigorously as he didn't want to die.

28 I know he often experienced considerable pain, because he told me he had pain, but at times he was reluctant to take all the medications as directed because they caused constipation, or he had difficulty swallowing the tablets due to large mouth ulcers. He preferred the Fentanyl skin patches for pain relief (and would often not want me to remove the old one when I put on the new patch).

29 During the last month of his life my father experienced shortness of breath and we tried to relieve this with oxygen (via a portable oxygen cylinder), but he didn't like the mask or the nasal prongs and rarely used it, preferring to recline in his 'Stressless' lounge chair with the footstool as he said he found this more comfortable and this may have assisted his breathing by sitting up.

30 He would also swap between the two bedrooms upstairs trying to get comfortable, as one had an electric bed and the other bed was much softer, but regardless of the bed I saw and heard that it was difficult for him to lie down to sleep for more than short periods.

31 The house has two telephone lines and as I lived downstairs I would go to bed with the portable hand set next to my bed so my father could call me during the night if he needed anything, which he did on occasion.

32 During the night of 22 July 2006 my father appeared reasonably comfortable following the change in pain relief to the syringe driver, and slept for short periods.

33 On Sunday morning, 23 July 2006, my father seemed ok but as the morning progressed he appeared to become restless and I continued the breakthrough doses of morphine and midazolam to keep him comfortable and the symptoms under control, but I was not sure of the reason for his agitation.

34 When I asked him if he had pain he said it was OK, but as he didn't say no I was watching for signs of increased discomfort.

35 When I suggested he have a lie down he said he did not want to sleep in his bed despite appearing to be tired, and would instead recline (often resting) in his lounge chair or tried to shuffle around occasionally, but by late Sunday afternoon he was unstable on his feet and required assistance to move about.

36 At about midday he dropped the Will document in my lap and said he didn't know what to do, I asked 'what do you mean?'. He responded that 'it doesn't say 50/50 or when they can be owners'.

37 I looked at the document and said to my father 'Dad, I can't let you sign this, you have been pumped full of pain killers, why now?'. My father appeared agitated or distressed by this, and said 'Stirling wants me to sign it, I don't know what to do, it must be 50/50'.

38 As he did not answer or acknowledge my question and I did not want to upset him there was no further discussion.

39 I took the new Will document to read and I again suggested my father have a lie down, hoping maybe I would be able to have a conversation with him after he had had a rest in bed - but he didn't want to move from the lounge chair and then shortly afterwards Max Simons arrived to sit with him.

40 Approximately mid-afternoon (after 3pm) and after I had read the Will I said to my father I don't understand this document (referring to the Trust clause). My father didn't say anything to this and I said the only suggestion I had was to try and contact the lawyer; again my father did not say anything, but nodded in response.

41 At this time my father was short of breath, he was awake but not alert, his concentration was poor, he was extremely tired/fatigued and was slow to answer questions, or stated the same thing over or didn't respond at all and appear to stare at nothing.

42 My father was unable to have a conversation as I had always known him to, and I was unable to obtain any further clarity from him about the Will and his concerns.

43 With the change in pain relief via the syringe driver I thought he would appear a little more relaxed, but he appeared to be fighting it, or anxious about something, or maybe it was his body nearing death, but he was not himself and I could not converse with him. He was not outwardly inappropriate in his behaviour, but he was rapidly changing both physically and mentally.

44 From the time my father commenced the syringe driver I used a guide of 4 hourly to administer the breakthrough doses of morphine and midazolam. Initially he appeared comfortable during the night without being administered these doses 4 hourly, however as Sunday 23rd July 2006 progressed the time between administering doses reduced to less than 4 hours.

45 I telephoned David Morris, who said he would try to contact Peter Manser, the lawyer who had prepared the new Will document with the Trust clause. Peter Manser arrived between 4.45 and 5pm that same Sunday, and left shortly after 5pm.

46 I introduced Peter Manser to my father, my father tried to put his hand out to shake hands but was too exhausted to lift his arm up and unable to get out of the chair, so I indicated to Peter Manser to sit in the chair next to my father.

47 Peter didn't make any small talk with my father, and did not mention if there had been any previous conversations with my father about the new Will document.

48 My father sat quietly in his lounge chair and I explained to Peter Manser that my father had two questions about the Trust and was anxious about it being correct.

49 Peter Manser asked to see the Will, I handed the document to him and we sat while he read it and then I said 'the document doesn't say the Trust is 50/50'. Peter Manser did not ask any questions of my father, but simply said 'your Trustees will ensure that' and I then asked on behalf of my father what age the grandchildren can be owners (the same two questions my father had asked earlier in the day of me). Peter Manser said 'your Trustees can decide that' in response to my second question.

50 I then asked Peter Manser if he considered it to be OK for my father to sign the Will, and he stated 'yes' and asked if I knew how to have the Will executed.

51. Peter Manser left, and I then suggested to my father that he have a lie down in bed, - but he declined this suggestion again, but I was anxious he lay down as he still seemed agitated and had not slept all day.

52 He was extremely tired, restless (wringing and rubbing his hands intermittently) and withdrawn, but I was unsure if it was his illness, the medication, or the Will which was causing his apparent stress and I provided a breakthrough dose of the morphine and midazolam shortly after 5pm.

53 On Sunday 23rd July 2006 between the hours of approximately 6am and 7.30pm I administered a minimum of 3 breakthrough doses, and likely to have been 4 doses. My father remained agitated after Peter Manser left the house and I provided a breakthrough dose shortly after 5pm (being one of the 4 doses referred to above).

54 While I was concerned my father was not in a condition to be making decisions about his Estate, I thought that if Peter Manser had reassured my father that the Will reflected his wishes, then if he signed it he would be able to rest.

55 I visited Albert Ng across the road, and he and his wife Samantha came over a little later (approximately 7.30pm) to witness the signing.

56 My father didn't know where to sign and I had to show him where to do so. He practiced his signature on a spare piece of paper before he signed, and could barely hold the pen. He was unable to write the date in the Will, and I completed that.

57 After the Will was signed and witnessed, the Ngs left immediately and I suggested Dad have a rest in bed and for Max to say good bye.

58 As I was helping my father into bed he asked me if he should take his pyjamas off, I asked him if he needed to go to the bathroom (he had not been eating or drinking all day, just some ice or small sips to moisten his mouth so I thought this was unlikely) and he looked at me blankly.

59 I asked why did he want to take his pyjamas off (he never took his pyjamas off when he went to bed) and then he said 'do I need to put them on'. I explained he had his pyjamas on, and then I helped him into bed. His condition was deteriorating rapidly and I thought he was confused.

60 It was approximately 8.30pm when I gave a further breakthrough dose of morphine and midazolam and I held my father's hand while he fell asleep which happened quite quickly.

61 I then attended to my daughter downstairs and in less than two hours Rene screamed for me to come quickly. I went to my father's room and saw him on his bed, clenching his fists and pushing them into the bed and clenching his jaw/mouth; his breathing pattern was laboured and he was not responding when I spoke to him.

62 Rene screamed at me to do something, I explained to her I did not expect him to regain consciousness and I would give him another breakthrough dose - which I did immediately.

63 Following the additional pain relief my father's body relaxed and his breathing relaxed to shallow breathes.

64 Within a short period of time his breathing became what I recognised as Cheyne-Stoking [sic] - the breathing was shallow and with irregular gaps, the gaps became longer, I thought he had died before midnight, but then there were a few more shallow gasps, this continued until his final breathe shortly after midnight."

1. Tamzin was cross-examined by Mr McTaggart.
2. She accepted that in her affidavit she suggests that it was her father's intention to benefit her child as to 50% and Stirling's children as to 50%. And Tamzin accepted that it was on the basis of that belief that, during the course of the earlier proceedings between her and Stirling, she had sought a distribution of the trust on a 50/50 basis, had looked at a suggestion to "clone" the trust and also sought a cash payout based on a 50/50 basis as a possible negotiated settlement.
3. She said that at the date her father signed the July will she understood that the trustees were to "distribute fifty-fifty" but she accepted that when she instituted an action in July 2012 against Mr Manser's firm of lawyers, Simmons Wolfhagen, for negligent advice as it pertained to the respective shares of the testator's grandchildren and remoter issue, she knew that there was no guarantee that the trustees of the Testamentary Trust would make distributions from the Trust in the ratio of 50% to her daughter and 50% between Stirling's three children. She accepted that nonetheless she made no challenge to the validity of the July will until the current action was commenced on 23 October 2015.
4. She accepted that in an affidavit sworn by her in the Testator's Family Maintenance Act proceedings brought by the testator's widow, she made no mention of the matters she now describes in her affidavit as set out above as to the testator's concerns about the terms of the July will. On the contrary, she accepted that in her affidavit in the widow's application for provision that she, Tamzin, swore that Mr Manser had discussed all her father's concerns as to the provisions of the July will to her father's satisfaction. She said that she was told that the matter of her father's concerns was not relevant.
5. Tamzin further accepted in cross-examination that she knew that she was personally better off under the terms of the June will, and that if her daughter were to die, Tamzin would receive no benefit from the trust established by the July will. She accepted that she knew that it was in her personal interest to claim that her father did not have the necessary capacity to make the July will.
6. Tamzin was asked by Mr McTaggart if she accepted that it was her desire following the death of her father to get 50% of the Testamentary Trust for the benefit of her child. Her answer was, "It was my father's wishes, not my desire." She accepted however that her desire was now to get rid of the Trust altogether and get 50% of the estate after bequests for herself.
7. She denied that she was not present when Mr Manser visited her father shortly before he died. She denied that in fact Mr Manser had stayed with the testator, not for a few minutes but for an hour and a half, and she denied that she was not in fact present when Mr Manser spoke to the testator. She denied that Mr Manser initially spoke to her when he arrived for about 10 or 15 minutes and then spoke to her father alone for an hour.
8. Importantly, Tamzin denied that Mr Manser visited on the afternoon of Saturday, 22 July and not, as she maintained, during the afternoon of Sunday, 23 July.
9. She agreed that she had not included anything in her affidavit about raising any question of her father's capacity with Mr Manser, although she said that she had concerns. She said that she had raised questions about her father's capacity with David Morris when she contacted him to arrange Mr Manser's visit, but she accepted she had not mentioned that in her affidavit. She denied that she had telephoned Mr Morris on Saturday, 22 July 2006, as opposed to the Sunday.
10. Tamzin denied that she had gone to Simmons Wolfhagen on 21 July 2006 to pick up a letter dated that date written by Mr Manser or the unsigned July will that accompanied the letter. She said that she did not have a conversation with Stirling on 21 July 2006 about going to Simmons Wolfhagen to collect the will and giving it to her father. She said that Stirling had flown back to Melbourne on the afternoon of 21 July 2006 and had said to her that their father had had the will for a couple of days. She said that she did not know how long her father had the will because he could not tell her. She denied that she had said to Stirling after her father's death that it was lucky that he signed the July will when he did.
11. She also denied that she was not present when Mr and Mrs Ng attended the testator to witness his signing of the will. She denied that her father did not need assistance in signing the will in their presence. She denied that she rang Mr Manser on 24 July 2006 and told him that her father had signed the July will and had passed away.
12. In her statutory declaration made on 13 August 2015, a document prepared before she swore her affidavit, Tamzin accepted that she had not included details of the amounts of drugs that her father had been given, and agreed that those details were provided to her solicitors in a later email of 15 October 2010.
13. In cross-examination by Mr Turner, Tamzin revealed that she had kept a diary at the relevant time in 2006 and later in 2010 when she visited Mr Manser at his home on 26 May 2010 after he had retired, because her solicitor had advised her that she should not be trusting Stirling so much. She said that the visit was because she wanted to find out from Mr Manser "what had happened regarding writing of the will". She said the she made handwritten notes of her meeting with Mr Manser immediately she walked out of his door. When she arrived home she typed them up and she likely destroyed the handwritten version.
14. Tamzin had earlier agreed with Mr McTaggart in cross-examination that she did not raise with Mr Manser during that visit anything about her father's capacity to make the July will. She confirmed that in cross-examination by Mr Turner.
15. She told Mr Turner that she was concerned about her father's testamentary capacity on the day he signed the will, but she was of the belief that "the trust was still fifty-fifty". She said she continued to believe that until "Stirling said he would no longer be conciliatory" in October, November or December 2012.
16. Tamzin agreed that she signed documents to obtain probate of the July will as a valid will.
17. She told Mr Turner that she told a lawyer, Mr Toomey, "the history" in March or April 2010, and that he said "the will is set". (I infer from her answers at this point in her cross-examination that she had raised her concerns about her father's testamentary capacity with Mr Toomey when she first saw him, and that he told her it was too late to do anything.)
18. Tamzin agreed that there had been discussions about an en globo settlement with Stirling, and that the question of cloning the trust was considered. She said that she wanted "separation" from Stirling. It was put to her that whilst she was having those discussions with her brother through her lawyer there was no mention at any time of the July will being invalid because her father did not have capacity. Her answer was that she had been advised that "the will was set" and there was nothing she could do. I then intervened and asked her when it was that she was told for the first time that there was something she could do. She answered that she remained of the view that it was too late to do anything until she met her counsel, Mr McElwaine, in February 2015.
19. As to the proceedings she had filed against Simmons Wolfhagen for negligence, she said that she made a commercial decision not to proceed with the action because when she saw Mr Manser's diary notes she thought that they were illegible.
20. Tamzin was asked by Mr Turner about her independent recollection of the day of 23 July 2006 and she said that it was "minute by minute".
21. She was asked about the number of breakthrough doses she administered to her father from midnight on 23 July 2006 until she says Mr Manser arrived, and she said that it was five. She also said that there had then been an additional dose before she went to get Mr and Mrs Ng to witness the will.
22. She was then asked about the entry in her diary for 23 July 2006 which she had produced pursuant to a call for its production by Mr Turner. The following exchange appears in the transcript:

"And do you remember - sorry. Now you've written in the note in your diary 'must be fifty-fifty'........That's what Dad said.

Yes. Did you write that down at the time he said it?.......Ah yes, before I, when I called Murray [sic] so I knew what to ask.

And that was told you by your father at around about midday on the 23rd?......Yes.

And it's at about that time that he gave you the will?......Yes.

Which you were unaware of until that point?......Correct.

Okay. And you read it over the course of, I think you next discussed it with him at about 3 pm?.......Yes.

So over the course of that three hours you read it?........I had a look at it. I didn't understand it.

You'd seen the one from June 2006?.......Yes, I understood that one.

Yeah, and this had some additions in terms of the trustee and several clauses relating to the discretionary trust?.......A large number of clauses.

Is that what your father wanted asked of Mr Manser?........When can they be owners.

Yeah, that's something your father asked of you?........Yes.

Before Mr Manser arrived?......Before midday, about midday.

Which were, what, reminders for you of what to ask Mr Manser?.......Yes.

Which you did in the presence of your father?.......Yes.

In relation to the fifty-fifty?........Fifty-fifty, yes.

Your father, after the discussion with Mr Manser, wanted to sign the will?.......He didn't really - if I'd said not to, he wouldn't have.

Well why did you go and get Mr and Mrs New to witness it?........Because Mr Manser said it was okay for him to sign and Dad was still agitated and I didn't know what to do.

And you went over and got them some time after 5pm?.......I waited another couple of hours because I wasn't sure what to do. I'd given Dad an additional dose. He was very agitated. I couldn't get any more information out of him. I'd said to him 'I don't know what to do', and I wasn't getting any information back."

1. Tamzin was then further cross-examined by Mr McTaggart about her 2006 diary.
2. She was asked about her entry for 23 July 2006 being in pencil. The following was the exchange recorded in the transcript:

"And back on the 23rd of July when you say you made the entry, it must have been fairly significant for you to record it. You must have thought it was significant?......I wrote down must be the fifty-fifty when they can be owners because I called Morrie and I had to make sure I put down what the conversation was, that was important.

It was important to you at the time, wasn't it?......Yes.

But you wrote it down in pencil?......Quite a few of my diary notes are in pencil. Throughout the diary there's pencil and biro, it's whatever I pick up at the time.

Well, I've only got a snapshot of your diary but if you go forward in your diary are there anymore entries in pencil through to - ?......Of the rest of my diary?

No, no, it's through to the 30th of July?......There's two more entries, they're both in biro.

Biro, yes?......I just pick up what's next to - available."

1. She was also asked about the circling of the date 23 July and the writing occupying the diary space available for both Saturday, 22 July and Sunday, 23 July. The following exchange appears in the transcript:

"Now this entry on the 23rd July, you've circled 23?.....Yes.

But that's not something you've done on other weekends, is it? If you go forward to the 29th and the 30th July, you didn't circle the 29th?.....No, because the notes went across. The Saturday, the Sunday of the diary are half the size, you can't - there wasn't enough room to write it all in.

And you didn't circle the 1st and the 2nd of -......1st and 2nd of what, sorry?

Probably August, the way it's stapled for me......Sorry, do you mean July?

Have you got an entry there for the 1st August, 'Return to Hobart 4:00 p.m. sixty nine dollars'?........Yes, that was the 1st July -

Thank you.......- because it only - to the Saturday, it didn't go across both."

1. Tamzin was asked about the nature and contents of the diary. It was put to her that even though there was a diary to record medical matters relating to her father, there was no record on 22 July for the visit of Dr Vidor. She agreed. It was put to her that there was no reference whatsoever to the commencement of the syringe driver. She agreed but added that there was a drug chart. She agreed that the "font" for the entry for 23 July was similar to only a couple of other entries, and she agreed that her entry for 23 July was the only entry of a descriptive nature, that is, where she had purported to record what someone had said.
2. Tamzin was re-examined by Mr McElwaine.
3. He directed her attention to a part of the transcript where Mr McTaggart had asked her about an email from her to Stirling of 19 October 2010 where she was expressing to Stirling circumstances in which she would not get any benefit from the Testamentary Trust, and she agreed that at that time she had not applied to challenge the capacity of her father to make the July will. Mr McElwaine asked her why she had not done so and she replied that she had already been orally advised by Patrick Toomey, of lawyers Toomey Maning & Co, in March or April 2010 that she "was out of time" and that "the will was set".
4. Mr McElwaine then directed Tamzin's attention to her affidavit in the Testator's Family Maintenance Act proceeding, and referred to Mr McTaggart's questions of her as to why in par 32 of that affidavit she had not referred to the details of the events of the day of 23 July 2006 as she did in her affidavit in the current proceeding. She explained that she had included in an earlier draft of the earlier affidavit a couple of pages about what had happened on the last day in the events leading up to the signing of the July will but that she had deleted it on Stirling's instruction to her that, "We don't need all this detail, we know that the will is correct and it's not relevant to the TFM action". She said that at that time they had a barrister whom Stirling had engaged, Mr Richard Phillips in Melbourne, and that Stirling was dealing directly with him. Tamzin said the redrafted affidavit went to Stirling and then Stirling forwarded both his affidavit and hers together to Mr Phillips.
5. Tamzin was recalled later in the trial to give further evidence on this topic.
6. In her further evidence-in-chief she said that after she had sent a draft of her affidavit Richard Phillips, and had received some advice from him to include something about the writing of the July will, she had written a couple of pages on that subject "as a side document". She said that then, after discussions with Stirling about the relevance of what she had written, those pages were condensed down "essentially summarising ... that Mr Manser had visited and advised that the will was correct".
7. She was cross-examined by Mr McTaggart about the second version of her affidavit and accepted that at the "very end" her father might have asked her to fetch the July will but she denied that any of the words she used conveyed that she had collected the will from Simmons Wolfhagen on Friday, 21 July, or that she knew the whereabouts of the will after it was collected.
8. She accepted that there was no reference in any of the emails between her and Stirling and Richard Phillips to the couple of separate pages to which she referred. She said that there was no need for them to be referenced.
9. Tamzin was also further cross-examined by Mr Turner.
10. She agreed with Mr Turner that she was familiar with the terms of the June will and that she knew that by its terms the property at 88 and 94 Kennedy Drive passed equally to her and Stirling. And she confirmed that at the time the July will was signed by her father she knew that under its terms 88 and 94 Kennedy Drive would not pass to her and Stirling, but had become the subject of the Testamentary Trust.

