Succession - Making of a will - Testamentary capacity - Soundness of mind, memory and understanding - Time at which sound mind necessary - Crucial dates - Date when instructions given - Instructions not followed by solicitor.

Parker v Felgate (1883) LR 8 PD 171, distinguished.

Succession - Probate and letters of administration - Alteration and revocation of grants - Circumstances - Discovery of will and invalidity of will - Invalidity of will - Discretion to refuse revocation of grant.

Supreme Court Civil Procedure Act 1932 (Tas), s 45.

Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786, discussed.

Judgment Number: [2017] TASFC 4

1. In the last weeks of his life, the late Peter Hookway executed two wills, one dated 13 June 2006 and one dated 23 July 2006. He died on 24 July 2006. He was survived by his two adult children, whose first names are Stirling and Tamzin. They are the appellant and the respondent in this appeal. They were the residuary beneficiaries under each of the two wills.
2. The second will, but not the first, contained a gift of some valuable real estate to the testator's trustees, to be held on a discretionary trust for the testator's grandchildren, including any unborn grandchildren, and remoter issue. The dispositions under the two wills were otherwise identical. Four executors and trustees were appointed by the second will. Stirling and Tamzin were two of them. In September 2006 the four executors obtained a grant of probate of that will in common form. The other two executors subsequently retired.
3. During 2012 there was a falling out between Stirling and Tamzin. Until then, there had been an informal arrangement that the trust property was to be treated as if it were held on a 50:50 basis - 50% for the benefit of Stirling's children, and 50% for the benefit of Tamzin's child. She only had one child. As a result of their falling out, Stirling was no longer agreeable to that arrangement.
4. After obtaining some good legal advice, Tamzin brought an action against Stirling in 2015 seeking a revocation of the grant of probate of the second will, and seeking to propound the first will. That action and certain other proceedings were tried by Estcourt J, who made the orders sought by Tamzin: Hookway v Hookway [2016] TASSC 28. In those proceedings the Director of Public Prosecutions was appointed to be the litigation guardian of the grandchildren and remoter issue pursuant to r 295(b) of the Supreme Court Rules 2000. The learned trial judge concluded that the testator lacked testamentary capacity when the second will was signed; that the rule in Parker v Felgate (1883) LR 8 PD 171 did not apply because the second will did not accord with the testator's wishes; and that it was not appropriate for him to exercise his discretion to refuse the relief sought by Tamzin.
5. This is an appeal from that judgment. On the hearing of the appeal, Stirling did not contend that the learned trial judge erred in concluding that the testator lacked testamentary capacity when he signed the second will. His contentions related to the rule in Parker v Felgate, and to the discretion to refuse relief.
6. The grounds of appeal, the relevant evidence, and the reasoning of the learned trial judge are set out very thoroughly in the judgments of Martin and Marshall AJJ, for which I am very grateful. I agree that each ground of appeal must fail, for the reasons stated by them. There are some comments that I would like to add.
7. The rule in Parker v Felgate (above) appears in the report of that case at 173. It is contained in a summing-up to a jury by the President of Probate, Divorce and Admiralty Division of the High Court of Justice, Sir James Hannen. It is in the following terms:

"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 solicitor instructions to prepare a will making a certain disposition of my 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.'"

1. In this case, the evidence established that the testator gave instructions to a solicitor, Mr Manser, to make a will, and that Mr Manser prepared a will, but that the will did not accord with the testator's instructions in a significant respect. The terms of the discretionary trust for the grandchildren and remoter issue did not divide the trust property 50:50 between Stirling's descendants and Tamzin's descendants. The testator had given instructions that there should be such a division. It follows that the rule in Parker v Felgate does not apply in relation to the second will. The learned trial judge reached that conclusion in his reasons at [286]. In my view his conclusion as to that point is unimpeachable.
2. It follows that the grant of probate made in 2006 was a grant in relation to an invalid will. There is no doubt that a judge has a discretion to revoke a grant of probate, made in common form, in appropriate circumstances. All the relevant authorities were reviewed by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [284]- [317]. Significantly, as EM Heenan J said in The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358 at [23], "The ultimate purpose of the court is to ensure the due and proper administration of the estate and the interests of the parties beneficially entitled to it." All of Stirling's grounds of appeal relating to the revocation issue are advanced with a view to having the properties that were made the subject of the purported discretionary trust dealt with in accordance with the terms of the second will in spite of that will's invalidity.
3. Most of the circumstances specified in Stirling's pleadings as warranting a refusal to revoke the 2006 grant relate to steps that would have been taken in the administration of the estate whether probate had been granted of the second will or the first. It was pleaded that the executors distributed bequests to beneficiaries, defended proceedings under the Testator's Family Maintenance Act 1912, sold various property, settled some insurance claims, made payments in respect of liabilities, spent money on repairs to a property, pursued a claim for compensation, purchased a property for the testator's partner, entered into leases, filed taxation returns, and so forth. There is evidence that, in respect of two financial years, distributions of income of the purported discretionary trust were made, with Tamzin's child receiving 50% and Stirling's children sharing the other 50%, but those distributions were not referred to in the pleadings.
4. During the hearing of the appeal, it was argued that the second will gave effect to an intention of the testator to settle property on trust for the benefit of his grandchildren. That may be true, but the uncontradicted evidence was that he intended the trustees of any such trust to be constrained by a 50:50 arrangement, and that the second will did not give effect to any such intention. It was not pleaded that the testator's intention to benefit his grandchildren was a factor weighing in favour of a refusal to revoke the grant. Further, the insurmountable fact is that the first will gave effect to the testator's intentions at the time it was signed, whereas the second will did not give full effect to the testator's intentions at the time it was signed.
5. The only appropriate order is an order dismissing the appeal.
6. On the first day of the hearing of the appeal, there was an application to amend the grounds of appeal. This Court refused to allow the addition of a new ground 1A, but otherwise allowed the amendments. I joined in the making of that order for the same reasons as those noted by Martin AJ.

1. By writ dated 11 March 2015, the respondent (Tamzin) sought an order against the appellant (Stirling) that the grant of probate made in common form on 7 September 2006 of the will of the late Peter Hookway (the testator), dated 23 July 2006 (the July will), be revoked. After a trial the learned trial judge ordered that the grant of probate be revoked, and Stirling appeals against that order.
2. The grounds of appeal, as amended, are as follows:

"1 The primary judge erred in failing to find that the 9 year delay between the grant of probate and the commencement of the proceeding necessarily caused prejudice, through deteriorating recollections of material witnesses and lost documents.