1. The next witness called was the testator's former general practitioner, Dr Alan Vidor. The relevant parts of Dr Vidor's affidavit which formed his evidence-in-chief are as follows:

"7 I was Peter Hookway's general practitioner for more than two years. I remember Mr Hookway very well. I cared for him during his battle with prostate cancer and his subsequent demise. This included the terminal stages of his illness up until his death.

8 I am unable to make a retrospective assessment of Mr Hookway's capacity to make and understand his will on the late afternoon of 23 July 2006. Such an assessment would require specific questioning at the time to ascertain his awareness and understanding of the decisions and issues involved in making this will. I was not requested to make an assessment at the time and cannot do so in retrospect.

9 Despite this, I do have significant concerns regarding his capacity at that time, for the following reasons.

10 To try to maintain comfort and ease pain and agitation during the terminal phase of Mr Hookway's illness he was receiving significant doses of opioid and benzodiazepine medication.

11 On the afternoon of 23 July 2006 Mr Hookway was receiving Fentanyl (a powerful opiate medication) by a 150 microgram skin patch.

12 At that time Mr Hookway was also receiving a continuous subcutaneous infusion of the opiate medication morphine (30mg over 24 hours) and the benzodiazepine medication midazolam (30mg over 24 hours).

13 In addition to these medications, he was written up to be administered additional medication if required for breakthrough or uncontrolled pain or agitation. This was morphine 15mg and midazolam 5mg administered subcutaneously.

14 Tamzin Hookway says in her affidavit that Mr Hookway required breakthrough doses of these medications shortly before the signing of the will.

15 Fentanyl, morphine and midazolam in the doses prescribed all have the capacity to cause drowsiness and impair cognition. Drowsiness and impaired cognition are even more likely to occur when they are used in combination, as was the case with Mr Hookway.

16 I visited Mr Hookway at his home on 22 July 2006. He was in a very frail and weakened state and approaching death. He was extremely tired and lethargic and had very little energy.

17 I am concerned that in the condition he was in on 22 July 2006 Mr Hookway was not clear in his thinking or would be vulnerable to outside influence in his decision making."

1. Dr Vidor was cross-examined by Mr McTaggart. Prior to that Mr McTaggart had raised an objection to Dr Vidor's use of the words "significant concerns" and "concerned" in pars 9 and 17 respectively of his affidavit. Mr McElwaine asked Dr Vidor, "Where you say 'significant concerns' in ... paragraph 9 and 'concerned' at paragraph 17 are you putting that forward as your professional opinion or something else?" Dr Vidor answered that it was his "professional opinion".
2. Dr Vidor agreed that because his former medical practice had been dissolved, with the result that the testator's medical records kept by him were no longer available, his affidavit had been prepared by him without the benefit of any contemporaneous note that he had made of his attendances on the testator, and that it was based on his memory and also the notes from the Palliative Care Service that he had read.
3. He agreed that he had been first asked for his opinion for the purposes of these proceedings on 12 February 2016. He agreed that the source of his information as to what occurred on 23 July 2006, and as to when breakthrough medication was administered, was Tamzin.
4. It was suggested to Dr Vidor that the fact that the testator was capable of consenting to the commencement of the syringe driver on 22 July, the fact that he was apparently capable of clearly articulating his preference between cremation and burial in a conversation with Tamzin on that day, and the observations of Mr Manser in his affidavit as to his conversation with the testator on 22 July, assuming all that to be correct, would allay any concerns he had about capacity on 22 July. Dr Vidor's answer was that it would not affect his views on capacity once the syringe driver medication was commenced because syringe driver medication is provided generally towards the very end of a person's life to provide what is called terminal sedation.
5. Dr Vidor was then asked further whether, given Tamzin in her affidavit had said that her father was fine overnight, the night of 22 July, and the early hours of the morning of 23 July, and it was later in the morning on 23 July that things started to change, that would allay any concerns Dr Vidor might have about capacity on 22nd July. He replied that he would still have concerns about capacity because the agreement to have the syringe driver started was very different to making difficult complex decisions.
6. It was pointed out to him that the testator had already had the syringe driver started, and that "medication was on board and he'd had a good night and he was the same the following morning" according to Tamzin's evidence. He replied, "As I say, I didn't see him at that time, I can't attest to his capacity, all I can say is that I have significant concerns because of the circumstances."
7. Mr McTaggart suggested that Dr Vidor was not proffering any capacity opinion, but simply saying he would have concerns. He agreed that was correct.
8. The following exchange concluded Dr Vidor's cross-examination by Mr McTaggart:

"And those concerns are in relation to the 23rd July based on what you're told by Tamzin Hookway about her father's condition?.....They're based on my assessment of - as far as my memory goes, of Peter on the 22nd, that he was in a very weakened and frail state, he was receiving medication which could be sedating and affect cognition and he was also, I thought because of his frailty, in a position where he would be at risk of the power of suggestion or compulsion.

Well in relation to any deterioration on the 23rd July are dependent on what Tamzin Hookway told you?.....As far as the 23rd July I did not see Peter that day, I cannot attest to his state on that day.

And when you saw him on the 22nd July he had the capacity to consent to the commencement of the syringe driver?.....He had the capacity at that time to tell me that he was in pain and that we could relieve his pain."

1. Dr Vidor was then cross-examined by Mr Turner.
2. Dr Vidor agreed that insofar as the day of 23 July 2006 was concerned his opinion was, "I don't know if he had capacity or not, but I have some concerns about whether he did or not."
3. He was asked if it was the same for 22 July and he replied:

"I believe again on the 22nd, as I have stated in my affidavit, that he was in a very weakened and frail state. He was at that time still receiving medication that could - can affect cognition and I would have concerns about the 22nd also."

Mr Turner retorted, "Yes, but again [sic] can't say whether he did or did not?" and Dr Vidor's answer was, "I can't say for certain, no."

1. The next witness to be called was Professor Michael Ashby.
2. Professor Ashby is a Consultant in Palliative and Pain Medicine practising in Tasmania, and is the Professor of Palliative Care at the University of Tasmania.
3. In the affidavit that formed Professor Ashby's evidence-in-chief he stated:

"2 I have been asked to provide my opinion concerning whether or not the late Peter Hookway (referred to hereafter as 'the deceased'), was of sound mind at the time he made his will on 23 July 2006; ie that he:

a could understand the nature and effect of that will;

1. could understand the nature and extent of the property being disposed of by that will; and

c could comprehend and appreciate the claims to which he ought give effect;

1. was suffering from no disorder of the mind that would result in an unwanted disposition."

1. Professor Ashby expressed the opinion that the testator, "on the balance of evidence supplied" to him, lacked the mental capacity, was not of sound mind, and was therefore incompetent to sign his revised newly drafted will on the evening of 23 July 2006.
2. He stated that his opinion was based on observations of:

"a his General Practitioner, Dr Ted Vidor, as contained in an affidavit sworn 14 December 2015, a copy of which is annexed and marked 'MA-2' and the substance of which is also contained in a letter dated 4 May 2015, a copy of which is annexed and marked 'MA-3';

b a close family friend Maxwell Simons, as contained in an affidavit sworn 14 December 2015 a copy of which is annexed and marked 'MA-4' and the substance of which is also contained in a statement dated 17 June 2015, a copy of which is annexed and marked 'MA-5'; and

c the main family carer, his daughter Tamzin, as contained in an affidavit sworn 14 December 2015 a copy of which is annexed and marked 'MA-6', and the substance of which is also contained in a statement dated 13 August 2015 a copy of which is annexed and marked 'MA-7' and an email dated 15 October 2015 a copy of which is annexed and marked 'MA-8'."

1. Professor Ashby said that the observations on which his opinion was based pertained to the level of exhaustion and impaired cognition, which given the proximity to the time of death, which he thought initially was some three to four hours, but later accepted could have been more, indicated that the deceased was affected by a terminal delirium.
2. The professor detailed the drugs and doses administered to the testator reported on the last day of his life, and said that it was standard practice, and within prescribed limits, but he said that the level of the additional "breakthrough" medication administration was at the upper end of the range prescribed, and was therefore indicative of acute and rapid deterioration, suffering and the onset of fairly severe so-called "terminal" restlessness commonly seen as death approaches. He went on to say that against the 24 hour background infusion dose, the additional "breakthrough" medication would inevitably lead to increased drowsiness and slower cognition, but importantly, he said that conclusive attribution of relative causal contribution to cognitive state of specific drugs or physiological failure processes is difficult in the terminal phase.
3. He said that delirium is very common as death approaches, and treatment with sedation is frequently needed, and that some degree of cognitive impairment is almost universal and is associated with profound fatigue and disengagement as life forces drain and the dying person detaches from the world around them. Professor Ashby said that end organ failure occurs as body systems fail, particularly as kidney and liver failure progresses and the body's normal elimination of toxins, including drugs, decreases and ceases altogether.
4. Professor Ashby was cross-examined by Mr McTaggart.
5. As already noted, it was pointed out to the professor that his three to four hour estimate of the time between the signing of the will and the testator's death may have been a little too short, but he said that he did not think that the timing of the will was critical to his opinion. He said that was because, from a medical point of view, the processes he had referred to were occurring over many hours. He said that he thought from the evidence that he had commented upon that the process was playing out over most of the day of 23 July 2006.
6. Professor Ashby was asked whether it would have been relevant to his opinion to know that as at 18 July the testator was alert and capable of concentrating and having a discussion. That was a reference to Dr Dunne's affidavit which stated that he had seen the testator on that day. It subsequently transpired, as will be seen, that Dr Dunne was in error, and the conversation that he had had with the testator was on Friday, 14 July 2006. In any event, in answer to the question as asked of him, Professor Ashby said that it would not have altered his interpretation of the evidence presented to him when he made his affidavit.
7. Professor Ashby was asked to note that Dr Dunne had referred to the affidavit of Mr Manser, and that Dr Dunne had opined that, based on the contents of that affidavit being correct, then his observations regarding the testator having capacity on 18 July 2006 were still pertinent on 22 July when Mr Manser saw him. Professor Ashby was asked whether he would agree with Dr Dunne's observations, assuming that the contents of Mr Manser's affidavit were accurate. The professor answered that he was not in a position to agree or disagree, but added that given Dr Dunne was a clinician on the ground and that those were his recollections of his care for his patient, then they would have very high standing both in professional terms and for this Court.
8. Professor Ashby was asked about Dr Vidor's evidence. It was put to him that it was not an observation of Dr Vidor on 22 July that the testator was not thinking clearly, but rather that Dr Vidor had just expressed that as a "concern", whereas Professor Ashby had noted it in his evidence as an "observation". He was asked whether that had led him into an error in his, Professor Ashby's, opinion. He answered that he did not believe that it had, that he accepted the distinction and the fact that it may make a difference, but he said that it did not make a difference to his conclusion.
9. It was put to him that the morphine opioid dose would be unlikely to have had a significant additional effect on mental capacity and he agreed, but there then followed this exchange between the professor and Mr McTaggart:

"In general terms, do I understand, in your opinion, that it's really the dying process which is possibly presented some cognitive issues rather than the medication?......Absolutely. I think both factors can potentially be operating and the problem is that empirically to find out is extremely difficult. What I would say is that the - the dying process and the last day of life for people dying of cancer is very frequently along the lines of the observations submitted to me in evidence and seen in other parts of the evidence here in this case, it's entirely consistent with that kind of course, in which one of the main features is a disturbance of organic brain function and eventually coma. Medications certainly can have an effect and I'm - I - I hope I haven't conveyed the impression that I think that they're of no importance, but in my practice I frequently see people who need escalation of medications in the dying process who still may have fluctuating capacity. And so, what I'm saying is the - those doses don't, of themselves, tell me that he would lack capacity but they may be an ingredient in it. But from my reading of the case, given that he'd been on opioids for a long while and that's the sort of nought to sixty argument that if you - if the brain encounters a sudden large dose of a new drug or a sudden step-up in dose of an existing drug, particularly the morphine family, then you will get confusion, you will get drowsiness, you'll get drowsiness at the very least. And what I'm saying here is I think the transition was a reasonable one in the circumstances, it was actually done by the Palliative Care Service of which I am a part and of which Dr Dunne was a former director, and I'm saying those kind of dose escalations and steps on the day of a person's death are within accepted medical practice and would not necessarily, of themselves, lead to a sudden loss of capacity or a loss of capacity at all."

1. Professor Ashby was asked whether it would be the case that, if the testator practised his signature on a spare piece of paper before he signed the July will, that would indicate to the professor that the testator understood the significance of what he was signing. He answered that, having been present at similar events in his own practice from time to time, he suspected it was indicative of the level of frailty, both mental and physical.
2. He was asked whether it was also consistent with the testator understanding the significance of what he was about to sign as well. He answered:

"No, I don't believe it has any bearing on his understanding of the significance. I think it just indicates that he's been, he's having a document put in front of him to sign and because of his frail state both physical and again mental because of course obviously writing a signature requires both the cognition and the motor function, both were on the line, the person administering the signature obviously felt that he needed assistance to practice the signature, and that would be common practice for a very sick person. So I think it's indicative of frailty and I don't think it gives any insight into his state of mind."

1. Finally he was asked whether he thought that any insight could be gained from that as to how significant the testator thought the document was. Professor Ashby answered in the negative.
2. Professor Ashby was then cross-examined by Mr Turner.
3. After an exchange between Mr Turner and me as to the essential questions posed by Professor Ashby on the first page of his affidavit, as set out above, as going to "sound mind", Mr Turner put to the professor that in the context of what had just been discussed, he could not say whether the testator was of sound mind on 23 July 2006 at the time of the signing of the will. Professor Ashby's answer is of importance and warrants setting out in full. It was as follows:

"No, no, okay. But those were my understanding of the criteria for the signing of a will and as I do get involved from time to time in these matters, those were my understanding of the key factors that lawyers had to apply when receiving instructions for signing wills. With regard to the specific answer to your question I wonder if I'll answer it in this way, I hope it will be helpful. I've acknowledged, and the reason that I put some of this literature in here for the Court is to indicate, as I'm sure you are all aware, that the whole issue of capacity, particularly with the rising dementia epidemic, is a contested field and that there is a strong view now that it is a fluctuating function. It can vary with time. It can be affected by a number of physiological and pharmacological influences, and also that the degree of capacity, if you could measure it on a scale that you require to order a cup of tea or ask for a chair to sit down, is different to that of disposing of your estate and the potential effect on your children. With that in mind, can I say, you know, with the balance of probability required in a Court, that at that particular moment when that will was signed, assuming when it was, when the witnesses say it was on the 23rd, can I say that categorically that he had capacity or not at that moment, no, I can't, but what I can say is on the balance of probabilities, viewing the evidence that was presented to me when I made the affidavit, that I believe I should advise the Court that it is unlikely that he would have understood what he was signing. That he could, for instance, have answered those three questions if they'd been posed to him." [Emphasis added.]

1. He was then asked if he was able to say whether the testator would, more likely than not, have been able to understand that it was his will. Professor Ashby answered that it was possible that the testator may have recognised it as his will.

1. Mr Simons was a close friend of the testator and one of the original four executors and trustees of the July will. Mr Simon's evidence-in-chief is taken from his affidavit. He stated, relevantly:

"8 I last saw Peter on Sunday 23 July 2006. I visited him at his home at 451 Churchill Ave that afternoon as I wanted to spend some time with Peter knowing there was very little time left for him, and I stayed until he went to bed at approximately 8pm.

9 I knew Peter didn't want to die but he seemed to always be in terrible pain and said it was all too much for him.

10 During my visit on 23 July 2006 I spoke with Peter; he seemed to be 'not with it', appeared to be in a lost world, he seemed dazed and was making comments which were unlike him.

11 He said 'I should give you a million dollars to have a gamble on the horses,' and other comments like this which were not like Peter.

12 While I was visiting Peter, a lawyer arrived at approximately 4.30pm and had a brief discussion with Tamzin and Peter. The lawyer was only there a brief time, about 10 to 20 minutes, and I do not recall him saying much.

13 I did not get involved with that discussion; I was chatting with Rene in the adjoining room.

14 I saw Sam and Albert Ng come over to Peter's house a couple of hours after the lawyer left, and witnessed the signing of Peter's new will.

15 Immediately after the will was signed, Tamzin said to Peter that she wanted him to have a rest; I saw her help Peter to bed, and she suggested I say good bye before she gave him some more pain killers with a needle.

16 I said goodbye and left Peter's house at approximately 8pm.

17 Tamzin telephoned the next morning to let me know that Peter had died shortly after midnight and had not regained consciousness after he had gone to bed."

1. Mr Simons was cross-examined by Mr McTaggart.
2. He said on Saturday, 22 July 2006, he had visited the testator in the afternoon from probably about half past twelve to about five o'clock watching horse racing on his television.
3. Mr Simons said that he did not recall the testator having any visitors that day while he was there. Specifically, he said that if Mr Manser came to the testator's house on 22 July and not 23 July as Mr Simons had said in his affidavit, then he, Mr Simons, did not see him.
4. He said that when the solicitor (he subsequently said that he did not know Mr Manser), visited, he, Mr Simons, left the room where he had been sitting with the testator and went out on to the verandah with the testator's wife.
5. It was not put to Mr Simons that the person he understood to be the solicitor and who spoke with the testator for about half an hour he thought, had not visited on the same day as Mr and Mrs Ng and within a couple of hours of each other as described by Mr Simons in his affidavit. I would find Mr Simon's unchallenged evidence as to that combination of events decisive of any contest between his recollection as to the day on which Mr Manser visited, and Mr Manser's file note prepared by him on Monday, 24 July 2006. However, as will be seen, I do not find the question of the day on which Mr Manser visited the testator as of dispositive significance in relation to the question of testamentary capacity.
6. Mr Simons agreed that he had first been asked to recall the events of 23 July when he was asked to do so by Tamzin a week or two before he drafted a statutory declaration for her on 17 June 2015.
7. Mr Simons was asked whether his memory had faded since July 2006 and he answered, "Not with Peter I didn't, no." On being pressed as to whether there had been some fading of his memory since July 2006 he replied, "Oh yes, well that's only understandable I think."
8. He was asked whether he was completely dependent upon his memory to recall those events and he answered, "And my wife." He explained that certain things that he had written in his statutory declaration he had checked with his wife and he said, "She said, 'Yes, you did say that, you come home and said this and this, and this person arrived in the room.'"
9. Mr Simons was cross-examined by Mr Turner.
10. He was asked about the events of the afternoon of Saturday 22 July 2006 and he said:

" ...I don't even think Peter really bet much that day, if he did. He was just sitting in the chair watching and sometimes I was watching a race and I'd turn around and his eyes were sort of half asleep and then he'd sort of open them up ... and he couldn't get very comfortable, he was always cold. He sort of had a blanket over him. He was a bit uncomfortable I think or a bit cold."

1. He was asked if they were discussing the races and he said:

"Well when, he wasn't saying, putting a lot of input... he wasn't talking a lot, but he was watching, but I was saying things to him 'I like this horse or I like that', and he just sort of a bit of a, he was there and he was interested but only on and off."

1. Dr Jackson is a pharmacist who has an active private consulting practice which largely specialises in providing medication reviews to consumers who reside in aged care facilities. He has significant expertise in geriatric medicine, and regularly provides advice to general practitioners on the impact that medications can have on the elderly.
2. Dr Jackson had been asked to provide his opinion on the impact which the testator's medical state and his medications may have had on his ability to understand the nature and effect of the July will.
3. He had been provided with the following documents:

(c) the palliative care notes from the Tasmanian Department of Human Services, and

(d) the affidavit of Tamzin Hookway sworn 14 December 2015.

32 Based on the information provided to me, I would be concerned that there was a real and likely possibility that Peter Hookway may not have understood the impact of his will signed on the 23rd July 2006. It is likely that he lacked insight into the content and impact of that Will that was signed in the hours leading up to his death. This impairment is likely to have had been contributed to by many components, such as his impaired cognitive reserve, possible delirium and the probable side effects from the opioid medication, morphine.

33 It is therefore my view that there is enough concern regarding his medication use and presenting medical issues on the 23rd July 2006, that they are likely to have had some impact on his cognition to render him impaired in fully understanding the likely impact and outcome of the Will he signed on the 23rd July 2006."

1. Dr Jackson was cross-examined by Mr McTaggart.
2. He agreed with the proposition that his opinion was that the medications that the testator was taking on 23 July had some possible effect upon his cognitive state.
3. Dr Jackson agreed that Professor Ashby's evidence was that, in his opinion, the dying process could also have had some impact on the testator's cognitive state, and he said that he understood that and agreed with the professor's opinion.
4. And Dr Jackson agreed with Professor Ashby's opinion given in evidence that it is difficult to tease apart whether it is the dying process or the medication which may have had some effect on the testator's capacity
5. Dr Jackson was asked about Professor Ashby's evidence concerning the drugs delivered by the syringe driver the testator was utilising. Dr Jackson said:

"The syringe driver dose conversion, in my view, was appropriate and modest, but the point being that he was naïve to morphine and - if I can explain that - different opioids act on different opioids receptors in the body and there's different opioid receptors sub-types within the body, and those different opioids can affect those different opioid receptors differently and so, by changing the type of opioid that's used you increase the sensitivity of the body to that opioid. So, whilst it mightn't be the morphine itself that had effect on his mental capacity I believe that in some respects the metabolites that were, you know, your body changes morphine to - in the liver to glucuronide metabolites and then it excretes them through the kidneys and it's those metabolites which can often cause problems, which I note that Dr Ashby hasn't mentioned."

1. Following that answer, Mr McTaggart put to Dr Jackson as a proposition that all he could say is that the possible transition to morphine as a different opioid may have possibly had some effect on the testator's cognition. He agreed that that was correct.

1. For present purposes it is sufficient to set out the following passages of the affidavit evidence that formed Stirling's evidence-in-chief:

9 My father first raised the issue of wanting to leave a significant portion of the Estate to his grandchildren in around May 2006. In my discussions with him he told me his reasons for wanting to do so was so that that wealth could not be touched by spouses or partners of his children and further if poor investments decisions were made by either Tamzin or myself that there would remain a significant fund to support his grandchildren.

10 In May 2006 my father asked me to investigate ways in which he could give effect to his wishes. The potential options considered by my father and I included the testamentary trust, a direct gift of the land to the grandchildren or setting up a company to hold the land for the legacy of the children.

11 In the discussions with my father regarding the various options he selected the testamentary trust option as his preferred course. He decided however not to do anything about that until a sale to Prudentia was confirmed and unconditional. Without that land sale my father considered that he didn't have the means to create such a legacy.

12 From 6 June 2006 I went to live in Hobart for an extended period of around five weeks. At this time I was ordinarily resident in Melbourne but travelled regularly to Tasmania to assist my father in the running of the family businesses.

13 During the five week period business matters were discussed regularly in particular the land sale to Prudentia. My father was concerned that if this sale fell through, there were no other potential purchasers and his lender was becoming concerned at my father's inability to service the debt going forward.

14 Notwithstanding my father's terminal illness he remained engaged and interested in business matters.

15 During this period the 13 June 2006 Will was prepared and executed. The June Will was prepared with the assistance of Bert Wicks a retired lawyer. My father made notes as to his wishes and I typed it up for him. A copy of that Will is exhibit 'SMH-10' to my earlier affidavit. The Will was signed on 13 June 2006 and witnessed by Albert and Samantha Ng who were neighbours.

16 My father told me that whilst he was keen to create a testamentary trust for the benefit of his grandchildren as at 13 June 2006 he wanted to update his will in case anything happened to him whilst the Prudentia sale was uncertain.

17 The concept of a trust was however introduced into clause 11 of the 13 June Will. That clause provided as follows:

'I give, devise and bequeath the residue of my Estate to Tamzin Peta Hookway and Stirling Mathew Hookway in equal shares. As Executors they have full powers to set up a Trust in their names and the names of their children for any or all of these assets, and to sell, or to delay the sale of particular assets if they think it appropriate.'

18 On 13 June 2006 Prudentia contacted me to verbally advise that they intended to proceed with the purchase but would not sign a contract until July. On relaying this information to my father he asked me to contact Ian Creese to discuss the Prudentia contract and for Ian Creese to draft the testamentary trust.

19 I called Ian Creese who said he wasn't qualified to write such a clause and referred me to Peter Manser at Simmons Wolfhagen. I made a note of this in my diary on 13 June 2006. Annexed hereto and marked with the letters 'SMH-A' is a copy of my diary entry for 13 June 2006.

20 On 15 June 2006 I had a meeting with Peter Dobson of WHK Dennison accountants about the testamentary trust, the Prudentia contract and tax returns. A note of that discussion is in my diary on that day. Annexed hereto and marked with the letters 'SMH-B' is a copy of my diary for 15 June 2006. Prior to that meeting I listed the topics my father requested I discuss with Peter Dobson (in blue pen). During that meeting I took notes in black pen. It was during this meeting that Peter Dobson introduced me to Richard Cooper whom he had chosen as my main point of contact going forward.

21 ... After the Prudentia settlement I met with Dad and gave him the cheques and other settlement documentation. Dad asked me to see Peter Manser straight away to get the Testamentary Trust underway and I arranged a meeting for the following day.

22 On 4 July 2006 I attended a meeting with Peter Manser at Simmons Wolfhagen to get advice about discretionary trusts. Prior to that meeting I discussed with my father the matters to be raised with Peter Manser. My father was concerned that putting the land into a Testamentary Trust might create a massive stamp duty burden. My father wanted to know if he had to explicitly state for what purposes distributions could be made to the beneficiaries, he wanted to ensure it wasn't going to be used to spoil them. My father was averse to paying tax and wanted to know why they were taxed as adults. My father also wanted to know when the trust would end. I made a note of these questions in my diary during the discussion. Annexed hereto and marked with the letters 'SMH-C' is a copy of my diary entry for that day. The note of my discussion with my father reads as follows:

23 I met with Peter Manser on 4 July 2006. I made notes of my discussion with Peter Manser during the meeting in my diary. The diary entry reads:

 middle part of will is a series of administrative directions

 beneficiaries are loosely defined, have no power of control

Peter Manser discussed with me how a Testamentary Trust works and what is required to set it up. He indicated he was not accepting any responsibility for the rest of the Will as it had not been prepared by him or his firm and that he would only be inserting a Testamentary Trust clause. I recall he did make some suggestions regarding the rest of the Will. He asked me how soon this needed to be prepared and I said as soon as possible.

24 I returned to Churchill Avenue and spoke with my father and discussed what I had learnt in my discussions with Peter Manser. It was a detailed discussion with my father and we went through all of the options and considerations of setting up a trust. My father indicated he was pleased that the Testamentary Trust mechanism suited his requirements very well and also provided for generations beyond his grandchildren. Prior to this my father had not mentioned generations beyond his grandchildren. My father did not indicate any need for an additional letter to the trustees and wanted his Will to provide all the instructions. My father wanted to leave all his land at Cambridge to the Trust. He told me he understood his options and asked me to write a letter of instructions to Peter Manser. He instructed me what he wanted included in the letter.

25 On the morning of the 5 July 2006 I showed my father the draft of the letter to Peter Manser requesting a discretionary trust for his Will. The letter was corrected / amended and a final version was prepared. My father read the letter carefully. My father then signed it and I faxed it to Simmons Wolfhagen.

26 The letter of instruction is exhibit 'SMH-2' to my earlier affidavit. The trust assets are identified in that letter were lot 3 and 4 of SP146586 and his 50% share of lots 5 and 6 of SP146586. I believe the reference to lot 3 & 4 should have been 3 & 6 and the reference to lot 5 & 6 should have been 4 & 5. The holdings provide that lots 3 and 6 of the land in question were to be held 50% for my children and 50% for Tamzin's children. With respect to lots 5 and 6 they were to be held 100% for my children. I believe the reference to lots 5 and 6 should have been to lots 5 and 4. The land had only just been subdivided and my father was not familiar with all the title numbers.

27 On 6 July 2006 Peter Manser called me to discuss multiple subjects, including but not limited to lot numbers of titles, clarification about the land holdings, Hookway Aerospace Pty Ltd leasing, concern about there only being three grandchildren and the possibility the Will could be intestate should something happen to all three, his concern that there should be more than two trustees. I made a note of that discussion in my diary during the call which reads as follows:

 intestate, residue clause or other to avoid 3GC problems

Annexed hereto and marked with the letters 'SMH-D' is a copy of that note. I discussed all the above with my father the next time I saw him after the call. My father did not appear concerned about the intestate concerns that Peter Manser raised. My father did subsequently discuss with both Tamzin and myself the possibility of additional or alternate trustees and I recall it was decided that it was not necessary.

28 11 July 2006 was my father's 69th birthday. A gathering of people attended the family home that evening including Renee Reinisch, my wife Abi and our children Monique and Damien, Tamzin and her daughter Hannah, Max Simons, Matthie Simons, Graham McLeod and June McLeod. There may have been other people there however I do not recall.

29 On 12 July 2006 I had a telephone conversation with Peter Manser during which he asked me to email him a copy of the existing Will. Annexed hereto and marked with the letters 'SMH-E' is a copy of the diary entry on 12 July 2006.

30 On the evening of 12 July 2006 after a discussion with Dad I emailed Peter Manser with revised instructions from my father with regard to the parcels of land to be included. Annexed hereto and marked with the letters 'SMH-F' is a true copy of that email.

31 On 13 July 2006 I returned to Melbourne with my wife and children.

32 On 14 July 2006 I received a telephone call from my father who asked for an update about the drafting of the Will. I advised my father that I had not heard from Peter Manser and that I would follow up with Peter Manser on Monday 17 July 2006.

33 On 18 July 2006 I returned to Hobart. My father had telephoned Peter Manser earlier that day to discuss the Will. He advised Tamzin and I of that telephone conversation and of his request that two additional trustees be added being Russell Hookway and Max Simons. I recall that he was standing at the entrance to the TV room when he told us both. Tamzin and I were both surprised at this news.

34 My father and I continued to discuss business matters and in those discussions he was coherent and responded appropriately to and therefore appeared to understand what was being discussed. Items being discussed included

a what fencing needed to be constructed pursuant to the Prudentia sale contract

b cleaning out a barn full of scrap metal that was on the land sold to Prudentia

c leasing land to Rhonda Hall and a local sheep farmer

j Acquisition of neighbouring land at Cambridge owned by Bob Howlett

1. Relocation of a pile of clay that was over the new boundary where a fence needed to be constructed - Dad remembered a local oyster farmer had approached him to buy it some time back

n The Reynolds Lease of the centre part of the Cambridge building

• and the sale of the tracker aircraft which I discussed with my father on the morning of Friday 21 July. He advised me that Floyd Stillwell had agreed to pay US$250k per aircraft.

I made a note of matters to discuss with my father in my diary on 18 July 2006. Annexed and marked with the letters 'SMH-G' is a copy of my diary entry for 18 July 2006. We discussed these matters in the period of 18 to 21 July 2006 whilst I was in Hobart.

35 On 20 July 2006 I forwarded a further email to Peter Manser with yet another correction to the title number for the land to be included in the testamentary trust. Annexed hereto and marked with the letters 'SMH-H' is a true copy of that email.

36 On 21 July 2006 as I stated above was the last day that I saw my father as I returned to Melbourne in the afternoon.

37 On 21 July 2006 I received a call from someone at Simmons Wolfhagen (a lady I believe) to advise me that the Will was ready for collection. As I was flying out that afternoon I asked Tamzin to go to the offices of Simmons Wolfhagen to collect the Will and give it to dad.

38 I did not see the letter nor the draft of the Will before it was executed by my father. I did not have a further discussion with him about the Will after I left Hobart on 21 July 2006. I only became aware that the July Will had been executed when I spoke to Tamzin after dad's death. She said words to the effect that it was lucky that he signed it when he did."

1. The letter from the testator to Mr Manser dated 5 July 2006 is attached to these reasons as Attachment C.
2. The email from Stirling to Mr Manser of 12 July 2006 is attached to these reasons as Attachment D.
3. The letter from Mr Manser to the testator dated 21 July 2006 is attached to these reasons as Attachment E.
4. Stirling's affidavit evidence-in-chief also went on to deal with Tamzin's affidavit evidence. He stated:

39 ... He told me he was very keen to sign a new Will which provided for his grandchildren now that he had been able to complete the significant sale of the land to Prudentia.

40 I told my father of the legal and accounting advice which was to create a discretionary trust and that the trustees would decide what distributions were made. He told me he understood that to be the way in which the testamentary trust would operate.

41 Tamzin and I were involved in a number of discussions with my father about his Will.

42 Probate of the July Will was taken out by each of the four named Executors in that Will being Russell Hookway, Maxwell Nicholas Simons, Tamzin and I. An affidavit in support of the application for probate was sworn by each of the Executors, including Tamzin. Annexed hereto and marked with the letters 'SMH-I' is a copy of that affidavit.

43 By a Deed of Retirement of Trustees dated 18 December 2008 Russell Hookway and Maxwell Nicholas Simons retired as Executors and Trustees of the July Will. Annexed hereto and marked with the letters 'SMH-J' is a copy of the Deed of Retirement of Executors and Trustees.

1. made bequests to the parties identified in the July Will including payments of money and distribution of furniture and alcohol;
2. have defended Testator's family maintenance proceedings commenced by Renate Reinisch, opposing those proceedings which were ultimately settled by agreement of the parties who joined together in the making of orders to vary the Probate of the July Will;

1. sold half share in a property at Scottsdale and signed relevant documentation to give effect to the sale;

g) spent money on repairs to 451 Churchill Avenue, Sandy Bay;

1. purchased a boom lift from Hookway Aerospace Pty Ltd and bequeathed it to a beneficiary;
2. continued the prosecution of a Land Compensation Case for the benefit of the Estate;
3. purchased a property for Renate Hookway as required under the July Will for $554,000.00;
4. distributed the property at 451 Churchill Avenue Sandy Bay to the Plaintiff and Stirling Hookway in equal shares;

1. have entered into Leases of the properties which are the subject of the Testamentary Trust in paragraphs 11, 12 and 13 of the July Will (' Trust properties');

1. have communicated with the tenant of the Trust properties, Hookway Aerospace Pty Ltd (in Liquidation); and

n) filed taxation returns for the Estate and the Trust in relation to the July Will.

Defence of the TFM proceeding commenced by Renate Reinisch

45 Tamzin and I were primarily responsible for providing instructions to Patrick Lunn of Simmons Wolfhagen in the defence of this proceeding which ultimately settled by agreement of the parties. In the course of the defence of the matter Tamzin swore an affidavit dated 27 August 2008 in opposition to the claim. Annexed hereto and marked with the letters 'SMH-K' is a copy of her affidavit.

46 Tamzin took a lead role in the administration of the Estate under the July Will. She was responsible for preparing the letters to each of the specific beneficiaries and obtaining acknowledgments from them of the bequests which were made pursuant to the July Will.

Proceedings commenced by Tamzin as Litigation Guardian for her Daughter against Simmons Wolfhagen

47 I became aware of proceedings having been commenced by Tamzin as litigation guardian against Simmons Wolfhagen alleging negligence in relation to the preparation of the July 2006 Will."

1. Additional evidence-in-chief was led orally from Stirling, and a bundle of emails and drafts of Tamzin's affidavit in the Testator's Family Maintenance Act proceedings. None of the draft affidavits contained any material such as that which Tamzin had said in her evidence in re-examination she had included in an earlier draft by way of a couple of pages about what had happened in the events of the last day of the testator's life leading up to the signing of the July will. (It will be recalled that Tamzin had said that she had deleted that material on Stirling's instruction to her, Stirling having said, "We don't need all this detail, we know that the will is correct and it's not relevant to the TFM action").
2. There was an objection by Mr McElwaine to the admission of the bundle of documents on the basis that the tender offended the credibility rule, and the documents did not fall within any of the statutory exceptions to that rule.
3. I admitted the evidence over that objection on the basis that it was relevant for at least one purpose other than the assessment of Tamzin's credit. That purpose, in my view, was that Tamzin's assertion in re-examination had the tendency to reflect adversely on her brother's credit. The deletion of relevant material from an affidavit prepared by another for use in court proceedings, or the direction to delete relevant material from an affidavit prepared by another for use in court proceedings, may be the act of a less than honest person, or may be the act of a person of flawed integrity. Stirling was entitled to adduce any evidence in his case that tended to establish that the assertion made against him was not true.
4. Stirling was examined by Mr McElwaine.
5. He agreed that on any view a very substantial component of the testator's estate went into the Testamentary Trust.
6. Stirling agreed that at the inaugural meeting of the original four trustees on 17 October 2006, those trustees, including himself and Tamzin, agreed that the capital and income distributions from the Testamentary Trust were to be 50% for the children and remoter issue of Tamzin and 50% for his own children and remoter issue. The minutes of that meeting recording that agreement were signed by the trustees.
7. Stirling agreed that that agreement was subsequently implemented by the trustees, including him.
8. He agreed that on 1 February 2010 he was contemplating a formal document to record that the trust assets and income were to be treated "fifty-fifty" as proposed by Tamzin.
9. On that date Tamzin sent him an email which stated, relevantly:

"Trust assets proceeds to be distributed between Stirling and Tamzin's children fifty-fifty respectively, ie Hannah receives fifty per cent and your children fifty per cent ... The split is not a discretionary part of the trust as per Peter Hookway's instructions."