1. Having regard to ground 1, the primary judge proceeded on an erroneous finding of fact that the delay did not cause prejudice to the administration of justice and his Honour's discretion thereby miscarried.
2. The learned primary judge erred in finding that he had no cause to disbelieve the respondent's evidence of the final days of the late Peter Hookway (the testator), when the evidence disclosed:

(c) that her evidence was inherently implausible; and

(d) her evidence to be contradicted by Mr Manser and Mr Ng.

3A The primary judge's discretion miscarried because he proceeded on the erroneous findings of fact that:

(a) he had no cause to doubt the evidence of the respondent;

(b) Tamzin's stated belief that the will provided for '50/50' was sufficient justification for propounding the will and administering the estate for 9 years without challenging the validity of the grant.

1. The primary judge erred in failing to find that the testator had testamentary capacity at the time of execution of the July will, in particular having regard to the erroneous findings that:

(a) The evidence of Mr Simons and the respondent as to the date and duration of Mr Manser's attendance on the testator were inherently more believable than Mr Manser's file note;

(b) Mr Simons' evidence as to the date and duration of Mr Manser's visit was unchallenged;

(d) the opinion of Professor Ashby that on the balance of probabilities, it was unlikely that the testator would have understood what he was signing, was determinative of the testator's testamentary capacity;

(e) any differences between the accounts of those who saw the testator in his final days did not inform the determination of the question of the testator's capacity; and

(f) the respondent's evidence as to the circumstances of the execution of the will should be accepted despite her prior sworn evidence to the contrary.

1. The main substance of the appeal centred on the contentions that the delay between the grant of probate and the commencement of proceedings necessarily caused prejudice to Stirling and the discretion of the learned trial judge miscarried by reason of a number of factual errors made by his Honour. Although ground 4 of the appeal includes the assertion that the learned trial judge erred in failing to find that the testator possessed testamentary capacity at the time of execution of the July will, in both written and oral submissions counsel for Stirling stated that Stirling does not challenge that finding.
2. For the reasons that follow, in my opinion the appeal should be dismissed.

1. At the hearing of the appeal Stirling sought leave to amend the grounds of appeal. Leave was granted to make minor amendments to grounds 2 and 3 and to add ground 3A. Those amendments did not cause any prejudice or unfairness to Tamzin. In substance they particularised complaints under those grounds which were already articulated in Stirling's written submissions.
2. Stirling also sought to add ground 1A in the following terms:

"1A The primary judge erred in holding that Tamzin was not precluded from seeking revocation of the ground of probate by her conduct in jointly obtaining the grant and proceeding with the administration of the estate notwithstanding her knowledge of the facts and circumstances on which she relied for its revocation, because of her belief that 'the trust was still 50/50'."

1. Leave to add this proposed ground was refused. In substance Stirling sought to argue that as a matter of principle Tamzin was precluded from seeking a revocation of the grant of probate because she had jointly obtained the grant, and engaged in the administration of the estate, notwithstanding that she knew of the facts and circumstances upon which she relied at trial for the revocation of the grant. In other words, the learned trial judge did not possess a discretion as to whether the grant of probate should be revoked and was bound, as a matter of law, to refuse the application.
2. This point was not taken at trial. To the extent that the proposed ground of appeal asserted that the learned trial judge erred in ruling, as a matter of law, that Tamzin was precluded from seeking the revocation of the grant, his Honour did not make such a ruling because the issue was not raised in the pleadings or at trial.
3. As to why the Court should grant leave, counsel for Stirling simply relied upon the proposition that it raised a "legal issue". However, in my view the authority upon which counsel relied does not support the proposition that by reason of the conduct of Tamzin, the trial judge did not possess a discretion whether to revoke probate or otherwise and was required, as a matter of law, to dismiss the application.
4. In advancing the contention as to the legal principle, Stirling relied upon the decision of Powell J in Neilson v The Public Trustee the estate of Ellen Letitia Neilson unreported, Supreme Court of New South Wales Probate Division 8 May 1992. On an application to dismiss proceedings seeking revocation of a grant of probate for failure to comply with directions, or failure to prosecute the proceedings with due dispatch, or on the basis that the proceedings constituted an abuse of process, Powell J discussed the principles relating to the exercise of the discretion to revoke. During an examination of how authorities had dealt with the question of long delay, Powell J noted different approaches which included strong authority for the proposition that a lengthy lapse of time is, in itself, not a bar to seeking a revocation of a grant of probate. After examining those principles, his Honour noted in the matter before him that even if there was evidence to support a ground of invalidity, the conduct of Mr Neilson Snr in applying for a grant of probate would, in his Honour's view, have "precluded him from thereafter applying to revoke the grant ... ".
5. Counsel for Stirling relied upon this statement as enunciating a principle of law that because Mr Neilson had applied for a grant of probate, he was barred from subsequently seeking to revoke the grant, as opposed to being "precluded" in the exercise of the discretion. However, as to the use of the word "precluded", Powell J went on to say that "without apparent reason" the failure of Mr Neilson over a period in excess of 20 years to apply to have the grant revoked would, in his Honour's view, "have precluded him" from applying to have the grant revoked.
6. In my view, when Powell J's judgment is read in its entirety, it is apparent that his Honour was not enunciating the principle of law for which Stirling contended. When his Honour spoke of Mr Neilson being "precluded" from applying to have the grant revoked, his Honour was using that word in the sense that the applicant's delay would "preclude" the exercise of the discretion to revoke the grant of probate.
7. For these reasons I agreed with the decision to refuse leave to amend to add ground 1A.

1. In 2006 the testator was suffering from a terminal illness. On 13 June 2006 the testator executed a last will and testament (the June will) appointing Tamzin and Stirling as executors and trustees of the will. Following specific bequests, the testator devised and bequeathed the residue of the estate to Tamzin and Stirling in equal shares. There is no dispute that the testator possessed the necessary testamentary capacity at the time he executed the June will.
2. Stirling gave evidence that in about May 2006 the testator first mentioned wanting to leave "a significant portion" of his estate to his grandchildren in order "that wealth could not be touched by spouses or partners of his children and further if poor investment decisions were made by either Tamzin or myself that there would remain a significant fund to support his grandchildren" (AB 1648). According to Stirling the testator asked him to investigate ways in which his wishes could be achieved. In his affidavit Stirling said (AB 1648):

"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."

1. Stirling explained that the June will was prepared with the assistance of a retired lawyer. The testator made notes and Stirling typed the will. The June will was signed on 13 June 2006.
2. As to the issue of a trust, in his affidavit Stirling gave the following explanation (AB 1649):

"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.'"

1. Stirling said that once Prudentia had indicated an intention to proceed with the purchase, the testator asked him to arrange for the drafting of the testamentary trust. Following the Prudentia settlement, the testator asked Stirling to see the solicitor immediately in order to get the testamentary trust underway. They were referred to Mr Peter Manser.
2. According to Stirling, he met with Mr Manser on 4 July 2006. However, Mr Manser deposed that he received a telephone call from Stirling on 4 July 2006 and spoke with Stirling for approximately 30 minutes. Both agreed they discussed discretionary testamentary trusts.
3. Stirling said that following his conversation with Mr Manser he spoke at length with the testator who asked him to write a letter of instructions to Mr Manser. On the morning of 5 July 2006 Stirling showed the testator a draft letter to Mr Manser. During their discussions the letter was amended and a final version was prepared. The testator read the letter "carefully" and then signed it. The letter was faxed to Mr Manser.
4. Apart from issues concerning the identification of particular lots in the trust assets, the essence of the instructions contained in the letter of 5 July 2006 is not in dispute. As explained by the learned trial judge [284] (AB 1680):

"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."

1. The letter of 5 July 2006 was addressed to Mr Manser and the relevant sections of the letter are as follows (AB 226):

"Following your conversation with my son, Stirling Hookway and our subsequent research with my accountant, Peter Dobson of WHK Dennison I hereby instruct you to prepare a discretionary testamentary trust for my will. ... I provide the following details for the trust and will endeavour to provide you with any additional information as soon as requested:

Beneficiaries: all my grandchildren and their children and grandchildren - currently my daughter Tamzin has a daughter - Madeleine Peta Hookway 1 yo and Stirling has a daughter Monique Madeleine, 3 yo and Damian Harold Hookway 1 yo.

Trustee: my daughter Tamzin Peta Hookway and my son Stirling Mathew Hookway.

- When a beneficiary becomes 30 they are entitled to be a trustee.

Holdings: lots 3 & 6 to be held 50% for children of Stirling and 50% for children of Tamzin.

Lots 5 & 6 to be held 100% for children of Stirling."

1. Mr Manser acknowledged receipt of the letter of instructions dated 5 July 2006. Subsequent discussions resulted in amendment of instructions with respect to particular lots and other issues, including the appointment of additional trustees. Mr Manser spoke with the testator by telephone on 18 July 2006 and a number of email communications occurred.
2. On 21 July 2006 Stirling travelled from Hobart to Melbourne. He did not see the testator alive again.
3. Although the testator was terminally ill with cancer, and his health was deteriorating, it is common ground that at least until late on Saturday, 22 July 2006, he possessed testamentary capacity. The learned trial judge summarised the situation in the following terms [18] (AB 1632):

"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."

1. It is unclear how the July will reached the testator. Tamzin denied collecting it from Mr Manser's office. The will was accompanied by a letter dated 21 July 2006. In a minor conflict of little significance, Stirling said he asked Tamzin to collect the will, but this was denied by Tamzin. As counsel for Tamzin pointed out, it is possible that the firm of solicitors arranged for delivery of the will to the testator.
2. As mentioned, the learned trial judge found that the testator's instructions required "a division of his legal and beneficial interests in the 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". However, the July will did not divide the property in that manner. His Honour found that pursuant to the Testamentary Trust under the July will, "the grandchildren have no interest in the capital or income". His Honour correctly found that this was not a "minor difference" between the testator's instructions and the will. His Honour said that "on any view of it a very substantial component of the testator's estate went into the testamentary trust" and the will did not "reflect the testator's instructions in a substantial respect".
3. In my opinion these findings were strongly supported by the evidence and provide the context for both the events of 22 and 23 July 2006 and his Honour's findings and decision.

1. Mr Manser said he visited the testator on 22 July 2006, but this was disputed by Tamzin who said Mr Manser visited on 23 July 2006. It was about 7.30pm on 23 July 2006 when the testator signed the July will.
2. As to the visit by Mr Manser, contrary to Mr Manser's evidence, the learned trial judge accepted the evidence of Tamzin and found that Mr Manser visited the testator during the afternoon of 23 July 2006. This finding is attacked by Stirling and, in view of the differences between Mr Manser and Tamzin as to the circumstances of the meeting and the discussion that occurred between Mr Manser and the testator, it is appropriate to set out the summary of their evidence as provided by the learned trial judge.
3. Mr Manser's evidence-in-chief was set out by the learned trial judge in the following passages taken from Mr Manser's affidavit [196] (AB 1668 and 1669):

"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. The learned trial judge then summarised further evidence-in-chief given by Mr Manser, and significant evidence from the cross-examination of Mr Manser dealing with the failure of Mr Manser to prepare a will in accordance with his instructions from the testator (AB 1669-1671):

"197 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.

199 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'.

200 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.

201 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.

202 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.

203 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.

204 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.

205 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.

206 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.

207 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.

208 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.

209 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.'

210 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.

211 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.

212 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.)

213 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.

214 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.

215 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.

216 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.

217 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.

218 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.

219 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.)

220 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.

221 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.

222 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 ....'

223 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.

224 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."