1. Stirling agreed that he responded, having read the email, as follows:

"Excellent. Let's do better than just an email. Let's turn it into a Word document with a proper heading, dated and signed by both of us ... ."

1. Stirling agreed that by "fifty-fifty" what was meant was 50% to Tamzin's child and 50% to his children.
2. He agreed that on 2 October 2010 there was email discussion about "cloning" the Testamentary Trust in order that there could be a trust for Tamzin's children and remoter issue, and a separate trust for his own children and remoter issue.
3. Stirling did not agree however that what was envisaged was a 50/50 split. He said that what he had in mind, and what had been discussed, was that Lot number 6 be held for Hannah and Lot number 3 for his children.
4. That would have resulted in Stirling's children receiving a substantial amount more than Tamzin's child.
5. Stirling said that that did not mean that he had repudiated the agreement of the trustees reached on 17 October 2006 because he was offering to compensate Tamzin personally from his own funds "to equalise it".
6. Stirling was then taken to an email he had sent to Tamzin on 1 November 2012. This was shortly before finalisation of a Federal Court application, brought by Tamzin, to wind up all of the corporations in which she and Stirling were jointly involved, on the basis that Tamzin asserted that as directors they were dysfunctional.
7. The email contained the following statement:

"You're about to wind up the companies costing us millions of dollars. Once that is done there will be no going back and my conciliatory position regarding the trust will change."

1. He was asked what he meant by that and he answered that it meant that he would no longer have the finances at his disposal to "buy out Hannah or buy out a portion of Hannah's share", so there would be no way that they would be able to clone the trust "fifty-fifty."
2. Stirling was asked what was the "conciliatory position" to which he was referring to was. He said that "the conciliatory position was that it's fifty-fifty."
3. It was put to him that his anger caused by Tamzin's winding-up application caused him, at least as at 1 November 2012, to dispute that the trust income and assets should be shared 50/50. He agreed that was correct.
4. Stirling then asserted that he agreed to a 50/50 distribution at the initial trustee's meeting in order to keep Tamzin happy. He denied that Tamzin had expressed to him her concerns shortly after their father's death that the will did not provide for a 50/50 distribution, and he asserted that the concern that Tamzin had expressed to him was that not enough had been left for her.
5. He agreed however that Tamzin had always been very firmly of that view whenever the topic had been raised, that her understanding was that their father's wishes were for a 50/50 distribution of the Testamentary Trust.
6. Stirling was then referred to the letter from the testator to Mr Manser of 5 July 2006. He agreed that he had typed the letter in consequence of the discussions he had had with his father prior to 5 July 2006 as to his testamentary intentions.
7. He accepted that in that letter he and his father had made an error in the designation of Lots 3 and 4 and that the correct designation ought to have been Lots 3 and 6. He agreed that they had made an error in the designation of Lots 5 and 6, which should have been Lots 4 and 5.
8. Stirling agreed that he had accurately recorded in the sentence in the letter titled "Holdings" that which his father required, apart from the lot number errors. And he agreed that Lots 3 and 6 at that time were wholly owned by his father, but Lots 4 and 5 were owned by his father jointly with Tamzin as tenants in common in equal shares.
9. Stirling agreed that he faxed the letter of 5 July to Mr Manser once his father had signed it.
10. Stirling was then referred to a number of paragraphs of an affidavit sworn by Tamzin on 11 March 2015 in these proceedings. With some excisions he agreed with the contents of those paragraphs. As excised they state as follows:

144 On 17 October 2006, the Trustees of the Trust held a meeting. Minutes were taken by Stirling.

145 Thereafter, Stirling and I signed a copy of the minutes which I then placed in a fireproof filing cabinet at 451 Churchill Avenue, Sandy Bay.

146 On 1 February 2010 I emailed Stirling notes from our discussion approximately six months earlier about the Trust distributions and retirement of 2 Trustees. The following day Stirling responded in an email 'excellent, lets do better than just an email, ... date and sign by both of us ... '. A true copy of that email exchange is annexed and marked TPH-60.

147 Approximately a week later in February 2010 I was reviewing documents relating to the Trust and the Estate and could not find the minutes of the 17 October 2006 meeting. I spoke to Stirling and asked if he had moved the minutes, and he said he knew nothing about it and that they should still be there. The cabinet is only accessed by Stirling and I.

148 On 25 November 2010 I emailed Stirling a copy of the minutes and requested he sign and return them to me. A true copy of that email is annexure SMH-23 to Stirling's affidavit.

149 By an email to me of 30 November 2010 Stirling confirmed he was the author of the 17 October 2006 minutes. A true copy of an email chain is annexed and marked TPH-4.

150 Stirling has not signed and returned a copy of those minutes since the originals went missing.

151 At all times in my discussions with Stirling prior to my commencing the 461 Application, all distributions, proposed distributions and other matters concerning the Trust were on the basis of distributions being a 50/50 split between Stirling's children and my child... A copy of a letter from my father to Simmons Wolfhagen dated 5 July 2006 is annexed and marked TPH-61."

1. Stirling was then taken by Mr McElwaine to the Testator's Family Maintenance Act proceeding, and he agreed the trustees of the estate sought legal advice in the defence of that proceeding, and the matter was settled for $1.8 million plus some other benefits in accordance with the legal advice which the trustees received.
2. He agreed that in all likelihood that application would have been brought under the June will, and he said it might even have settled for more under the June will because the advice of their lawyers was to the effect that the residue was where any provision under the Testator's Family Maintenance Act was most probably going to come from, and the residue in the June will was more substantial than the residue in the July will.
3. Stirling was then asked about the bundle of emails and draft affidavits of Tamzin in those proceedings, which had been tendered by him in these proceedings. He was cross-examined at length about Tamzin's assertion that there had been an earlier draft than the first draft in the bundle, which earlier draft contained more detail about the events leading up to the signing of the draft will, and which she said had been deleted by her on Stirling's instruction.
4. Stirling steadfastly denied that there was any such earlier version of the affidavit, although he agreed that the settling of Tamzin's affidavit had been an iterative process in which he had "deep involvement" in the drafting and re-drafting of the various iterations, and that on many occasions he had ruled through Tamzin's draft and put in his own words.
5. Stirling also accepted that his mobile telephone records indicated that during the bulk of the period of the emailed drafts, after the first of them on 1 August 2008, he was in Melbourne, but that he was in Hobart prior to that date.
6. Stirling also agreed that there was no mention in his own affidavit in the Testator's Family Maintenance Act proceeding about his intention concerning the Testamentary Trust, and that that was because he did not think that detail relevant to the proceeding.
7. Mr McElwaine then directed Stirling's attention back to his conversations with Mr Manser and Stirling's father concerning the inclusion in the July will of a discretionary trust and Stirling denied that his father's wish was that the income and capital of the proposed trust would be distributed 50/50, as between his children and Tamzin's children.
8. There then followed this exchange:

"And he told you he wanted to leave all his Cambridge land to the trust?......Yes.

So I suggest to you that what he said was, 'No, I don't want a letter of instructions, I want all my instructions set out in the will'........Yes.

And in consequence of that he said, 'Would you draft a letter containing my instructions to my solicitor'?.......With a lot more detail than that.

Yes, but that's what he asked you to do?........Yes.

And you did and the outcome of that is the letter of 5 July?........Yes.

And your father was quite specific I suggest to you in that first, he wanted the trust to consist of identified lots of his Cambridge land?.......Yes.

Some of which he owned outright and some of which he owned as an equal tenant in common with Tamzin?.......Yes.

And he was quite specific that Lots 3 and 6 were to be held equally for your children and Tamzin's children?.......Yes.

And he was quite specific that Lots 4 and 5 as we now know them were to be held one hundred per cent for the benefit of your children?.......Yes."

1. Stirling was then asked whether his father's wishes were reflected in the July will. The following exchange relates:

"Where in the will do we see in the trust that Lots 4 and 5 are to be held one hundred per cent for the benefit of your children?.......It's not in there.

And where in the will do we see that Lots 3 and 6 are to be held fifty per cent for the benefit of your children?........It's not in there.

And likewise, that Lots 3 and 6 are to be held fifty per cent for the benefit of Tamzin's children?.......That was never part of the testamentary trust.

Lots 3 and 6 fifty per cent for children of Stirling and fifty per cent for children of Tamzin.

We don't see that in the will, do we?.......I'm sorry, I misunderstood you. No, it's not in the will."

1. Stirling denied that he ever told his father to sign the July will in the form drafted by Mr Manser because he could leave it to his trustees to ensure an equal division. And he said that he did not ever reassure his father that the July will as drafted by Mr Manser was in accordance with the matters that he had discussed with his father because he did not see the July will before his father signed it. Stirling denied that he picked up the July will from Mr Manser's office on 21 July 2006.
2. Mr McElwaine then directed Stirling's attention to the section of the testator's letter to Mr Manser of 5 July 2006 headed "Holdings". The following passage of the ensuing cross-examination is of sufficient importance in terms of the testator's intentions to warrant setting out in full. It was as follows:

"No doubt that your father knew what the trust assets were albeit he was a bit confused about lot numbers......Yes.

And no doubt that he knew that he only had a fifty per cent share in some of those titles......Yes.

The word 'holdings', is that your word or your father's word?.......I don't recall.

Is 'held' your word or your father's word?.......I don't recall.

Is the fifty per cent your percentage or your father's percentage?.......That is Dad's.

What did he say about the fifty per cent? What did he say to you?......He said he wanted to put fifty per cent of the 94 Kennedy Drive properties equally between the two families, and he wanted to put all of his share of the Lots 5 and 4 properties for the benefit of my children.

So there's no doubt you discussed with him that what he wanted was a compartmentalization of various holdings, some to go for your family, some to go for Tamzin's.......Yes.

That's absolutely plain, isn't it? And faithfully, I suggest to you, that's what you sought to record in the letter?.......Yes.

So that your children would have an exclusive entitlement to Lots 5 and 6, correct?.......Five and four.

Five and four, sorry. That was his intent?......Yes.

And his intent was that your children would also have a fifty per cent entitlement in Lots 3 and 6?.......Yes.

And that was, again, he wanted that to be exclusive or especially for them, correct?.......The words 'exclusive' and 'especially' were not used.

Were not used, but his intent was these titles to be held on a testamentary trust for your children, and these titles to be held on a testamentary trust for Tamzin's children. That's what he wanted, isn't it?........No.

Well, what else happens if Lots 3 and 6 are held fifty per cent for your children?......I don't understand your question.

Well if half Lots 3 and 6 are held for your children and half Lots 3 and 6 for Tamzin's children, that reflects his intent as expressed to you, I suggest, that he wanted the children to have a defined interest in particular properties.......Yes.

Yes. Did he say he wanted them to have a defined interest in particular properties?.......Yes.

And he was - he's specially careful to ensure that your children and your children alone would have the benefit of a hundred per cent of Lots 4 and 5?.......Yes.

Because he knew that Tamzin's fifty per cent interest in Lots 3 and 6 would ultimately devolve for the benefit of her children. That was his scheme, wasn't it?.......No.

But he never intended, for example, that your children would be considered as beneficiaries of income or capital to a hundred per cent of Lots 3 and 6, did he?........No." (Emphasis added.)

1. Stirling agreed that the outcome of the July will was not what he had carefully recorded in the letter to Mr Manser signed by his father on 5 July 2006.
2. Next in cross-examination Stirling was asked about every item he had set out in his affidavit of 27 May 2015 headed "Actions by Executors", and he was asked whether in relation to each of the actions taken by the executors under the July will it was the case that the same actions would have been required under the June will.
3. Leaving aside the question of whether the executors would have entered into leases of the properties which are the subject of the Testamentary Trust, or would have communicated with the tenant of the Trust properties, Hookway Aerospace Pty Ltd (in Liquidation), Stirling accepted that with some extremely minor exceptions in relation to bequests, all of the actions taken by the executors under the July will would also have been undertaken by them under the June will.
4. Stirling was then asked about the leases I have just referred to. He accepted that he had entered into those leases as executor of his father's estate and not as trustee of the Testamentary Trust. He also accepted in general terms that it was important to have secured the leases, although he did not accept that the leases would necessarily have been entered into if the relevant land had formed part of the residue of his father's estate under the June will. Stirling said that he did not understand that the executors of the June will could have leased the land.
5. He agreed that there had been distributions under the Testamentary Trust in 2009 of some $34,399.13, and in 2010 of some $65,917.34, half of which had been paid to him as the legal guardian of his children. He said that he had used those distributions for the purposes of the maintenance, education and advancement of his children, and that had he not received those funds he would have been obliged to use his own funds for those purposes.
6. Stirling agreed that there had been no tax returns filed on behalf of the Testamentary Trust, apart from the year 2009 and that the only tax return filed on behalf of the estate was for the same year. He was unsure about whether penalty tax would be payable on any undistributed income of the Trust, and was also unsure as to whether an amended tax return for 2009 would be required to be filed if probate of the July will was revoked.
7. Stirling was then asked about the relationship between the letter of 5 July 2006 and his email to Mr Manser of 12 July 2006 and cl 14 of the July will.
8. As now correctly understood, the letter of 5 July specified that the "Trust assets" were to comprise Lots 3 and 6 of SP 146586 and the testator's 50% share of Lots 4 and 5 of the same sealed plan, the other 50% being held in Tamzin's name.
9. Again, as now correctly understood the 5 July letter specified that the "Holdings" were to be that lots 3 and 6 were "to be held 50% for children of Stirling and 50% for children of Tamzin" and that lots 4 and 5 were "to be held 100% for children of Stirling".
10. The email of 12 July from Stirling to Mr Manser reads, relevantly, as follows:

"Please go ahead and insert the discretionary testamentary trust into Peter Hookway's will. Only lots lot (sic) 3 & 6 of SP 146586 and also 120091/1. Lots 5 & 4 are to be treated as per para 11 of existing will ... ."

1. The title reference 120091/1 was not the correct title reference. The reference, which is the reference for 88 Kennedy Drive, was in fact 250819/1.
2. Clause 11 of the June will was replicated in effect in cl 14 of the July will in purported obedience, I infer, to the instruction given in the 12 July email. It reads:

"14 My half share of the remaining parts of 66 Kennedy Drive Cambridge (lots 4 and 5 of SP 146586) is bequeathed to Stirling Mathew Hookway to result in this land being held in equal shares by Stirling Mathew Hookway and Tamzin Peta Hookway as tenants in common."

1. It should be observed at this point that cl 11 of the July will reads as follows:

"I DEVISE my land at Cambridge in Tasmania comprised in Certificates of Title 146586 Folios 3 and 6 and Volume 250819 Folio 1 (the Trust Allocation) to my executors and trustees on the trusts set forth in Clauses 12 and 13 hereof."

1. With the matters I have just set out in mind, the following passage from Mr McElwaine's cross-examination on this subject is relevant:

"So he changed his mind - sorry, I probably put that wrongly to you a moment ago - he changed his mind between 5 July and 12 July, in fact, he didn't want that property to be held for the grandchildren he wanted it to be held by you?......Yes.

And that's what was ultimately provided for at clause 14 of the will?......Yes.

But he didn't change his mind on what he wanted to do with Lots 3 and 6?......I can't comment I don't understand.

Well did he ever say to you, after he signed the letter of 5 July 2006, 'Oh well, I don't want Lots 3 and 6 to be held fifty percent for your children and fifty percent for Tamzin's children'?......Oh there was a discussion around that and - but those exact words weren't used, no.

But he didn't change his mind, did he?......There was a change in mind, yes.

What's the substance of what he said?......The substance was that he had to rearrange property titles that - I think there was a discussion with Mr Manser -

No, no, just tell me what he told you?......I can't remember exactly.

Well, did he change his intent that Lots 3 and 6 were to be held on a testamentary trust?......No.

And he never said to you, 'Oh, I've changed my mind about Lots 3 and 6 being held fifty percent for your children and fifty percent for Tamzin's children' - never said that to you, did he?......I can't remember the exact words -

Did he say something along those lines to you?......I can't remember.

Did he ever say anything to you which indicated to you that he'd changed his mind about the disposition of Lots 3 and 6 as he had set out in the letter of 5 July?.......I can't remember exactly what was said in that conversation.

What he did say to you, I suggest to you, is that he wanted fifty percent of the 94 Kennedy Drive properties to be equally held between the two families and he wanted to put all of Lots 4 and 5 for the benefit of your children?.......No."

1. A little further on the following exchange occurred:

"Right. So we're now with your evidence to this Court being, 'He expressed a particular intent to me, which I can recall, which is reflected in the letter of 5 July' - correct?......Because it's in the letter.

Yeah, and 'At some subsequent point in time he changed his mind'?......Yes.

'But I can't tell this Court what he said to me about the change in mind'?......I can tell you the effect of the change in mind.

No, you cannot recall what he said?......No, I cannot recall his words, no.

Or the substance of what he said?......Not to any great detail, no.

Not to any detail?......Well to the detail that it is reflected in the email of the 12th of July.

Well let's go back to the email of the 12th of July:

'Please go ahead and insert the discretionary testamentary trust.'

So he didn't change his mind about wanting the discretionary testamentary trust, did he?......No, he didn't.

Only Lots 3 and 6 and, as we now know, 88 Kennedy Drive?......Yes.

The only thing he changed his intent about, Mr Hookway, I suggest to you, was that he confined the testamentary trust to Lots 3 and 6 and included 88 Kennedy Drive and he excised Lots 5 and 4?

HIS HONOUR: I'm not sure that's the effect of the will, is it?

MR McELWAINE SC: After all that - it must be a matter for submissions, your Honour.

MR McELWAINE SC: (Resuming): This email, you, I suggest, are conveying to Mr Manser that only Lots 3 and 6 and Title 120091/1, which we now know to be 88 Kennedy Drive, were to be put into the trust?......Correct.