1. Tamzin described quite a different meeting which she said occurred on 23 July 2006. Her affidavit also dealt with the testator's condition as it developed during 23 July 2006 and conversations with the testator about the will. The learned trial judge dealt with the relevant paragraphs of Tamzin's affidavit [19] (AB 1632-1635):

'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. The evidence of Tamzin that Mr Manser visited on 23 July 2006 was supported by the evidence of Mr Max Simons who was a close friend of the testator and one of the original executors and trustees of the July will. In his affidavit Mr Simons stated that he last saw the testator on 23 July 2006 and that while he was with the testator "the lawyer arrived at approximately 4.30pm and had a brief discussion with Tamzin and Peter" [12]. Mr Simons said the lawyer was there for about 10 to 20 minutes. Mr Simons was not involved in the discussion as he was chatting with another person in an adjoining room.
2. During cross-examination Mr Simons said he also visited the testator on 22 July 2006 from about 12.30pm to 5pm. He did not recall any other visitors that day. Mr Simons said that if the lawyer had come to the testator's house on 22 July, Mr Simons did not see him. According to Mr Simons, on the day the lawyer visited he saw Samantha and Albert Ng attend at the testator's house a couple of hours after the lawyer had left. It is common ground that Albert and Samantha Ng attended on 23 July 2006 and witnessed the testator sign the July will.
3. Not surprisingly, the learned trial judge found the unchallenged evidence of Mr Simons as to the attendance of Mr and Mrs Ng on the same day as the lawyer to be significant in the contest between Mr Manser and Tamzin. Ultimately, however, his Honour found that the issue as to the day on which Mr Manser visited was not of "dispositive significance in relation to the question of testamentary capacity" [92].

1. As Stirling has abandoned the complaint that the learned trial judge erred in finding that the testator lacked testamentary capacity when he signed the July will, it is unnecessary to refer in detail to evidence other than the evidence of Tamzin summarised earlier in these reasons. Mr Simons said that when he spoke with the testator on 23 July 2006 "he seemed to be 'not with it', appeared to be in a lost world, seemed dazed and was making comments which were unlike him." [87] Mr Ng said the testator was "visibly tired and slow in speech" [226], but he could not say if the testator appeared disoriented or confused [234].
2. Significantly, the learned trial judge accepted the evidence of Professor Michael Ashby, a consultant in palliative and pain medicine and Professor of Palliative Care at the University of Tasmania. On the basis of the information provided to him, particularly by Tamzin, Professor Ashby expressed the opinion that "on the balance of evidence supplied", the testator "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" [70]. In addition, although Professor Ashby acknowledged that it was "possible" that the testator may have recognised the document he was signing as his will, in Professor Ashby's opinion it was "unlikely" that the testator would have understood what he was signing [85] and [86].
3. No expert evidence was led to contradict the opinion of Professor Ashby. On the basis that the evidence of Tamzin was reliable, it was open to the learned trial judge to accept the opinion of Professor Ashby and to find that the testator lacked testamentary capacity when he signed the July will.

1. As mentioned, the July will did not reflect the written instructions dated 5 July 2006 which were provided to Mr Manser. Allowing for corrections with respect to lot numbers provided in an email of 12 July 2006, the learned trial judge accurately described the effect of the instructions in the following terms:

"159 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.

160 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'."

1. Clause 11 of the July will read as follows (AB 309):

"I devise my land at Cambridge in Tasmania comprised in certificates of title volume 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. The learned trial judge correctly found that the July will did not accurately reflect the testator's instructions. His Honour also found that, "at its highest", the evidence of Mr Manser did not establish that the testator appreciated that the July will did not reflect his instructions [283]-[290] (AB 1680 and 1681):

"283 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.

284 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.

285 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.

286 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.

287 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.

288 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.'

289 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.

290 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."

1. In the context of the failure of the July will to reflect the instructions set out in the correspondence dated 5 and 12 July 2006, Stirling was questioned about the testator's wishes and whether they were reflected in the July will. Stirling's evidence about these matters was singularly unimpressive.
2. In his affidavit of 18 January 2006 Stirling explained various aspects of the history leading to the letter of instructions dated 5 July 2006. The relevant paragraphs of the affidavit are set out at [109] of the decision of the learned trial judge and are cited earlier in these reasons.
3. As to a diary note made by Stirling following discussions with his father - "spelt out in Will or can executors decide" - in cross-examination it was suggested to Stirling that the testator either wanted the will to expressly provide how the trust was to operate so far as distributions were concerned, or he wanted advice about whether those issues should be left to the executors. Stirling responded "I think so". Stirling then gave the following evidence (AB 982):

"Q: In what he said to you I suggest is that he wanted the assets held on trust 50/50. That's what he said, isn't it?

Q: Words consistent with the words that ultimately appeared in the letter he signed?

Q: And he wanted you to get advice about whether he should deal with that in a specific way in the will or whether it should be left open for the executor(?s). That's what was discussed, isn't it?

1. As to a note in his diary - "letter to trustee for discretionary trust" - Stirling gave the following evidence in cross-examination (AB 985):

A: Peter Manser had suggested that if dad wished he could write a letter to the trustees with more information regarding its operation than what necessarily had to be put in the will.

Q: In particular that the assets were to be held 50/50?

Q: That's what you discussed with Mr Manser, isn't it?

Q: And he told you, 'well it's always open to a testator to give a letter of guidance or wishes to the trustees as to how he or she would like the incoming capital to be distributed', he told you that, didn't he?

A: I think it was more general than that, that any instructions that dad wished could be put in a letter to the trustees.

Q: Yes, but what, for example, did you say to him about letter to trustee for discretionary trusts - what did you say to him?

A: Yes, I have mentioned to him that Peter Manser said that if you wish to have more instructions to trustees you have the option of writing a letter, and that letter, it's not in the will, but it is given to the trustees.

A: He was immediately dismissive of the idea, he said very firmly he wants everything about it in the will, he did not like other documents, he wanted the will to be one document. [My emphasis.]

Q: Well what he said to you was he didn't see a need for an additional letter to the trustees and he wanted his will to provide the instructions, is that correct?

Q: And he told you he wanted to leave all his Cambridge land to the trust?

Q: 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'?

Q: And in consequence of that he said, 'would you draft a letter containing my instructions to my solicitor'?

Q: And you did and the outcome of that is the letter of 5 July?

Q: 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?

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

Q: And he was quite specific that lots 3 and 6 were to be held equally for your children and Tamzin's children?

Q: And he was quite specific that lots 4 and 5 as we now know them were to be held 100% for the benefit of your children?

1. In this evidence, Stirling was acknowledging the 50/50 instruction as reflected in the letter of 5 July 2006. Only a few pages earlier in his cross-examination he had denied that his father said that he wanted the assets held on trust 50/50.
2. Following the evidence to which I have referred, under cross-examination Stirling agreed that the will did not contain instruction that the trust for lots 4 and 5 were to be held 100% for the benefit of his children. Nor did the will provide that lots 3 and 6 were to be held 50% for the benefit of his children, and 50% for the benefit of Tamzin's children.
3. Notwithstanding this evidence, a little later under cross-examination it was put to Stirling that in his discussions with his father after 21 July 2006 the testator had made it plain that he wanted the trust to benefit equally his and Tamzin's children, to which Stirling responded "no".
4. A few pages later in the transcript Stirling shifted ground, yet again (AB 994):

"Q: Is the 50% your percentage or your father's percentage?

Q: What did he say about the 50%? What did he say to you?

A: He said he wanted to put 50% of the 94 Kennedy Drive properties equally between the two families, and he wanted to put all of his share of lots 5 and 4 properties for the benefit of my children.

Q: So there's no doubt you discussed with him that what he wanted was a compartmentalisation of various holdings, some to go for your family, some to go for Tamzin's?

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

Q: So that your children would have an exclusive entitlement to lots 5 and 6, correct?

Q: And his intent was that your children would also have a 50% entitlement in lots 3 and 6?

Q: Well if half lots 3 and 6 are held for your children and half lots of 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?

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

Q: And he was - he's specially careful to ensure that your children and your children alone would have the benefit of 100% of lots 4 and 5?

Q: Because he knew that Tamzin's 50% interest in lots 3 and 6 would ultimately devolve for the benefit of her children. That was his scheme, wasn't it?

Q: But he never intended, for example, that your children would be considered as beneficiaries of income or capital to 100% of lots 3 and 6, did he?

Q: Under this will, do you now understand that your children have no vested interest in any of the properties referred to in the letter of 5 July?

Q: Lots 5 and 6 to be held 100% for the children of Stirling, what he intended was those lots would be exclusively for the benefit of your children?

Q: So the outcome is not what you carefully recorded in the letter to Mr Manser, is it?

1. Despite Stirling's attempts to shift ground from time to time, he was obliged to concede that the letter of 5 July 2006 represented the testator's instructions and he expected Mr Manser to draw the will in accordance with those instructions. In particular, he conceded the testator wanted the grandchildren to have defined interests in particular properties and he agreed that the July will did not reflect those wishes and instructions. This was the effect of Stirling's evidence on 12 February 2016.
2. The situation changed on 18 February 2016. For the first time, Stirling introduced the suggestion of a change of instructions after the letter of 5 July. His evidence in this regard is summarised by the learned trial judge in [165]-[172]. It is not necessary to set out that evidence. It is sufficient to note that, with justification, in the following passages the learned trial judge rejected Stirling's evidence concerning the testator's change of mind [324]-[326] (AB 1688):

"324 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.

325 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.

326 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."

1. In his defence Stirling listed a number of activities undertaken by the executors of the July will, and evidence was led to support a claim that Tamzin's acquiescence and delay had resulted in unnecessary expenditure being incurred by the executors. In that respect, the learned trial judge reached the following conclusions [332] and [333]:

"332 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.

333 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. These findings were not challenged on the appeal and no submissions were addressed to them. It is not necessary to discuss this aspect of the evidence.

1. The learned trial judge correctly identified the primary issues for his determination as follows [12] (AB 1631):

"12 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 learned trial judge, also correctly, identified the following fundamental statements of principle [241] which he took from the decision of Lindsay J Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 at [102]- [210]:

"• 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. After referring to principles related to testamentary capacity, the learned trial judge correctly observed that if there is evidence before the Court to "incite its suspicion" that the testator lacked testamentary capacity, the onus shifts to the party supporting the validity of the will to negate the suspicion by proving affirmatively that the testator possessed testamentary capacity. His Honour referred to the caution required as explained by Gleeson CJ in Re Estate of Griffith (Deceased); Easter v Griffith (1995) 217 ALR 284 at 290.
2. In view of a contention by Stirling that the testator executed a will in accordance with antecedent instructions provided to Mr Manser, the learned trial judge then dealt with the rule in Parker v Felgate. His Honour was alert to the principle centred on the importance of testamentary capacity at the time instructions are given for the will.
3. The learned trial judge also correctly directed himself as to the principles to be applied when there is acquiescence in a grant of probate and a delay in seeking revocation of the grant. Included in the matters to be addressed was the potential for loss of evidence and prejudice to Stirling. His Honour's general statement of the principles was as follows [266]-[272] (AB 1678 and 1679):

"266 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.

267 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].

268 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).

269 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.

'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.'

271 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'.

272 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 a correct identification of the relevant principles, the learned trial judge made a number of findings which may be summarised as follows:
   • The testator lacked testamentary capacity at the time he signed the July will.
   • The July will did not reflect the testator's instructions in a substantial respect.
   • Mr Manser did not explain to the testator the difference between the testator's instructions and the terms of the July will.
   • Taken at its highest from the point of view of the case for Stirling, Mr Manser's evidence "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" [287].
   • While Tamzin may have been genuinely mistaken in some respects, she was not deliberately untruthful. Tamzin was an honest, careful and reliable witness.
   • Having regard to Tamzin's state of mind and explanation for initially acquiescing in the grant of probate, there was "no sufficiently disqualifying conduct on the part of Tamzin to preclude her from obtaining the relief she seeks" [335].
   • "I am not satisfied of the existence of any significant prejudice to Stirling or to the estate" [336].
   • "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" [335].

1. Ground 1 asserts that the learned trial judge erred in failing to find that the nine-year delay between the grant of probate and commencement of proceedings "necessarily caused prejudice, through deteriorating recollections of material witnesses and lost documents". The failure to make this finding is then linked to ground 2. In substance, ground 2 contends that because the learned trial judge failed to make the finding of prejudice, his Honour proceeded on "an erroneous finding of fact that the delay did not cause prejudice to the administration of justice". In this way ground 2 advances the proposition that the discretion of the learned trial judge miscarried.
2. It is convenient to deal with grounds 1 and 2 after the other grounds which require an examination of the evidence, particularly the evidence emanating from Tamzin, which in turn will assist in identifying prejudice caused by the delay. In that context I will deal with the evidence concerning Tamzin's reasons for participating in the administration of the estate under the July will and for delaying the application to revoke probate.

1. Ground 3 complains that the learned trial judge erred in finding that he had "no cause to disbelieve" the evidence of Tamzin concerning the "final days" of the testator. There are four matters which ground 3 asserts establish the error in finding no cause to disbelieve Tamzin:

(c) that her evidence was inherently implausible; and

(d) her evidence to be contradicted by Mr Manser and Mr Ng."