And Lots 5 and 4 were to be treated as per paragraph 11 of the existing will?......Correct.

Ie not in the testamentary discretionary trust, which was to be provided for by Mr Manser?......Correct."

1. Stirling agreed that he had no further discussions with Mr Manser after his email of 12 July. He said that he certainly called Mr Manser's firm but he did not believe he spoke to him personally.
2. He agreed that the extent to which he knew that his father spoke to Mr Manser was that on 18 July 2006 when Stirling returned to Hobart, his father advised him and Tamzin that he had telephoned Mr Manser earlier that day to discuss the will to request that two additional trustees be added. Stirling said that his father may have discussed something else in that meeting but he could not remember.
3. Finally, Stirling agreed that his father sent him to see Mr Manser in order to find out about discretionary family trusts, and that he faithfully recorded in his affidavits what Mr Manser told him, and what he then conveyed to his father. He said that he was quite certain that he conveyed to his father advice from Mr Manser that often a person will set out further directions to their trustees in a letter, and he was quite certain that his father was dismissive of that option and he wanted everything to be expressed in the will.
4. Stirling was cross-examined by Mr Turner.
5. He was asked whether his father ever talked to him about the July will, and he said that he had not because he did not speak to his father after he took possession of the will.
6. He was asked whether his father discussed with him any aspects of his will after the email of 12 July. Stirling replied "Yes". He was then asked what he discussed and when, and his answer was:

"I can't remember, I'm sorry, but I know there must have been a discussion regarding yet one more ... ."

1. Dr Dunne is a retired Palliative Medicine Physician. He formerly acted as Medical Director of the Palliative Care Unit of the Southern Tasmanian Area Health Services, and worked as a member of the Palliative Care Services for that organisation.
2. Dr Dunne treated the testator in the last months of his life.
3. For the purposes of preparing his affidavit he had reviewed the testator's file maintained by Palliative Care Services Hobart Hospital which contains the records with regard to the testator's treatment.
4. Dr Dunne set out in his affidavit that he had seen the testator at home on 18 July 2006. However, it transpired that he was in error as to that, and that the last time he had seen the testator was in fact Friday, 14 July 2006. Bearing that in mind I set out the following paragraphs from Dr Dunne's affidavit. He stated:

9 I spent some time with Peter at his home on 18 July 2006. My letter to Dr Vidor of 18 July confirmed that Peter was back on track following his blood transfusion and the effects of Alprazolam. He was alert and capable of concentrating and having a discussion. I recall having a discussion with Peter over a Scotch and we had a detailed and in depth discussion regarding brandy and his foray into an import enterprise.

10 From my recollection and from my review of the file, I had no doubt that Peter at that time had the capacity to provide instructions for and make a Will and could understand the nature and effect of the making of a Will and its contents. He was alert and aware of his surroundings although he clearly knew that he was close to dying."

"13 From the reading of the file and my letters, the entries are all what I would describe as process style entries about his physical condition and progress. Neither myself nor the Palliative Care Nurses had made any comment in the file expressing concern about Peter's mental state other than the time around 12 July when Peter had the reaction to the Alprazolam. There was I recall an entry in the file about Peter being overmedicated on Fentanyl and a recommendation was made for him to reduce his patches but I cannot recollect any mention being made about confusion.

14 The reference in the letter to Dr Vidor on 18 July noted that Peter was 'back on track' I believe to be a comment on his confusion being settled following the incident with his medications following the blood transfusion on 12 July.

15 Delirium/confusion is clinically significant in a palliative care environment and if present would have been noted in the file or other correspondence either by myself or some other treating professional such as nurses. The absence of any ongoing record of confusion in his records is, I believe reasonable confirmation that ongoing delirium was not an issue.

16 I have been shown the affidavit of Peter Manser sworn 15 January 2016. That affidavit makes reference to a telephone call on 18 July and also a conference in person on 22 July.

17 The fact that Peter called his lawyer on 18 July supports my conclusion that Peter had capacity to provide instructions and make decisions with regard to his Will on that day.

18 The fact that Peter was able to have a lengthy meeting with his lawyer on 22 July suggests to me that there had been no marked deterioration in his condition at the time that he had that meeting on 22 July."

1. Dr Dunne was asked in evidence-in-chief whether the error as to the date on which he last saw the testator required him to revisit the opinions he had expressed in his affidavit, particularly at pars 17 and 18 set out above. Dr Dunne responded:

"There's nothing in my contact with Peter over the time that actually makes me think that I need to make any change in that with my contact with him. The, certainly until the 14th of July I would say that my opinion is still there. The 18th of July is obviously not when I saw him." [Emphasis added.]

1. Dr Dunne was asked whether anyone else had attended upon the testator following his own home visit on 14 July. Dr Dunne answered that there were a couple of contacts entered in the palliative care notes and on 19 July the testator was seen by one of the palliative care nurses, and the issue that he was having at that stage was with swallowing his medications. There was a discussion recorded about using a syringe driver at that time, and there was a note about concern about the syringe driver meaning the end of life. But Dr Dunne said that he could not find any record in that discussion that made any suggestion that the testator was confused or distressed on 19 July, other than the fact that he was having difficulties with the swallowing of medication at that time.
2. Dr Dunne had earlier said in his affidavit that delirium and/or confusion is clinically significant in a palliative care environment, and if it had been present it would have been noted in the file or other correspondence, either by him or by some other treating professional such as nurses. He believed that the absence of any ongoing record of confusion in the testator's records was confirmation that ongoing delirium was not an issue.
3. Dr Dunne was cross-examined by Mr McElwaine.
4. It was put to Dr Dunne that he did not express an opinion in his affidavit as to the testator's capacity on the day he signed the July will, and his response was that he would find it difficult to express a capacity because he was not there.
5. He was asked whether the introduction of the syringe driver on 22 July indicated that the testator was close to death. Dr Dunne's answer was that it indicated that the testator had difficulty with swallowing, and he added that, "close to death was probably a given because of the nature of his overall illness which had been protracted over a period of time".
6. Dr Dunne was asked about Midazolam being introduced after the testator had agreed with Dr Vidor at about 4pm on Saturday, 22 July 2006, that the syringe driver could be introduced. He said that Midazolam was usually used as an agent for anxiety and distress, and it was often used as a drug to control a degree of restlessness and distress at the end of life. He was asked whether that was introduced because someone had formed the view that the testator was nearing the end of his life. He said yes, he would assume so.
7. He was asked whether at this end of life stage the doses of drugs the testator was given would have induced a state of confusion in him. The doctor said that it was possible, that he did not think that the morphine would have contributed, but it was possible that the Midazolam may have because he did have a previous problem with another drug, Alprazolam. He said, somewhat obviously one might think, that it depended to a certain extent how much was in the testator's system at the time and what effect it would have had in that regard.
8. Mr McElwaine drew Dr Dunne's attention to Tamzin's evidence as to the number of breakthrough doses of morphine and Midazolam that she administered on 23 July. That evidence was that she had given a minimum of four doses between 6am or 7am up until the time that Mr Manser arrived and then two after Mr Manser had left. She had said ultimately in cross-examination by Mr Turner that she had given approximately five or six doses "during the daylight hours" with a minimum of four.
9. Dr Dunne was then asked whether, given that dosage regime, he was able to express an opinion as to the likely effect on the testator's cognitive capacity or function at about 7.30pm on 23 July 2006. He said that it was almost impossible to conjecture about that, and he could not properly say.
10. Professor Ashby's statement that he believed that he should advise the Court that it was unlikely that the testator would have understood what he was signing was put to Dr Dunne for comment and he said, "I couldn't say with any certainty of that at all because it's hard to be certain even in that sort of befuddled state as it were."
11. Dr Dunne was asked by me if he offered any opinion as to whether the testator would have understood that he was signing a will. He said that not being there and not understanding what the testator was being told he was signing he, Dr Dunne, did not know.
12. I further asked that if one accepts Tamzin's evidence about the testator practising his signature, then could it be taken that he understood he was signing something. Dr Dunne said, as I apprehend him, that the testator would have known that he was signing something important.
13. I asked whether the doctor could offer any opinion as to whether the testator would have understood what was in the document that he was signing. He answered that he could not really say.
14. Ultimately on this subject Dr Dunne said that he did not agree, or could not agree completely, with Professor Ashby but he was not advancing a concrete opinion of his own.
15. Dr Dunne said in answer to Mr McElwaine that he had not been asked by Stirling's solicitors to express an opinion as to whether, assuming that the testator gave instructions to his lawyer at a time when he did have capacity, he then would have understood when he signed the will as to whether it reflected those instructions.
16. Dr Dunne agreed that the statement in his affidavit that the fact that the testator was able to have a lengthy meeting with his lawyer on 22 July suggests there had been no marked deterioration in his condition at that meeting from when Dr Dunne last saw the testator on 14 July, was dependent on Mr Manser's evidence.
17. Finally, in answer to a question of mine Dr Dunne said that the statement in his affidavit that the fact the testator had called Mr Manser on 18 July supported his conclusion that the testator had capacity to provide instructions and make decisions with regard to his will on that day, was predicated on the fact of the phone call being made. That suggested to Dr Dunne that on 18 July the testator was probably not much changed from when he last saw him on 14 July.

1. Mr Manser's evidence-in-chief was by way of affidavit. Once again because of the importance of the evidence and its detail it does not lend itself to paraphrase, and I set the relevant paragraphs out in full. They are as follows:

4 On or about 4 July 2006 I received a phone call from Stirling Mathew Hookway ('Stirling') which went for approximately 30 minutes. He advised me that his Father, Peter Hookway ('Peter') was thinking about introducing a discretionary trust into his will and wanted to know what I thought of the idea.

5 I noted this conversation in a file note dated 4 July 2006. Annexed hereto marked 'A' is a copy of that file note.

6 The notes contained in Annexure A state as follows:

'H- conferring on discretionary testamentary trusts'

7 I can't remember the specifics of this conversation but I believe the conversation generally related to ways that Peter's will could benefit his grandchildren.

8 On or about 5 July 2006 I received a letter from Peter instructing me to prepare a discretionary testamentary trust for his will and providing particulars as to how he wanted the trust set up. Annexed hereto marked 'B' is a copy of that letter.

9 There was a potential inconsistency in the instructions contained in Annexure B between seeking a discretionary trust and specific ownership of the trust property under the heading 'Holdings'. After subsequent discussions with Stirling I was instructed that Peter wanted a discretionary testamentary trust but only in respect of lots 3 and 6 which were solely owned by Peter. In respect of lots 4 and 5 these were held by Peter as tenants in common with his daughter Tamzin Hookway ('Tamzin') in equal shares. Peter via Stirling instructed me that these were to be dealt with by the transfer of Peter's interest to Stirling with the result that he and Tamzin would hold the land as tenants in common in equal shares. These instructions were provided to me by email from Stirling on 12 July 2006 which is referred to below. I gave effect to these instructions by my drafting of the amended will referred to below in particular paragraphs 11 to 14 inclusive.

10 Annexure B states that 'when a beneficiary becomes 30 they are entitled to be a trustee'. I discussed this issue with Stirling or Peter (probably Stirling) and advised it is simply too difficult to administer an estate with a greater number of trustees. I was instructed not to include this in the amended will.

11 Annexure B states that the term is to be '80 years?' This is the statutory maximum term of years for a discretionary testamentary trust under the Perpetuities and Accumulations Act 1992.

12 On or about 6 July 2006 I telephoned Stirling twice. I spoke to Stirling for approximately 23 minutes on the first occasion and for approximately 20 minutes the second occasion.

13 On or about 12 July 2006 I received a telephone call from Stirling and spoke to him for approximately 10 minutes.

14 I noted these three conversations on a file note dated 6 and 12 July 2006. Annexed hereto marked 'C' is a copy of the file note.

15 The notes contained in Annexure C state as follows:

Stirling H - Hookway Aerospace P/L is tenant of 4 lots (or will be)

Will advise alternative trustees and email current will'

16 In annexure C it states three periods of time for the telephone conversations, the first being 23 minutes, then 20 and 10 as I always went up the page when listing subsequent attendances.

17 The purpose of the telephone conversations on 6 July 2006 was to address the capacity for the properties to generate income with 2 mortgages and the location of the subject properties.

18 On 12 July 2006 I received an email from Stirling. Annexed and marked 'D' is a print of that email. I made the note 'now 146586/1?' in relation to identifying the property that was to become property of the testamentary trust.

19 On or about 18 July 2006 I received a phone call from Peter and spoke to him for approximately 20 minutes.

20 On or about 20 July 2006 I telephoned Stirling and spoke to him for approximately 15 minutes.

21 I noted these two conversations on a file note dated 18 and 20 July 2006. Annexed hereto marked 'E' is a copy of the file note.

22 The notes contained in Annexure E are as follows:

'Peter Hookway - wants 4 trustees two additional are:

- Russell Hookway 799 Richmond Road Cambridge in Tas Transport Operator

- Maxwell Nicholas Simons 10 Pillinger St Dynnyrne Building Contractor Consultant

Stirling H - reference to 120091/1 is wrong you to advise correct reference'

23 I had not previously spoken to Peter prior to my telephone conversation with him on or about 18 July 2006.

24 When I draft file notes I only write down the essentials of the conversation that are pertinent to the file.

25 At this particular time I was unsure exactly as to the state of Peter's health but I knew from my discussion with Stirling that he had cancer. During our discussion his voice was quivery.

26 During my discussion with Peter I did not get any sense of him lacking the capacity to amend his will. If I had I would have given him advice regarding the issues relating to incapacity and made a note of that.

27 The purpose of the phone call to Stirling was to advise that the title reference I was given was wrong and I needed the correct reference.

28 Throughout the file I considered Stirling was acting as a messenger between Peter and me, to convey Peter's instructions, due to Peter's ill-health.

29 On 20 July 2006 I received an email from Stirling. Annexed and marked 'F' is a print of that email.

30 On or about 21 July 2006 I wrote to Peter providing him with an amended draft will ('the amended will') which included the discretionary testamentary trust. Annexed hereto marked 'G' is a copy of that letter.

31 I cannot recall whether Annexure G was sent via post or collected from Simmons Wolfhagen on 21 July 2006.

32 Prior to preparing the amended draft will I received a copy of the previous will that I mention in paragraph 1 of Annexure G. I can't now recall how or when this was provided.

33 The amended will accorded with the instructions I had received from Peter himself and from him via Stirling.

34 On 22 July 2006 I received a phone call from David Morris and spoke to him for approximately 10 minutes. I then telephoned Tamzin and spoke to her for approximately 10 minutes. I then attended 451 Churchill Avenue ('Peter's House') to discuss the amended will with Peter for approximately 1 hour. At the time I was living only about 3 minutes' drive from Peter's house so there was little travel time in the attendance for 1 hour 15 minutes I have noted in annexure H referred to below.

35 On or about 24 July 2006 I received a telephone call from Tamzin and spoke to her for approximately 10 minutes.

36 I noted these three phone calls and attendance in a file note dated 22 and 24 July 2006. Annexed hereto marked 'H' is a copy of that file note. I prepared this file note on Monday 24 July 2006 including from notes I took on 22 July 2006 at the time of the events which occurred on that day that I have described above.

37 The notes contained in Annexure H state as follows:

At 451 Churchill Avenue - conferring with Tamzin and later Peter H. You will execute will, probably tomorrow and advise when this is done.

38 When I went to Peter's House on 22 July 2006 Tamzin, a female carer/helper and another female friend were present. I do not recall the names of the other two females.

39 I spoke to Tamzin for approximately 10-15 minutes before spending approximately an hour talking to Peter.

40 During my conversation with Tamzin she told me that Peter's health was not good and that he was sinking.

41 Tamzin didn't question why I was there and did not question me in regards to the amended will at all. If Tamzin had asked me about executing the amended will I would have advised her against being a witness as she benefitted under the will. I would have done the same to Max Simons if I had met him at Peter's house that day.

42 Tamzin brought Peter to me whilst I was in the lounge room of Peter's House. Peter was ambulating but moving slowly. I shook Peter's hand and he had a firm grip.

43 I then had a discussion with Peter alone. I asked Peter whether had received and read my letter of 21 July 2006. He confirmed he had. I asked him whether he understood the amended will. He confirmed he did. I explained that my work only involved creating the discretionary testament trust and that except as mentioned in my letter I had not amended any other part of the will. Peter and I had a general discussion during which he gave me details in regards to his spread of investments. This was simply conversational.

44 During my interaction with Peter I could see that he was fatigued however he was aware of his own financial affairs. There were no inconsistencies with his reasoning. He didn't exhibit any confusion or forgetfulness. He was a man who was unwell, but who appeared to me entirely competent. This was consistent with my impression of him formed during our discussion on 18 July 2006.

45 I did not derive any feeling that Peter was apprehensive about signing the will. The brevity of the notes that I wrote on the file illustrates that there wasn't any conflict in my instructions. Ordinarily if I believed there was any apprehensiveness or potential conflict, my notes would be much more detailed.

46 Before I left Peter told me that he would execute the amended will, probably tomorrow, and advise when this was done."

1. Mr McTaggart led some further evidence-in-chief from Mr Manser around par 26 of his affidavit in consequence of an objection that his statement that he had no sense of the testator lacking capacity to amend his will when he spoke to him on 18 July 2006 was conclusory. Mr Manser said that the testator's voice was quavery but that he was articulate and logical in his conversation.
2. Mr Manser was cross-examined by Mr McElwaine.
3. Mr Manser agreed that his file notes were not very detailed, but that they did record the matters that he considered important. He agreed that where, for example, he had a discussion that he recorded as of 10 minutes' duration, a one line entry did not "do justice to everything which was discussed".
4. He agreed that it was his understanding as at 4 July 2006 that a common form discretionary family trust would enable the trustees to distribute capital and income as they saw fit.
5. Mr Manser accepted that he was well aware as at 4 July 2006 that in family discretionary trusts it was common for the settlor to set up the trust but then deliver a letter to the trustees as to his or her wishes. He said that it was not uncommon, but was the exception rather than the rule.
6. He agreed that he regarded the 5 July letter as constituting his instructions from the testator, and that he regarded the testator as his client although acting through the agency of his son Stirling.
7. He agreed that as at 5 July 2006 it would have been perfectly proper and lawful to set up a discretionary trust whereby separate interests in property were set aside for separate classes of beneficiaries, although he said that it would not be without difficulty.
8. Mr Manser agreed that it would have been feasible to create two trusts whereby 50% of the settlor's beneficial interest in land was to be held upon discretionary trust for one class of beneficiaries, and the other 50% held upon discretionary trust for a second class of beneficiaries.
9. And he agreed that another way of going about it and achieving the same result would be for the settlor to set aside land to be held on trust, but to divide the corpus of the trust 50% for one class of beneficiaries and 50% for a second class of beneficiaries.
10. He accepted that those were two relatively simple mechanisms which were available, and which would have given effect to the requirement of the 5 July letter, that is, that Lots 3 and 6 be held 50% for the children of Stirling, and 50% for the children of Tamzin. And he agreed that that was not the trust he created.
11. Mr Manser agreed that his instructions were changed by an email from Stirling of 12 July 2006 and that he was instructed to go ahead and insert the discretionary Testamentary Trust into the testator's will but only in respect of Lots 3 and 6, and that Lots 4 and 5 were to be treated as per cl 11 of the June will which was provided to him for the first time as an attachment to that email.
12. He accepted that prior to receipt of that email he received no instruction as to any other alteration to the terms of the trust the subject of the letter of 5 July. And he agreed that if on 18 July 2006, when the testator rang him, he had told Mr Manser to alter the trust as advised in the letter of 5 July, he would have made a note about that.
13. He was asked whether he understood though, that in drafting the Testamentary Trust in the way he did, he was not in fact giving effect to the letter of 5 July, and he answered:

"I gave consideration to this in drafting the will and I came to the conclusion that by reason of the alterations on which I'd been instructed since the initial instructions, and the expression of the earlier correspondence, I should regard the requirement of holdings as having been superseded."