1. Stirling submitted that in the Testator's Family Maintenance Act 1912 proceedings taken by the testator's wife, Tamzin swore an affidavit dated 27 August 2008 in which, contrary to her evidence in the current proceedings, she stated that Mr Manser had "discussed all her father's concerns as to the provisions of the July will to her father's satisfaction". Further, Stirling contended that the unsworn drafts of the affidavit went further than the sworn version and were a prior inconsistent account "(as much as she insisted that her brother was involved in their drafting)".
2. The relevant paragraph of the affidavit of 27 August 2008 was as follows:

"32 My father wanted to leave the land at Cambridge to his grandchildren and in May 2006 requested for Stirling to investigate options to achieve this. Stirling spoke with Ian Creese, and Peter Manser of Simmons Wolfhagen was recommended to provide the detail required. My father was anxious about Trusts and wanted to be sure it would provide the protection he wanted for his children and grandchildren as he did not want the remaining land at Cambridge sold, and was especially concerned about the possibility of broken relationships leading to this. The last version of the Will, with the Trust, was with my father for a few days, when he expressed concern that he had a few questions about how the Trust would operate. I stressed he should not sign anything he was not 100% comfortable with and suggested he speak with Peter Manser directly. Mr Manser came to the house, discussed all my father's concerns to his satisfaction and the final version of the will was signed." [My emphasis.]

1. Tamzin's evidence-in-chief at the trial is found in her affidavit of 14 December 2015:

"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 seek 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."

1. The learned trial judge dealt with the affidavit in the Testator's Family Maintenance Act proceedings. His Honour specifically noted Tamzin's acceptance that in the prior affidavit she made no mention of the matters set out in her affidavit in the current proceedings relating to the testator's concerns about the terms of the July will. His Honour recorded that Tamzin said in evidence that she was told that the matter of her father's concerns was not relevant to those previous proceedings [23].
2. Further, the learned trial judge specifically referred to Tamzin's agreement that she had not included anything in her prior affidavit about raising with Mr Manser any question concerning the testator's capacity [28].
3. The learned trial judge spoke of the "inconsistency" while dealing with the evidence of Professor Ashby. His Honour said [281]:

"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."

1. As the learned trial judge pointed out, the affidavit of 27 August 2008 was sworn in proceedings of quite a different nature. Tamzin was, jointly with Stirling, defending an action under the Testator's Family Maintenance Act in which the testator's wife sought increased provision for herself under the July will. Leaving aside precise details as to who was in control of the drafting of the affidavit, the affidavits in the TFM proceedings were prepared by lay persons and not lawyers. No issue of the invalidity of the July will was involved. In contrast to the affidavit in the current proceedings, Tamzin did not set out in the TFM proceedings to give a detailed account of what occurred during the meeting with Mr Manser. As the learned trial judge said, she gave a "generalised account" of the meeting and the allaying of concerns about provisions in the July will.
2. I agree with the learned trial judge that this was not a prior inconsistent statement of significance. At the least, it was open to the learned trial judge to find that the minor differences were not of significance in assessing the reliability and credibility of the evidence of Tamzin. Once this view is taken of the differences, Stirling's submission that the prior statement should give cause for concern about the credibility and reliability of Tamzin's evidence is substantially undermined.

1. Ground 3(b) refers to an "altered diary". Stirling's written submissions include the comment that the diary was "concealed despite the parties undertaking informal discovery". Tamzin submitted that this is an unfair description of the circumstances.
2. Tamzin was first cross-examined by counsel for Stirling, but it appears that the issue of the diary did not arise until counsel for the Director of Public Prosecutions (who was appointed by the Court as litigation guardian for the grandchildren and remoter issue) commenced cross-examination. Tamzin spoke with Mr Manser in May 2010, and she was asked why she was so certain about the date of that conversation. Tamzin responded that she made notes. She was then asked whether she made notes about the events that occurred on 22 and 23 July 2006 and she responded "just simple diary notes" (AB 773). She was then asked whether the diary was accessible and responded that it was at home.
3. During further cross-examination about the content of the diary, Tamzin said she was not keeping a "full diary". She said there was no impediment to retrieving it and counsel asked that it be produced. After a short adjournment Tamzin produced the diary.
4. Counsel for the DPP cross-examined Tamzin about various entries in the diary and about the fact that the entry for 23 July was in pencil. He elicited evidence from Tamzin that she made the entry concerning the visit by the testator's palliative care practitioner, Dr Dunne, on the day of the visit, namely 18 July 2006, and that the font of that entry was very similar to the font of the entry of 23 July concerning the visit by Mr Manser.
5. The tenor of the cross-examination was to suggest suspicion about the pencil entries for 18 and 23 July 2006.
6. It is common ground that formal discovery did not occur, but there was a process of "informal discovery" as asserted in Stirling's written submissions. However, there is no evidence that the diary was "concealed". Further, it was not suggested to Tamzin that she concealed the existence of the diary.
7. The cross-examination concerning the diary to which I have referred occurred before Dr Dunne gave oral evidence. At the time of the cross-examination counsel were in possession of Dr Dunne's affidavit dated 3 February 2016 in which Dr Dunne spoke of visiting the testator on 18 July 2006. At the time of cross-examination, therefore, the entry in Tamzin's diary for 18 July 2006 matched the evidence of Dr Dunne and there was no basis upon which counsel could put to Tamzin that she had fabricated any entry.
8. At the conclusion of Tamzin's evidence, counsel for Stirling sought and obtained an order for inspection of the diary by an officer of "Forensic Document Services" in Sydney. The application was granted on 11 February 2016. Dr Dunne had given oral evidence the previous day during which he acknowledged that he had made a mistake in his affidavit when he said he visited the testator on 18 July 2006. The visit had in fact taken place on 14 July 2006.
9. Tamzin was recalled to give further evidence on 20 April 2006. It appears that by this time an expert had reported that an opinion could not be given as to the date of the entries in the diary because they were made in pencil. However, in view of the oral evidence by Dr Dunne, by 20 April 2016 counsel knew that the entry in Tamzin's diary for 18 July 2006 was not correct. Counsel possessed a basis upon which it could have been suggested to Tamzin that she had fabricated the entry for 18 July 2006 with respect to the visit by Dr Dunne.
10. When Tamzin was recalled on 20 April 2016, she was not asked by any counsel about the entry for 18 July 2006. Specifically, there was no suggestion made to her that the entry for 18 July 2006 was wrong and had been fabricated. She was asked questions about a different issue.
11. Stirling's assertion that the diary entry for the visit of Dr Dunne on 18 July must have been a fabrication, and the relevance of matching fonts, was expressed in Stirling's written submissions to the Court in the following terms:

"25 Tamzin asserted that the 18 July entry was made on 18 July. It could not have been. Dr Dunne gave evidence that his affidavit contained the wrong date and that he in fact visited on 13 or 14 July. That evidence was supported by the fact that the relevant letter to Dr Vidor, sent on 18 July, recorded the visit to the testator 'on Friday evening'. His Honour found the last time Dr Dunne had seen the testator was on Friday 14 July 2006.

1. The only plausible reason Tamzin would have recorded a visit by Dr Dunne on that day - a visit that did not occur - was that she added it after receiving Dr Dunne's affidavit in this proceeding. The less likely but equally damning alternative, is that Tamzin's cognizance of dates in July 2006 was so poor that she was astray by four or five days when making a contemporaneous note.
2. The handwriting and pencil for the 18 July entry appeared to match the contested entry made on 23 July which purported to record Mr Manser's attendance. This should have cast grave doubt on the veracity of that self-serving 23 July note.
3. In closing submissions, Stirling submitted that the Court should infer that the entries on 18 and 23 July were recent additions. The primary judge did not answer that submission, and in reaching the conclusion at [295] has plainly overlooked it." [Footnotes omitted.]
4. In response to Stirling's written submission, Tamzin's written submission contended that as it was not put to Tamzin that her entry for 23 July was false, or a recent addition, Tamzin was "deprived of any opportunity of explanation" and it would be unfair to draw an adverse inference in this regard. Further, as issues of dishonesty or falsehood were not put to Tamzin, "no consequence flows from the lack of any express reference in his Honour's reasons to a submission which had no basis in fact and was not fairly put during the course of the trial".
5. In response to the submission that the issue of falsity had not been put to Tamzin, counsel for Stirling suggested that at trial, in opposing the application for release of the diary in order to allow for an inspection by an expert, counsel for Tamzin conceded that the substance had already been put to Tamzin. In the discussion with the trial judge, the following passage contains the statement relied upon by counsel for Stirling (AB 850 and 851):

"MR McELWAINE SC: But still, let us assume that was so, your Honour, at best my learned friend could still have cross-examined as to credibility, he may have been holding an expert opinion report which says it's [the diary entry for 23 July] a recent concoction.

HIS HONOUR: Which he could have put to the - in front of the witness and said 'Now look at this and read this and now what do you say about when you made that entry?'

MR McELWAINE SC: Well, he could have, but in substance, he has said that."

1. Shortly after that statement counsel for Tamzin added that in substance it had been put to her that her version of the events with Mr Manser was wrong.
2. In oral submissions, counsel for Tamzin contended that the concession at trial that the "substance" had been put to Tamzin related only to the substance of the evidence given by Mr Manser concerning his attendance at the home of the testator. It did not extend, said counsel, to the entry concerning Dr Dunne.
3. In my opinion, when the discussions between counsel and the learned trial judge are read in their entirety, it is readily apparent that the concession made by counsel for Tamzin concerning the substance of the matter having been put to Tamzin related only to the entry for 23 July 2006 and the evidence of Mr Manser where it conflicted with the evidence of Tamzin. It did not relate to the diary note of Dr Dunne's attendance. While the tenor of the cross-examination of Tamzin was to suggest that there were suspicions surrounding the entries for 18 and 23 July 2006, that cross-examination occurred before it was known that Dr Dunne had made an error in stating that he attended on 18 July 2006 and that, therefore, the entry in Tamzin's diary for 18 July 2006 could not be correct.
4. Did Tamzin honestly make an error in recording the date of 18 July which happened, by coincidence, to match the incorrect date given by Dr Dunne in his affidavit? Or did Tamzin falsify the entry after she read Dr Dunne's affidavit? These were obvious questions to be put to Tamzin in order to give her an opportunity to explain how there came to be an incorrect entry in her diary which matched the incorrect statement by Dr Dunne in his affidavit.
5. The substance of these matters had not been put to Tamzin before the error by Dr Dunne was known and no attempt was made to question her about these issues after Dr Dunne clarified the date of his attendance. Notwithstanding the failure to question Tamzin about these matters, in the written submissions, under the heading "The Plaintiff's Diaries", direct reference was made to the change in Dr Dunne's evidence and to the font of the entries for 18 and 23 July differing from other entries in the diary. Further, the submission noted that the entries for 18 and 23 July were in pencil. The submission continued:

"The Court can and should draw an inference that the impugned entries are all recent additions."

1. Ordinarily there would be force in the submission that an issue of this type would call for the exercise of caution in assessing the honesty and reliability of the witness' evidence. Normally, it would also require a trial judge to make a finding and explain reasons for the finding. However, the situation is not "normal". A matter which had the potential to impact adversely upon the credibility and reliability of Tamzin as a witness was not put to her. She was deprived of the opportunity of commenting on a significant issue. Further, there was no expert evidence presented concerning similarities or otherwise between the fonts of the entries on 18 and 23 July 2006.
2. The failure of counsel for Stirling or for the DPP to put to Tamzin that her entry for 18 July (and 23 July) was false or a recent addition brings into consideration the rule in Browne v Dunn (1894) 6 R 67. Neither counsel addressed the rule and the circumstances under consideration do not require a detailed examination of the application of the rule. It is sufficient to note that it is a rule based in fairness to a witness and a party, but care must be exercised in applying the rule according to the particular circumstances of the case. In a joint judgment in MJW v The Queen [2005] HCA 74, 80 ALJR 329, Gummow, Kirby and Callinan JJ observed:

"[38] ... The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person's witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party's or a witness' credit.

[39] One corollary of the rule is that judges should in general abstain from making adverse findings about parties and witnesses in respect of whom there has been non-compliance with it [the rule in Browne v Dunn]. A further corollary of the rule is that not only will cross-examination of a witness who can speak to the conduct usually constitute sufficient notice, but also, that any witness whose conduct is to be impugned, should be given an opportunity in the cross-examination to deal with the imputation intended to be made against him or her. ...