1. He was challenged as to where in his solicitor's file created for the testator it was recorded that he was told to disregard the holdings requirement, and he agreed that it was not, that is to say, that he had not been so instructed.
2. Mr Manser agreed that if he had drafted either of the two types of trusts which he had earlier agreed would have been feasible and lawful then the result would have been a trust whereby one half of the beneficial interest in Lots 3 and 6 would have been held on a defined discretionary trust for the children of Tamzin, and the other half for the children of Stirling, but that what he had drafted put Lots 3 and 6 into one trust without defined interest.
3. He was challenged as to why he did not think to point that change out in his letter of 21 July to the testator, and he responded:

"I was working in some haste in my preparation of the letter. I remember deciding that it was better since I had to assume that my client had no more than oral advice probably from his son as to developments in the matter that I should give him the opportunity to see exactly what alterations I'd made and to focus upon those in deciding whether or not they were adequate." (Emphasis added.)

1. He noted that in par 6 of his letter he had invited any queries, but he agreed that the testator did not contact him after 21 July to discuss the draft or any amendments.
2. Mr Manser agreed that the next relevant event on his file was the file note dated 22 July 2006 recording his visit to the testator's home on that day - a Saturday. He agreed that he did not make that file note until he returned to his office on the Monday, and that he did so from notes he had made on the Saturday which no longer exist.
3. It was put to him that two other persons had given evidence that he, Mr Manser, had attended the testator at home on Sunday, 23 July, and he was asked whether after such a long period of time he might not be mistaken. He answered that he thought he would have been careful to verify the date before compiling the original note from which the file note was derived and that he stood by his note.
4. He said that he did not notice a television in the room when he visited the testator. He said that on arrival he had a conversation with Tamzin for 10 or 15 minutes which was fairly desultory because she told him initially that her father was then undergoing some treatment and he would be with them shortly. Mr Manser said that when he saw the testator he did not believe that he was hooked up to a syringe driver.
5. Mr Manser denied Tamzin's assertion in her evidence that her father sat quietly in his lounge chair and she explained to him, Mr Manser, that her father had two questions about the trust and was anxious about it being correct. He said the room he was in with the testator was an L-shaped room and after Tamzin brought her father out she left them. He said that he could not say whether Tamzin was still in the same room or not because he could not see the other end of the "L". He said that when he arrived there was another lady present but he denied the presence of another male.
6. He denied that Tamzin handed the July will to him, and said that he did not look at or even see the will while he was there. He said that no one asked him about the content of the will.
7. He was asked whether he asked the testator about the content of the July will and he answered:

"I asked him several questions, firstly, whether he had received and read my letter and its enclosure, and whether he'd understood them, and he signified that he had. I asked him then what he thought. I received no interrogatory or negative response to that and he then proceeded to speak to me about his business assets generally." (Emphasis added.)

1. Mr Manser denied that Tamzin had a discussion with him where, in substance, she said the will does not say the trust is 50/50.
2. He agreed that he had not thought about the circumstances of the July will and its preparation until he was asked in December 2015 to prepare an affidavit in this proceeding.
3. Mr Manser accepted that he perceived an inconsistency between a 50/50 split and a "pure discretionary trust". He agreed that nowhere in his file was there any note of any subsequent instruction to change the basis of the trust as set out in the letter of 5 July, apart from the excision of Lots 4 and 5. He said:

"There's references throughout the file in correspondence to a discretionary testamentary trust. I referred to in Peter Hookway's original instructions and I understood that in the narrower sense that that was the prevalent treatment to be accorded - I took particular notice of the fact that he'd consulted his accountant ...."

1. Mr Manser agreed that when he visited the testator he did not read the will to him or give him any advice at that time about the change which was effected by the drafting of the document he had provided with his letter of 21 July. Mr Manser said the first question he asked the testator was whether he had received the letter and the enclosed will and he spoke and confirmed that he had. Mr Manser said the next question was, "Do you understand the will", or, "Have you read the will - have you read them?", and the testator confirmed that he did or he had. Mr Manser agreed however that his evidence was that he now cannot recall the words, or the substance of the words, which were used.
2. He agreed that the testator was very tired. He said that he went into a narrative in the historical vein as to what he had done leading up to the current situation with his businesses and he, Mr Manser, had very little to say during this period of time. Mr Manser wondered whether the testator had a question to ask based on what he was telling him, but it transpired that he did not. Mr Manser said that the conversation was ordered but it was almost in the realms of reminiscence. He agreed that it was a rambling discussion that really had no point, but that it did not betray any negative features in that there was no vagueness, it was not repetitive, and as far as Mr Manser could tell it was not inconsistent.
3. Finally, Mr Manser denied that it was Stirling who telephoned him on 24 July to advise him the testator had died. He said it could have been another woman but he speculated that it was Tamzin.

1. Mr Ng is a retired pharmacist who had been a neighbour of the testator for many years and who witnessed the June will and the July will. His evidence-in-chief was by affidavit which states, relevantly, as follows:

3 On 23 July 2006 I was asked to attend the Hookway family home at 451 Churchill Avenue, Sandy Bay to witness the execution of a Will by Peter Hookway.

4 I got to know Peter both as a neighbour and friend who had also entrusted us to supply his medications over many years.

5 Peter, Samantha and I were in the sitting room when we witnessed the execution of the Will. No one else was present in the room at the time of execution of the Will.

7 In executing the Will, Peter did what had to be done by signing where marked. Samantha and I also signed where indicated. A copy of the July Will is annexed hereto and marked with the letters "AN-1".

8 On completion of the execution of the Will, Peter and I had a conversation for several minutes covering different topics before my departure. I am unable to recall what we spoke about specifically.

9 I spoke to Peter whilst Samantha went off to speak to Tamzin and Renee to let them know that we had finished.

10 I cannot recall anyone else being present at the time that we were at their home.

11 Apart from these recollections I cannot recall anything else about the day as a result of the length of time since the July Will was executed ... ."

1. Mr Ng was cross-examined by Mr McElwaine.
2. He could not say at what time of the day he witnessed the July will, save that it was in the evening.
3. Mr Ng thought the testator came into the room where he was but he could not remember if Tamzin had met him and Mrs Ng and showed them into the room where her father was.
4. He could not remember Tamzin showing her father where to sign. He said that his recollection was that there were only he and his wife and the testator in the room. He accepted however that the date on the will - 23 July 2006 - was not in his or his wife's handwriting and was not that of the testator.
5. Mr Ng agreed that he prepared a signed statement as to the events of signing the will after Tamzin asked him to do so and put it in Tamzin's letterbox. He said the statement dated 17 November 2015 was true to his recollection and that it was his own recollection, unassisted by suggestions from anyone else.
6. He agreed he did not put in his statement of 17 November 2015, that there was no-one else present in the room at the time of the execution of the will. He was asked if he remembered if he was asked by Stirling's lawyers whether he recalled if anyone else was present in the room apart from himself, his wife and the testator. He responded that he could have been asked that.
7. Mr Ng said he had not read the will, and the will was not read over to the testator before he signed it. He agreed that the testator did not read it in his presence before it was signed, and he said that he would not know, and could not say if anyone asked the testator if he knew what he was signing.
8. Mr Ng said the testator looked tired and spoke very slowly. He could not say if he seemed disorientated or confused. He agreed that the testator certainly "wasn't the Peter Hookway that [he] had known in the past and that he look visibly tired and spoke very slowly and was slow to move".
9. Finally, Mr Ng was cross-examined by Mr Turner.
10. He agreed that the first time he was asked to recall the events of 23 July 2006 was when he was approached by Tamzin in November 2105, and that he had not paid any thought to those events before then.

The law as to the revocation of a grant of probate

1. I have already observed that the issues that arise in these proceedings so far as I am now asked to determine them are:

(a) Is Tamzin now precluded by notions of acquiescence or affirmation and delay and/or resultant prejudice to the defendant or detriment to the testator's estate from applying to have the grant of probate of the July will revoked?

(b) If not, is there is evidence before the Court to incite a suspicion that the testator did not have testamentary capacity to make the July will?

(c) If so, has Stirling proved affirmatively that the testator had testamentary capacity to make the July will and/or knew and approved of its contents?

(d) If not, does this case engage the rule in Parker v Felgate (above)?

1. The relevant law in relation to each of those issues is, for the most part, uncontroversial and I have been assisted greatly by counsel who provided me at a very early stage of the trial with detailed written submissions as to the following principles which are applicable to the issues raised by the pleadings in this case as set out above.
2. Section 6(5) of the Supreme Court Civil Procedure Act 1932 confers jurisdiction on this Court to grant and to revoke a grant of probate.
3. As I have already observed, the grant of probate of the July will made on 7 September 2006 was in common form. The decision of Lindsay J in Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 at [102]- [210] contains a useful analysis of the history and exercise of the jurisdiction. The relevant distinction between a grant of probate in common form and a grant in solemn form is that the former is revocable for cause and the latter is only revocable in limited circumstances, such as fraud or where a later valid will is discovered.
4. The following relevant statements of principle are summarised in Lucas v Konakas:
   • the central object which the Court must keep in view in the exercise of probate jurisdiction generally, and in dealing with applications for the revocation of a grant in particular, is the due and proper administration of the estate before the Court ;

• probate litigation has an inquisitorial heritage not shared by common law adversarial contests;

• in the exercise of the discretion to revoke a grant, regard is had to all of the circumstances of the case;
• in the exercise of the discretion it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years;
• the principles governing res judicata cannot be applied in the probate jurisdiction unqualified by the public interest in giving effect to a testator's last known, due expression of testamentary intentions.

1. The general law as to the point in time at which a revocation order operates has been affected by legislation in Tasmania. The relevant provision is s 28 of the Administration and Probate Act 1935 which provides as follows:

"Protection of persons acting in probate or administration

(1) Every person making or permitting to be made any payment or disposition in good faith under a representation shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of the representation.

(2) Where a representation is revoked, all payments and dispositions made in good faith to a personal representative under the representation before the revocation thereof are a valid discharge of the person making the same; and the personal representative who acted under the revoked representation may retain and reimburse himself in respect of any payments or dispositions made by him which the person to whom representation is afterwards granted might have properly made."

1. Where a person, who has standing, asserts a lack of testamentary capacity in respect of a will the subject of a grant of probate, then the jurisdiction of the court is invoked: Virginie-Pitel v Campbell [2010] NSWSC 1440, where Slattery J said at [37]:

"37 The law that applies to the revocation of grant of probate in common form may be clearly stated. The Court has a discretion to revoke grants of probate and letters of administration which are valid until they are set aside in exercise of that discretion: Ex Parte Keegan [1907] NSWStRp 67; [1907] NSWSR 67; (1907) 7 SR (NSW) 565. There are a number of common circumstances in which a grant of probate may be revoked: where a false suggestion has occurred, whether fraudulently or ignorance of the truth which obscures a defect in title of the grant (such as for example where the testatrix does not know and approve certain words which appeared in the will_, Re Fenwick (deceased)_ [1972] VicRp 75; [1972] VR 646); where the will has been discovered after a grant of letters of administration or a later will after a grant of probate, Re Estate of Wilson (1991) 24 NSWLR 334; where executors or administrators become incapable of acting, Bates v Messner (1967) 67 SR (NSW) 187; where it appears to the Court that a grant of probate or administration ought not to have been granted or that it contains an error, if the Court is satisfied that the grant would be revoked at the instance of a party interested. The executor under a revoked grant is still bound to account, and to pay and transfer money and property received in his or her capacity as executor and to be appropriately reimbursed by a subsequent executor: Probate and Administration Act 1898, ss 40D and 90."

1. At the date of the July will in 2006 the Wills Act 1992 applied. However, while s 10 set out the requirements as to the writing and execution of a valid will, that Act was silent as to testamentary capacity.
2. The classic test of whether or not a person has testamentary capacity is as stated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 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 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."

1. That statement of principle has been applied in this Court by Wood J in Howroyd v Howroyd [2011] TASSC 73 at [55]- [60], and by Evans J Tasmanian Perpetual Trustees Ltd v Rourke [2012] TASSC 44.
2. In respect to unsoundness of mind arising from the "decay of advancing age", Cockburn CJ in Banks v Goodfellow stated at 566 as follows:

"... 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".

1. In respect of deficiency of memory, in Banks v Goodfellow at 568, Cockburn CJ said the question is:

"... were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will?"

1. "Feebleness, grave illness or extreme age are not sufficient in themselves to disentitle the testator of his right to dispose of his or her property by will": Howroyd v Howroyd, (above) at [59], where Wood J cited Re Estate of Griffiths (dec); Easter v Griffiths (1995) 217 ALR 284, per Kirby P at 295, and Banks v Goodfellow at 560. They will only do so if age or illness so affected the mind of the testator in regard to testamentary disposition: In Re White (dec); Brown v Free [1950] NZGazLawRp 66; [1951] NZLR 393; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707.
2. Where the evidence raises a doubt about a testator's testamentary capacity, it is necessary that there be a "vigilant examination" of the whole of the evidence. The standard of proof is the balance of probabilities: Howroyd v Howroyd (above) at [60] citing Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 453.
3. The quantum of evidence sufficient to establish a testamentary capacity depends upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 570 per Isaacs J citing Barry v Butlin (1938) 2 Moo PCC at 484; Jones v Godrich [1844] EngR 1077; (1844) 5 Moo PCC 16 at 19-20, and Wrench v Murray (1843) 3 Curt 623, 635.

1. Where it is sought to revoke a grant of probate on the basis of testamentary incapacity if there is evidence before the court to "incite its suspicion" that the deceased did not have testamentary capacity, the onus is then on the party asserting the validity of the will to remove the suspicion by proving affirmatively that the testator had testamentary capacity: Lacerenza v Veronica Maria Calautti as Executor of the Estate of Anna Lacerenza (Dec) [2005] WASC 46 at [113] per Jenkins J citing Waring v Waring (1848) 6 Mood CC 341.
2. The onus imposed on the party propounding the will is in general discharged by proof of capacity, and the fact of execution from which the knowledge of and assent to the contents of the will are assumed_: Landers v Landers_ [1914] HCA 74; (1914) 19 CLR 222 at 233 per Isaacs J.
3. In Virginie-Pitel v Campbell (above) at [41]-[43], Slattery J summarised the evidential and legal burdens in a case such as this in the following terms:

"41 The applicable onus of proof has been explained in Bailey v Bailey (1924) HCA 21; (1924) 34 CLR 558 and Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.

42 Where a doubt as to testamentary capacity is raised satisfying the evidentiary onus on the defendant, the onus passes to the propounder of the will to satisfy the Court that the will being propounded is valid; but this does not mean that a doubt is enough; the doubt must be such that the Court considers it sufficient, as a Court of conscience, to prevent it finding for the will propounded: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 and Re Estate of Hodges (Deceased); Shorter v Hodges (1988) 14 NSWLR 698.

43 A cautious approach to cases such as the present one is invited by authority. The reason for this was explained by Gleeson CJ in Re Estate of Griffith (Deceased); Easter v Griffith (1995) 217 ALR 284, at 290:

'This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. 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. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that the woman who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that if the evidence of an unsound mind, the decision may be very difficult."'

1. Stirling does not limit his case to the question of his father's testamentary capacity on the day on which the July will was actually signed, namely 23 July 2006. He contends that his father made a will in accordance with antecedent instructions which were provided to Mr Manser earlier in July 2006.
2. While the sound disposing mind must exist at the execution of the will, the testamentary capacity need not be as complete at the time of execution of the will as it was at the time of giving instructions for the will: Howroyd v Howroyd (above) at [61] citing Perera v Perera [1901] AC 354 at 362.
3. Where instructions for a will are given on a day prior to its execution, the former is well established as the crucial date: Bailey v Bailey (above) at 572 citing Perera v Perera (above); Parker v Felgate (above); Barry v Butlin (above) and Griffin v Palmer (1617) Brown and Gold, Part I, 43 at 44.
4. The days when the instructions are given for the will are more important than the day upon which the will is executed in terms of competency: Landers v Landers (above) at 233 per Isaacs J.
5. If a testator with the requisite capacity gives unequivocal instructions for a will and is then presented with a document to sign, the testator (without reading the document) can assume that the will deals with his or her property in accordance with the instructions and can therefore be taken to have knowledge and approval of the contents of the will when signed: Harrison v Petersen [2000] QSC 415 at [56] per Mullins J.
6. The following statement from Parker v Felgate (above) per Hannen P at 173; cited in Perera v Perera at 361 per Lord Macnaghten, and also cited in Lacerenza v Calautti (above) at [117] is instructive:

"If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, "I gave my solicitors instructions to prepare a will making a certain disposition of property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out." (Emphasis added.)

1. In Parker v Felgate (above) the testatrix gave instructions for her will. There was no issue about her capacity or the detail of the instructions. She subsequently became ill and went into a coma. Her will was prepared in accordance with the instructions. She was roused from her coma to speak about her will. The will was rustled in front of her face and a doctor said to her, "This is your will. Do you wish this lady to sign it?", to which she responded, "Yes". The woman then signed the will for the testatrix in the presence of the witnesses. The question was put to the jury whether the testatrix was capable of understanding and did understand that she was engaged in executing the will for which she had given instructions to a solicitor and the jury answered in the affirmative.
2. The so-called principle in Parker v Felgate is not without controversy. As explained by the learned authors Dal Pont and Mackie, Law of Succession 2013 at [2.20], the rule:

"... should be approached with some caution, as it is premised on proof of the testator's understanding that he or she at some time previously had given instructions for a will, and that he or she was executing a will in accordance with those instructions."

1. However, as the learned authors point out, also at [2.20], the judgment has been often cited and applied in a manner which "reveals its entrenchment as part of the common law".
2. Regard should be had to the jury charge in Parker v Felgate in the form expressed by Hannen P at 173-174:
   • there must be evidence that the testator gave instructions to a solicitor to make a will and that the solicitor has prepared the will in accordance with the instructions;
   • where that is so, the testator must be able to "think thus far" both that the instruction to prepare the will was given and that it related to the disposition of property, and that there is "no doubt" that the solicitor "has given effect" to the intention of the testator;
   • it is not necessary that the Testator be able to recollect "in every detail" the instruction to the solicitor; and
   • even if the testator lacks capacity "to go over the whole transaction", it is sufficient if the testator has the capacity to reason that "I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it."
3. In Perrins v Holland [2011] Ch 270; [2010] EWCA Civ 840 at 32, the Chancellor, with whom Jackson LJ agreed, approved of the following formulation by Lewison J:

"In a case in which the principle in Parker v Felgate is applied it is not necessary to prove knowledge and approval of the will, provided that (a) the testator believes that it gives effect to his instructions and (b) it does in fact do so."

1. Delay in seeking revocation of a grant of probate in common form can be a bar to such a claim: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [136] per White J.
2. There may be a need for other features beyond delay such as acquiescence in the grant: Dickman v Holley; Estate of Simpson at [136], and the observations of Duggan J in Rasheed v Rasheed [1999] SASC 88 at [55]- [57] and [63].
3. Other relevant features recognised by the authorities as relevant abuses of process are:

(a) Knowledge of the facts, matters and circumstances upon which the later claim of testamentary incapacity is based: Bramston v Morris; Estate of Murray BC9303644 per Powell J (unreported Supreme Court of NSW Probate Division 20 August 1993). See also Mohan v Broughton [1899] P 211; [1900] P 56, which case suggests that, in a case in which a person has knowledge of the facts which could justify opposing or impugning a grant, stands by even for a short time, that person may be debarred from later prosecuting an application to revoke a grant.

(b) Applying for probate of the will which would also strongly suggest there were was no evidence to grounds for invalidity: Neilson v The Public Trustee BC9201888 (unreported Supreme Court of NSW Probate Division 8 May 1992).

(c) The failure to oppose the common form grant of probate: Bramston v Morris (above).

(d) The failure, without apparent reason, to seek revocation of the grant of probate. As to the need to explain the delay, see the summary of the authorities in Dickman v Holley (above); Estate of Simpson (above) at [136]-[142] and Bramston v Morris; Estate of Murray (above). See also Neilson v The Public Trustee (above).

(e) The institution of family provision proceedings and the compromising thereof in respect of the will admitted to probate: Bramston v Morris (above).

(f) The loss of evidence as a result of the delay and difficulties caused to the defendant in presenting his case on the issue of incapacity: Dickman v Holley; Estate of Simpson (above) at [144]: Rasheed v Rasheed (above).

(g) Admitting the validity of and then receiving payment of a legacy under the will: Merryweather v Turner (1844) Curt 802; 163 ER 907.

(h) Acquiescing in proceedings to determine the next of kin to whom the estate should be distributed and allowing the estate to be distributed: Mohan v Broughton (above).

1. In Lucas v Konakas (above), Lindsay J, in denying relief, took into account as the ultimate dispositive consideration, the acquiescence of the applicant in the grant of probate "in respect of a will the execution of which he procured, knowing at the time of its execution that the sole beneficiary named in the will was his step sister, with his daughter (granddaughter of the deceased), accepting at that time that a will in those terms (not unreasonably) represented the intention of the deceased" at [323]. His Honour also focused upon other disentitling conduct on the part of the applicant about which he made findings at [324]-[341]. It would seem however, that he did not formulate a principle that acquiescence, of itself, is a disentitling factor in the exercise of the jurisdiction to revoke a grant.
2. At [109] Lindsay J said:

"Independently of any operation of equities jurisdiction, a strong evaluative, discretionary element is generally intrinsic to an exercise of probate jurisdiction. It is, for example, a moot point whether equities 'discretionary defences' of latches, acquiescence and delay have any scope for operation, as such, in probate litigation. Independently of equity, an exercise of probate jurisdiction may require the Court to take into account facts able, by close analogy, to be characterised as latches, acquiescence or delay"

1. Moreover, acquiescence should be understood in the sense explained in Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 at [79], per Gummow and Hayne JJ, namely, as "best understood as requiring calculated (that is, deliberate and informed) inaction by (a person) or standing by, which encouraged (another person) reasonably to believe that the omissions were accepted or not opposed".
2. The learned authors Meagher, Gummow and Lehane Equity Doctrines & Remedies, 5th ed, at 38-015 point out that acquiescence "has been used in a variety of imprecise and inconsistent senses" and ought to be confined to identified cases of estoppel. The authors also note at 38-055 that mere lapse of time is not sufficient although it may permit the drawing of an inference that there is prejudice, which is of course an important consideration. See also the observations of Duggan J in Rasheed (above) at[55]-[57] and [63].

1. Against the background of the evidence I have set out above it is contended by Mr McElwaine on Tamzin's behalf, that the testator lacked the requisite testamentary capacity to execute the July will, and that the will had not been prepared in accordance with the testator's prior competent instructions so as to invoke the rule in Parker v Felgate.
2. Mr McTaggart contends the opposite on Stirling's behalf.
3. On behalf of the litigation guardian for the testator's grandchildren and remoter issue, Mr Turner makes no submissions as to capacity, directing submissions only to the issue of "acquiescence" and whether the due administration of the estate of the testator demands revocation of the grant.
4. In my view, the primary question of testamentary capacity and the issue of the application of the rule in Parker v Felgate are relatively simply resolved relying on clear evidence pointing in only one direction. The critical evidence, as I apprehend it, is that of Professor Ashby on the first issue, and Mr Manser on the second.
5. Professor Ashby was of the opinion that the testator lacked capacity when he executed his will on 23 July 2006. The critical passage in his oral evidence as set out above in these reasons was:

"...at that particular moment when that will was signed, assuming when it was, when the witnesses say it was on the 23rd, can I say that categorically that he had capacity or not at that moment, no, I can't, but what I can say is on the balance of probabilities, viewing the evidence that was presented to me when I made the affidavit, that I believe I should advise the Court that it is unlikely that he would have understood what he was signing." (Emphasis added.)

1. Professor Ashby's view was not contradicted by other expert evidence. Indeed, as can be seen, the evidence of the other expert witnesses who offered an opinion of their own was of a similar tenor, if not as definitive or as conclusively stated. I record that Professor Dunne did not see the testator after 14 July 2006, and whilst Dr Vidor saw the testator on 22 July, it was before the commencement of the use of the syringe driver. In my view, Professor Ashby's expert opinion prevails over descriptions of the testator on 23 July 2006 given by lay witnesses such as Mr Manser, albeit he was an experienced solicitor, and Mr Ng, albeit he was a retired long practising pharmacist.
2. It is true that Professor Ashby depends in part for his opinion on Tamzin's observations of the testator after the introduction of the syringe driver, but Tamzin was not challenged as to those observations in cross-examination or undermined or contradicted by other evidence. In his written closing argument Mr McTaggart submitted that ultimately whether Tamzin's observations are reliable is a matter for the Court. I am satisfied they are reliable in all material respects, notwithstanding variations in her estimates of the frequency of the doses of breakthrough medication she administered. It must be remembered that Professor Ashby, whilst not wishing to suggest that the medication was of no importance, agreed that the dying process for people dying of cancer on the last day of life presents cognitive issues such as those seen in the present case.
3. Professor Ashby also depends in part on Tamzin's recording of and her recollections as to, the drugs she administered to her father via the syringe driver, but again Tamzin was not challenged as to those observations in cross-examination or undermined or contradicted by other evidence.
4. Professor Ashby's uncontradicted opinion is determinative of the primary issue of capacity in my assessment. Any differences between the accounts of Tamzin and Mr Manser and/or Mr Ng as to the order of events or their detail do not, in my assessment, inform the determination of that central question. I should add as to Mr Manser's role that I do not regard the statement made by Tamzin in her affidavit in the TFM proceedings that Mr Manser had discussed all her father's concerns as to the provisions of the July will to her father's satisfaction as constituting a significant inconsistency in her evidence as to what Mr Manser said or did when he visited the testator. The relevant paragraph in that affidavit contained a generalised account and was sworn in proceedings of quite a different nature to the present action.
5. On the basis of Professor Ashby's opinion I am satisfied on the balance of probabilities that the testator lacked the required testamentary capacity when he executed the July will. I do not need to decide this issue by reference to the discharge of the onus of proof borne by the parties respectively. I am positively satisfied that the evidence establishes testamentary incapacity on the part of the testator at the time of the execution of the July will.
6. Even if the testator had a more limited capacity to sign a document prepared in accordance with earlier instructions, the July will was not a will so prepared. The July will was plainly not drawn in accordance with the testator's instructions as contained in his letter of 5 July 2006 to Mr Manser, and as modified by the 12 July email to Mr Manser from Stirling on behalf of the testator.
7. As submitted by Mr McElwaine in his closing address, the testator's instructions required a division of his legal and beneficial interests in defined property to be held, albeit on a discretionary trust, as to one half for the children of Stirling and one half for the children of Tamzin. Under the will as drawn the property was not so divided, and pursuant to the Testamentary Trust, the grandchildren have no interest in the capital or income: their only right is to insist on a due administration of the trust and, perhaps, to be considered by the trustee as a beneficiary in each year. This is not a case of a minor difference between the testator's instructions and the will. And, on any view of it a very substantial component of the testator's estate went into the Testamentary Trust.
8. The will does not reflect the testator's instructions in a substantial respect, and Mr Manser's evidence clearly demonstrates that he did not follow the testator's instructions and that he did not explain to him what he had done so as to allow the testator to ratify the deviation.
9. That is determinative, in my view, of the application of the rule in Parker v Felgate. An essential limb of that rule as set out above in these reasons is not established.
10. Moreover, the position would be unaltered if Mr Manser visited the testator on Saturday, 22 July, as he stated, as Mr Manser's evidence at its highest cannot establish that the testator appreciated the legal nature of the divergence between his instructions and the actual terms of the will as prepared so as to constitute the will on 22 July as one then reflecting the testator's instructions.
11. As I apprehend it the final distillation of what passed between Mr Manser and the testator is contained in the following passage from Mr Manser's oral evidence:

"I asked him several questions, firstly, whether he had received and read my letter and its enclosure [the July will], and whether he'd understood them, and he signified that he had. I asked him then what he thought. I received no interrogatory or negative response to that and he then proceeded to speak to me about his business assets generally."

1. Further still, even were it otherwise, Professor Ashby, when asked to say whether the testator would more likely than not have been able to understand on 23 July that it was his will that he was signing, Professor Ashby's answer was only that it was possible that the testator may have recognised it as his will. Thus another essential limb of the rule in Parker v Felgate would not be established to my satisfaction.
2. The position would also remain the same even if it is accepted that Mr Manser, whenever he visited the testator at his home, did, contrary to Mr Manser's denial, advise the testator in answer to a comment from Tamzin that the will "doesn't say the Trust is 50/50" in the terms "your trustees will ensure that". On any view, such advice would have been an incomplete and misleading explanation of the effect of the clauses that Mr Manser had drawn establishing the Testamentary Trust in the July will.
3. I note that whilst, as I have said, Stirling did not challenge Tamzin in cross-examination on the matters relevant to assumptions that may have been made by Professor Ashby for the purpose of forming his opinion, Mr McTaggart, in his closing submissions on behalf of Stirling, attacked Tamzin's credit generally on a number of grounds, including, by way of example, the surprise introduction of her diary; the absence in any of the emails between her and Stirling and Richard Phillips of any of the contents of the couple of separate pages Tamzin stated she had written for inclusion in her affidavit in the TFM proceedings covering "the writing of the July will" (see pars[114]-[116] above) and her refusals to accept that she collected the will from Mr Manser's office on Friday, 21 July 2006, or that she telephoned Mr Manser on Monday, 24 July, to tell him of her father's death.
4. I have considered each attack on Tamzin's credit as raised, and to the extent that the resolution of any of Stirling's contentions involves my impressions of Tamzin as a witness, I make the following observations.
5. I found Tamzin to have the appearance of an honest and reliable witness and she impressed me as such. Her evidence, to my mind, was careful and considered. She answered questions without hesitation and did not prevaricate. Her evidence did not contain what I regard as glaring inconsistencies or signs of untruthfulness. I gained the impression that her concerns as to her understanding of her father's wishes being met were genuine and not feigned for her acknowledged personal advantage, or that of her daughter, in the event that probate of the July will were to be revoked. She was a good historian generally and her evidence had verisimilitude, in my view. If there was room for concern about parts of her evidence in recounting her dealings with her brother Stirling and his treatment of her, I found no basis for inferring that any self-interest on her part, or any animosity towards him, resulted in her fabricating or falsifying evidence as to the drugs she administered to her father on the last day of his life, or as to her observations of him on that day or the previous day. I refer there of course to the aspects of Tamzin's evidence relevant to Professor Ashby's opinion.
6. In making these observations as to credit I bear in mind that Tamzin may well be genuinely mistaken about some things such as, again for example, whether she collected the will from Mr Manser or rang him to advise him of her father's death. On the other hand, she may be correct about those things. What I am satisfied of on balance is that she was not being deliberately untruthful. Indeed, some of the matters I have mentioned are not such that a dishonest witness would be likely either to choose, or to feel the need to regard as evidence about which it might be necessary to dissemble.
7. Specifically, as to Tamzin's diary, she was very closely and rigorously cross-examined as to its preparation and contents. However, she was unshaken as to the nature, number and placement of her diary entries. Her explanations were consistent and were entirely plausible, in my view. I was not left in any doubt that the diary was a genuine record of its contents.
8. Finally, it follows from my finding that the testator lacked capacity to execute the July will, that I do not need to consider Tamzin's contention that her father did not know and understand the contents of his will. This is a concept separate from testamentary capacity, although they sometimes overlap; Romascu v Manolache [2011] NSWSC 1362 at [201], and Veall v Veall [2015] VSCA 60 at [173].

Matters relevant to the discretion to revoke a grant

1. As was stated by Lindsay J in Lucas v Konakas (above) at [211], the central object which the court must keep in view in the exercise of probate jurisdiction generally, and in dealing with applications for the revocation of a grant in particular, is the due and proper administration of the estate before the court, having regard to any testamentary intention of the deceased and the interests of parties beneficially entitled to the estate.
2. This is my principal focus in approaching the exercise of my discretion to revoke the grant of probate of the July will and whilst having regard of course to the question of Tamzin's acquiescence. affirmation and delay, I nonetheless must have regard to all of the circumstances of the case (Neilson v The Public Trustee; the Estate of E L Neilson (above) at [304]. The probate jurisdiction is not primarily concerned with claims of right between adversarial parties. It is concerned with the due administration of property, having regard to the interests of the dead, the living and the public (Lucas v Konakas at [108]).
3. As Lindsay J said at [293]:

"The power to revoke a grant .... is not exercised as of course, or even as matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case ... Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion. However, having regard to the particular features of a case, it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years ... ." (Emphasis added.)

1. I instruct myself accordingly. In particular I adopt the approach suggested by Lindsay J in Lucas v Konakas (above) at [109] that independently of equity, an exercise of probate jurisdiction nonetheless requires the Court to take into account facts able, by close analogy, to be characterised as acquiescence or delay, and of course any resultant prejudice.
2. I do not overlook the submission made by Mr McTaggart in his written closing argument that:

"Factors relevant to the Plaintiff's application for revocation of probate include the following from the checklist set out by Lindsay J in [Lucas v Konakas] at [320]:

(a) The terms, the size and composition of the estate of the deceased at the time of death, and currently.

(b) Whether any (and, if so, what) part of the estate has been distributed (and, if so, when and to whom).

(c) The nature and foundation of the interest claimed in the estate by each applicant for a revocation order.

(d) The nature and foundation of each competing interest.

(e) The date, and circumstances, of each applicant's first knowledge of:

(ii) the application upon which the grant was made; and

(f) The existence and duration of any delay on the part of an applicant in challenging any will, or grant, under challenge.

(h) The grounds relied upon by each applicant to contend that:

(ii) Any underlying will, or wills, should be held invalid.

(i) The evidence available, or reasonably thought likely to be available, to each applicant in support of a prima facie case of invalidity of a will.

(j) The nature and scope of any inquiries thought to be made by an applicant for the purpose of obtaining evidence in support of his or her application."

Consideration and findings as to acquiescence, delay and prejudice

1. I turn now to a consideration of Stirling's contentions as to acquiescence and affirmation and delay and prejudice. In my view, these contentions can be examined in three broad, but by no means discrete, categories. They are first the question of acquiescence in or affirmation of the July will, second, delay in bringing the present action and resultant prejudice to Stirling, and third, steps taken in administration of the testator's estate and any resultant prejudice to the estate or its beneficiaries.
2. In his written closing submissions, made on Stirling's behalf, Mr McTaggart argued as follows:

11 There was significant delay in bringing the present action (in excess of 9 years) and acquiescence on the part of the Plaintiff by joining in the obtaining of probate (a judicial act in the character of an order: Estate Kouvakas at [228]) [sic] and in assisting in the administration of the will. In addition, the Plaintiff opposed the TFM proceedings of her father's partner, including by her own affidavit.

12 The Plaintiff claims that her concerns regarding her father's capacity to make the July Will ('the Will') and as to her father's concerns regarding the Will arose on the day it was made; ie 23 July 2006 (T117 line 44-46). It was therefore at this time that she must have had concerns about her father's capacity to understand Mr Manser's explanation of the Will and whether it reflected his intentions. On her case she therefore had sufficient knowledge of the facts to infer knowledge of her rights for acquiescence to apply from this time: Streeter v Western Areas Exploration Pty Ltd (No2) at [638]-[639].

13 She provides no explanation for her delay in the affidavits her counsel read on the trial. She sought to explain her delay through her Facts and Contentions dated 9 February 2016 on the basis that there was no need for her to commence proceedings for revocation until the Defendant repudiated the equal division of assets and that he did so by email on 1 November 2012. It is claimed that the delay since November 2012 is explicable by the litigation and the acrimony between the Plaintiff and the Defendant (para[41], 6th bullet point). The last submission is not developed to elucidate any reasonable basis for it.

14 The deceased died on 24 July 2006. Probate was obtained on 7 September 2006. Action 2014 of 2015 was not commenced until 23 October 2015.

15 The explanation for delay in respect to the period up to 1 November 2012 referred to above reveals that notwithstanding the Plaintiff's knowledge of her concerns regarding her father's capacity, she made a deliberate decision not to seek revocation of probate whilst the trust was to be distributed to the extent of 50% to her child. There is no explanation for the delay from 1 November 2012 until 23 October 2015."

304 In his written closing address Mr Turner submitted on behalf of the litigation guardian:

"18 Much the same can be said of the present circumstances namely:

• The plaintiff has joined in application for a grant of probate of the July will and is one of the persons to whom probate was granted;
• She knew at the time of execution of the will that a discretionary trust in favour of the grandchildren was to be created ;
• As one of the executors, she has joined in the due administration of the estate - in terms of meeting the liabilities and distribution of assets by way of bequests and the conclusion of a Testators Family Maintenance Act claim. So too, the testamentary trust has been constituted and distributions of its income made.

19 Significant weight ought to be accorded to that; and also to the testamentary intention of the late Mr Hookway - to benefit his grandchildren.

20 These things impel, it is respectfully submitted, a determination that the due and proper administration of the Estate is not served by revocation of the grant."

1. In terms of acquiescence by jointly obtaining a grant of probate of the July will in common form it seems to me that Tamzin's state of mind is of considerable importance. She told Mr Turner in cross-examination that she was concerned about her father's testamentary capacity on the day he signed the will, but she was of the belief that "the trust was still fifty-fifty". She said she continued to believe that until "Stirling said he would no longer be conciliatory". That was on 1 November 2012.
2. That evidence is consistent with what she said in cross-examination by Mr McTaggart. As already noted, Tamzin told Mr McTaggart that at the date her father signed the July will she understood that the trustees were to "distribute fifty-fifty", but she accepted that when she instituted an action in July 2012 against Mr Manser's firm of lawyers, Simmons Wolfhagen, for negligent advice as it pertained to the respective shares of the testator's grandchildren and remoter issue, she knew that there was no guarantee that the trustees of the Testamentary Trust would make distributions from the Trust in the ratio of 50% to her daughter and 50% between Stirling's three children. She accepted that she nonetheless made no challenge to the validity of the July will until the current action was commenced on 23 October 2015.
3. I accept that it was reasonable for Tamzin to have doubt about her father's testamentary capacity, but I nonetheless believe that the will accorded with her understanding of his testamentary intention because, I accept that Mr Manser, whenever he visited the testator at his home, did, contrary to Mr Manser's denial, advise the testator in answer to an observation from Tamzin that the will "doesn't say the Trust is 50/50" by stating "your trustees will ensure that".
4. I accept it was reasonable that because I accept Tamzin's evidence generally and that question and the answer were recorded by Tamzin in her diary. I am also confident in making this finding because there can be no doubt that Mr Manser was called to the house and there is no other explanation to my mind as to why Tamzin had him summoned if it had not been to address her father's concerns as to the will as noted by her. The day Mr Manser visited does not matter for the purpose of this finding.
5. Mr McTaggart's submission that there was no explanation from Tamzin as to her delay in bringing the present action after I November 2012 does not pay sufficient regard to Tamzin's evidence in re-examination where Mr McElwaine directed her attention to a part of the transcript where Mr McTaggart had asked her about an email from her to Stirling of 19 October 2010, wherein she was expressing to Stirling, circumstances in which she would not get any benefit from the Testamentary Trust. She agreed that at that time she had not applied to challenge the capacity of her father to make the July will. Mr McElwaine asked her why she had not done so, and she replied that she had already been orally advised by Patrick Toomey of lawyers Toomey Maning & Co in March or April 2010 that she "was out of time" and that "the will was set".
6. Notwithstanding that Mr Toomey was not called to verify that he gave that advice, I regard that as a sufficient explanation for any delay between 1 November 2012 and February 2015 when Tamzin first received advice from Mr McElwaine that she could institute the present action. I regard any hiatus in the explanation of delay between that latter date and the date the present writ was filed as insignificant. The parties were already heavily involved in litigation by then.
7. To the extent that it can be said that Tamzin affirmed the July will by her involvement in the application under the Testator's Family Maintenance Act brought by the testator's widow, I again regard Tamzin's governing state of mind as determinative. I do not regard any failure on Tamzin's part to disclose in her affidavit in those proceedings the details of her observations as to her father's testamentary capacity as an abuse of process. Those proceedings were of a very different kind to the present action, there was nothing on Tamzin's part akin to malversation and I note that the proceedings were settled by agreement.
8. It follows that I do not accept Mr Turner's submission that in joining in the application for the grant of probate and accepting the offices of executor and the trustee, "the plaintiff has eschewed the rights/entitlements conferred on her by the earlier, June 2006, will".
9. A further aspect of the delay in bringing the present action is said, on Stirling's behalf, to be that recollections of material witnesses have faded and documents have been lost.
10. Stirling relies on the often cited passage from the judgment of McHugh J in Brisbane South Regional Hospital v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 555, where his Honour said:

"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates.' [11] Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [12], 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."

1. Mr McTaggart submitted in his written closing argument as follows:

"18 Mr Manser was contacted by the Plaintiff in late May 2010 but she didn't raise any question of her father's capacity. He was not asked to recall the events surrounding the making of the will until late December 2015 (T372) when he was asked to do so by the Defendant's representatives. Dr Vidor's opinion was not sought until 12 February 2015 (CB1581). Mr Simons was not asked to recall the events on 22 and 23 July 2006 until about June 2015 (T172-3). Mr Ng was not approached by the Plaintiff until November 2015 (T395). There is no evidence as to whether Renate Reinisch ('Renate'), Mrs Ng and David Morris have ever been asked by the Plaintiff to provide statements. If these witnesses had been contacted earlier the medical witnesses would have had the advantage of the observations of the deceased by these people whilst events were still fresh. As submitted below the experts rely upon the observations of persons who were in contact with the deceased shortly prior to his death to assess the effect upon him of the medications.

19 Stirling Hookway can't recall what his father told him regarding his father changing his mind regarding the fixed holdings of the assets of the testamentary trust (T322 line 7-14, T324 line 15-25 and T326 line 26-39).

20 Mr Manser has limited memory of his dealings with the Defendant and the deceased and largely relies upon his file notes (T348 line 16-19 and T368 line 41-45). For example on 18 July 2006 he spoke with the deceased for 20 minutes but only records in his file note the addition of two trustees. It is likely that they would have discussed why the deceased wanted the additional trustees. With fixed holdings he would not have needed additional trustees but with a discretionary trust he may have. Mr Manser no longer has the original notes he took at his 22 July 2006 meeting with the deceased although he did say that he believed they were as brief as the notes he was accustomed to making on the file (T365 line 10-15). Mr Manser couldn't recall his conversation with the deceased on 22 July 2006 in sufficient detail to advise the Court what he asked the deceased after he received verbal confirmation that the deceased had received and read the will (T375 line 32-T376). It is likely that over the course of an hour Mr Manser would have discussed the Will in more detail than he can now recall and that if the deceased had any concerns with the Will he would have raised them.

21 Dr Vidor's records of his treatment of the deceased have been destroyed (T92 line 1-20). He was dependent upon his memory ('as far as my memory goes': T99 line 16-17) for his observations about the deceased's health on 22 July 2006.

22 Mr Simons was not asked to recall the events on 22 and 23 July 2006 until about 9 years later. The limitations of his recollections are discussed below.

23 Mr Ng cannot remember any further details of the circumstances surrounding the signing of the will on 23 July (CB2046 [11]). He can't now say what discussions took place with the deceased about the will before he signed it (T392 line 41-2 and T393 line 41-T394 line 3).

24 If probate had not been sought then it is likely that Renate Reinisch would have been in a position to advise this Court as to her observations regarding her partner's capacity at relevant times."

1. As to Mr Manser, it is true that he was not asked to recall the events surrounding the making of the July will until late December 2015. However, as a practising solicitor he had his professional file recording all relevant events to rely upon and, in my view, as a matter of common experience, it is doubtful whether as an actively engaged legal practitioner, other than for a short period after the events had occurred, he would have retained a detailed memory of those events independently of his file. In any event, as a matter of fact, I have not been hindered in making findings as to Mr Manser's instructions or advice by any lack of information beyond that recorded by him. What he recorded demonstrates the divergence between his instructions and the will, and the question of testamentary capacity would always have been the subject of expert evidence, as it was.
2. As to Dr Vidor, he did agree in oral evidence that because his former medical practice had been dissolved, with the result that the testator's medical records kept by him were no longer available, his affidavit had been prepared by him without the benefit of any contemporaneous note that he had made of his attendances on the testator, and that it was based on his memory and also the notes from the Palliative Care Service that he had read.
3. He also agreed that he had been first asked for his opinion for the purposes of these proceedings on 12 February 2016, and the source of his information as to what occurred on 23 July 2006, and as to when breakthrough medication was administered, was Tamzin.
4. Nonetheless, it must be remembered that Dr Vidor's evidence-in-chief was that he was unable to make a retrospective assessment of the testator's capacity to make and understand his will on the late afternoon of 23 July 2006. He said that such an assessment would require specific questioning at the time to ascertain his awareness and understanding of the decisions and issues involved in making his will. And he said that he was not requested to make an assessment at the time and could not do so in retrospect.
5. Despite this however Dr Vidor stated that he did have significant concerns regarding the testator's capacity at the relevant time. In the result it was not necessary for me to rely on Dr Vidor's evidence except in a most general way.
6. An important difference in considering Brisbane South Regional Hospital v Taylor (above) in an action which has been tried as opposed to an application to extend time, is that in the former case all of the available evidence has been heard and the trial judge is well placed to know the relative importance of the evidence led and tested on the trial and evidence that might have been lost or deteriorated in quality. In this regard I am able to say that in the result I did not find that I was hampered by any lack of a more detailed recollection of events from Dr Vidor or Mr Manser or Mr Simons or Mr Ng. And not having cause to disbelieve Tamzin, she being the testator's principal carer and attendant, I do not apprehend that I would have been particularly assisted by evidence from Renate Reinisch.
7. I should say something about Stirling's evidence, that he could not recall what he intimated he had been told by his father as to his father changing his mind regarding the fixed holdings of the assets of the Testamentary Trust. Put simply I did not believe him.
8. What Stirling first said in cross-examination by Mr McElwaine as to his father's intentions as to the Testamentary Trust is set out in full from the transcript at [143], [144] and [146] above in these reasons. In short Stirling agreed that his father wished his children to have a defined interest in particular properties, and that he never intended Stirling's children to be considered as beneficiaries of the Trust to the extent of 100% of income or capital.
9. Stirling then suggested in the passage from the transcript set out at [160] above that his father changed his mind on what he wanted to do with Lots 3 and 6 saying that there was a discussion, after the testator signed the letter to Mr Manser of 5 July, "around" his father saying that he did not want Lots 3 and 6 to be held as to 50% for his children and 50% as to Tamzin's children. Stirling said that he could not remember what his father said, he could not remember exactly what his father told him and he could not remember the words used.
10. I found Stirling's evidence set out at [160] at the time he gave it to be quite preposterous. I gained the distinct impression at the time that he was seizing upon an opportunity to turn things in his favour by suggesting a volte face on his father's behalf, but that he was not prepared to elaborate. I did not gain the impression that he was genuinely affected by some lack of detailed recollection, but rather that he was either not willing, or not sufficiently rehearsed, to condescend to untruthful detail.
11. The suggested change in mind on his father's part as to this central feature of his testamentary intentions would have been sufficiently momentous that details of the relevant conversation is extremely unlikely, in my view, to have eluded Stirling's otherwise remarkably good recollection. Moreover it was not borne out by the email from Stirling to Mr Manser of 12 July 2006, and Stirling accepted that he had no further discussions with Mr Manser after that date. The testator did speak to Mr Manser on 18 July 2006 but there is no suggestion on the evidence that he changed his instructions to Mr Manser beyond requesting that two additional trustees be added. Indeed, Mr Manser accepted that prior to receipt of the email of 12 July he received no instruction as to any other alteration to the terms of the Trust the subject of the testator's letter of 5 July, and he agreed that if on 18 July 2006 when the testator rang him he had told Mr Manser to alter the Trust requested in the letter of 5 July he would have made a note about that.
12. It follows that I do not accept that any delay on Tamzin's part in bringing the present action resulted in any relevant deterioration in Stirling's memory.
13. The third category of conduct relevant to my consideration of the exercise of my discretion to revoke probate of the July will comprises the steps taken by Tamzin, and also Stirling of course, in the administration of the testator's estate and any prejudicial impact upon the estate or its beneficiaries as a consequence.
14. In his closing submissions Mr McTaggart, with whom Mr Turner joined on behalf of the litigation guardian, wrote:

"31 If the Plaintiff had not joined in proving the Will or had sought to revoke probate at an earlier time and was successful in doing so, then it is unlikely that the estate and or Stirling and Tamzin Hookway would have leased the 'trust' properties through Hookway Aerospace (T311 line 4-17). Therefore Hookway Aerospace and the other companies of which she and her brother are shareholders would not have gone into liquidation . She would have acquired the 50% of the residue of her father's estate which she desired. As a result there would not have been the following liquidator's costs:

• CB1441 meeting of creditors on 31 October 2014 for Hookway Aerospace at which the liquidators remuneration was approved at $231,990.40 plus GST;
• CB1437 an estimate for the liquidator's further costs as at 27 November 2014 of between $227,370.00 and $284,370.00;
• CB1444 meeting of creditors of Sol Rio at which liquidator's costs were approved at $37,195.80 plus GST.

32 The Plaintiff's delay has caused the trustees to incur possible personal penalties and penalty interest for failing to lodge tax returns for the testamentary trust (T315 line 23-26).

33 The Plaintiff's delay has caused the Defendant to bring application number 674/2015 and defend action number 169/2015 brought by the Plaintiff and incur costs in doing so. The Plaintiff has sought personal costs orders on an indemnity basis against the Defendant in respect of these proceedings."

1. Mr McElwaine made the following written submissions on behalf of Tamzin:

"Administration of the estate pursuant to the grant

100 Factually, Tamzin and Stirling Hookway have taken various steps to administer the estate (albeit not effectively or efficiently) since the grant of probate.

101 For the reasons above, when those steps were taken her state of mind reflected firstly her belief that the will was consistent with her father's intentions and secondly the (wrong) advice which she received as to her ability to have the grant set aside.

102 In any event, the steps which she did take, jointly with her sibling, to administer the estate pursuant to the July will have been, apart from a bequest of $5,000, entirely consistent with the June will.

103 Moreover, other steps which have been taken, would have been taken in any event and pursuant to either will. The cross-examination of Stirling Hookway identified the following. First, the TFM application would in all likelihood have been brought under either will . Without any factual, legal or logical basis, Stirling Hookway contended that the settlement may have been greater under the June will because of the residue clause . Even if this contention is evidence of an admissible fact, it is entirely erroneous. TFM proceedings are brought by an applicant, within an eligible class, where inadequate provision has been made 'out of his (sic) estate' . Where that is so this Court has discretionary jurisdiction to make provision 'out of the estate of the deceased person'. The exercise of the discretion is plainly not limited by the terms of the will, and in particular how the residue is dealt with.

104 Secondly, the sale of property to Prudentia Investments P/L would have imposed a liability upon the estate under either will.

105 Thirdly, securing subtenants, by the entry into of subleases, was important to secure the income stream for the estate and was not impacted by the terms of either will.

106 Fourthly, in any event, so far as rental from subleases is concerned, in 2009 $34,399 was received and which was distributed equally as between the children of Tamzin and Stirling and the sum of $65,917 received for 2010 was distributed equally as between Stirling and Tamzin Hookway . No other rent has been paid by Hookway Aerospace.

107 Fifthly, and self-evidently notwithstanding the evasive evidence of Stirling Hookway, any communication with the liquidator would have been required pursuant to each will.

108 And finally, no taxation returns have been lodged since 2009."

1. I accept each of the submissions made by Mr McElwaine. To the extent that he does not address all of Stirling's contentions, I am of the view that it was not only Tamzin's delay that has caused the trustees to incur possible personal penalties and penalty interest for failing to lodge income tax returns for the Testamentary Trust, and it was not only Tamzin's delay that caused Stirling to bring application number 674/2015 and to defend action 169/2015. Stirling's position on the distribution of the Trust having gone from one where, on 1 February 2010, he was prepared to sign a document agreeing to the proposition that "Trust assets proceeds ... be distributed between Stirling and Tamzin's children fifty-fifty respectively ...", to one where, on 1 November 2012, his anger over Tamzin's application to wind-up their companies caused him to change his "conciliatory position regarding the trust", it cannot, in my view, be said that Stirling's animosity towards and inability to work with Tamzin was not in part responsible for the irretrievable breakdown of the relationship between them that led to the suite of litigation that ensued. In my view, it should have been obvious to Stirling at an early stage that the root cause of the problems he attempted to solve by litigation was not whether he was right and his sister wrong but the fact that the breakdown of their relationship meant that neither of them would be able to agree about anything.
2. It may well be that a detailed legal and accounting comparison between what has occurred purely in the administration of the July will, and what would have occurred had the June will been proved, would demonstrate that there has been unnecessarily wasted expenditure to date in the events that have happened. However, doing the best that I can on the evidence I have, I am not persuaded that any such wasted expenditure is sufficient in all of the circumstances to warrant me taking the view that Tamzin should be precluded from seeking the relief that she claims, or in me refusing to exercise my discretion to revoke the grant of probate of the July will.
3. Finally, I should make it clear that I accept the submission made by Mr McElwaine that there is no apparent difference between Stirling's defence, which is based on the administration of the estate pursuant to the grant, and the general contention of affirmation of the validity of the will by reference to the matters pleaded in the defence. As I have already observed, in any event, the answer is as I have accepted, namely that all of the steps which have been taken would most likely have been taken pursuant to either will. Consequently the outcome would not have been materially different.

1. I have noted earlier in these reasons that the central object to be kept in mind in the exercise of the probate jurisdiction generally, and in dealing with appeals to the exercise of the discretion to revoke a grant of probate in particular, is the due and proper administration of the estate before the Court, having regard to any testamentary intention of the deceased, the interests of parties beneficially entitled to the estate and the interests of the public. This has been my focus in approaching the exercise of my discretion to revoke the grant of probate of the July will.
2. Taking into account all of those considerations as examined in these reasons I have reached the view that I should exercise my discretion to revoke the grant of probate of the July will made on 7 September 2006. The testator lacked testamentary capacity to execute the July will, the rule in Parker v Felgate is not engaged, and there is no sufficient disqualifying conduct on the part of Tamzin to preclude her from obtaining the relief she seeks.
3. I am not satisfied of the existence of any significant prejudice to Stirling or to the estate. It is true to say, as was submitted by Mr Turner in his written closing argument, that it is abundantly clear that the testator wanted his grandchildren, and not his children, to have the benefit of the property settled on the Testamentary Trust. However, it is equally clear that he wished his grandchildren to have a defined interest in the property and not a mere right to be possibly considered as a beneficiary of a discretionary distribution. Whilst I would exercise my discretion in the same way in any event, I apprehend that any loss of entitlement on the part of any child of Tamzin or Stirling is likely to be ameliorated or replaced as a result of the bounty of the natural love and affection of his or her parents.

1. I will hear counsel as to the terms of the appropriate orders, and as to the question of whether there should be a grant of probate of the June will, or a grant of letters of administration with the June will annexed and if so to whom.