[40] Reliance on the rule in Browne v Dunn can be both misplaced and overstated if the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put."

1. The issue of fabrication or late addition to the diary was first raised in the appellant's closing submissions to the learned trial judge. Even at that late stage an application could have been made for the recall of Tamzin. However, an application was not made, leaving the judge in the position of being faced with a submission that a principal witness, Tamzin, had behaved dishonestly and should not be believed, such imputation not having been put to Tamzin.
2. It is against this background that the learned trial judge did not specifically refer to the submission that he should infer that the entries of 18 and 23 July were recent additions. Stirling's written submissions urge a conclusion that his Honour "plainly overlooked" this contention.
3. In my opinion it is highly unlikely that the learned trial judge overlooked the submission. His Honour specifically adverted to the cross-examination of Tamzin concerning the preparation of the diary and its contents. He observed that she was "very closely and rigorously cross-examined" [295]. Having made those observations his Honour said that he was "not left in any doubt that the diary was a genuine record of its contents".
4. In my opinion, at trial it would have been unfair to draw an adverse inference against Tamzin that she falsified the diary or made a late addition to it having read the affidavit of Dr Dunne, or that she fabricated the entry for 23 July 2006. Further, in the circumstances, it was open to the learned trial judge to accept that the diary was a genuine record notwithstanding the coincidence of entries and the submissions of Stirling. In the absence of cross-examination of Tamzin or expert evidence concerning the entries, this Court is not in a position to draw the conclusions for which Stirling contended, and there is no basis upon which this Court could properly interfere with the findings of the learned trial judge.

1. In advancing the proposition under ground 3(c) that the evidence of Tamzin was "inherently implausible", Stirling's written submissions referred to the evidence of Tamzin when she said that her recollection was "minute by minute". Counsel was cross-examining Tamzin and asked if she had an independent recollection of 23 July 2006 or was relying on notes made in her diary. Tamzin said she had an independent recollection as well as the diary notes. Asked what independent recollection she had of that day, she responded "minute by minute, how much detail do you want me to give" (AB 825).
2. It is not uncommon for witnesses to respond under pressure with assertions that are not meant to be taken literally. Viewed in the context of the various challenges that were made to Tamzin's evidence during cross-examination, I do not regard this answer as of any significance. In the absence of cross-examination as to what Tamzin meant when she said "minute by minute", I am inclined to the view that she was merely emphasising that the events were imprinted on her mind.
3. During oral submissions, counsel for Stirling concentrated upon the contest between Tamzin and Mr Manser about the date and content of Mr Manser's attendance upon the testator on either 22 or 23 July 2006. In particular, counsel contended it was implausible that in answer to questions by Tamzin that the will did not say the trust was 50/50, and concerning the age at which the grandchildren could be owners, Mr Manser responded "your trustees will ensure that" or "your trustees can decide that". Counsel pointed out that Mr Manser had not met Tamzin and had only had brief contact with Stirling. In addition, Mr Manser did not know the other trustees. In these circumstances counsel urged that Tamzin's evidence in this regard was implausible because it would have been highly irresponsible of Mr Manser to give such a response to Tamzin's questions.
4. The submissions of counsel for Stirling overlooked Stirling's evidence and the context in which Tamzin said that Mr Manser gave the impugned answers. In the passages of evidence previously cited, Stirling said he discussed with the testator the question of a letter to trustees and the issue had also been discussed between Stirling and Mr Manser. Stirling said he told the testator that Mr Manser had said that "if you wish to have more instructions to trustees you have the option of writing a letter, and that letter, it's not in the will, but it is given to the trustees". (AB 987) In addition Mr Manser agreed it was common practice for testators to provide letters to trustees identifying their wishes.
5. Against that background, and bearing in mind that the July will as prepared by Mr Manser did not contain the specific trusts as instructed in the letter of 5 July 2006, if Tamzin had asked questions about the will not saying 50/50 and the age at which the grandchildren could be owners, it would not be surprising if Mr Manser spoke of the trustees ensuring that something occurred or that the trustees could make decisions about such issues. In addition, in view of the passage of time between the conversations and the giving of evidence, care should be taken before relying upon the evidence of Tamzin to find that particular words were used by Mr Manser. As counsel for Stirling submitted in another context, over time the nuances of language are likely to be lost or misinterpreted. If Tamzin had asked the questions, Mr Manser might well have responded with reference to the trustees in some way carrying out the wishes of the testator.
6. In these circumstances, when Tamzin's evidence is viewed in the context of the background and issues to which I have referred, her evidence in this regard is not implausible.

1. As to the conflicts in the evidence between Tamzin and Mr Ng, these conflicts are not of any significance. The circumstances under which Mr Ng attended were not pleasant. On any version, it was a traumatic period in the life of Tamzin. Neither Tamzin nor Mr Ng had any occasion to consider the details of what occurred when Mr Ng attended late on 23 July 2006 until years after the event. In these circumstances, the conflicts between their evidence are of no significance to the credibility of either witness.
2. The conflict between Tamzin and Mr Manser is more substantial. In addition to a conflict concerning the date Mr Manser attended upon the testator, there were major differences between the descriptions of the meeting.
3. In summary, Tamzin described the testator as too exhausted to lift up his arm and said he was unable to get out of his chair. According to Mr Manser, however, Tamzin brought the testator to him who was "ambulating but moving slowly". Mr Manser said he shook the testator's hand and the testator possessed a "firm grip".
4. Tamzin described a very brief meeting during which there was no small talk. She explained to Mr Manser that the testator had two questions about the trust and after she handed the will to Mr Manser and he read it, she observed to Mr Manser that the will did not say the trust was 50/50. In response Mr Manser simply said "your trustees will ensure that". According to Tamzin she then asked at what age the grandchildren could be owners and Mr Manser responded "your trustees can decide that". Finally, Tamzin asked Mr Manser if he considered it would be ok for her father to sign the will and he responded "yes" and asked if she knew how to have the will executed.
5. On the other hand, Mr Manser described an entirely different meeting lasting about an hour. He denied that Tamzin handed him the will and said he had a discussion with the testator alone. According to Mr Manser he asked whether the testator had read the letter of 21 July 2006 and received a positive response. He then asked if the testator understood the amended will, to which the testator confirmed that he did understand it. Mr Manser said he explained that his work involved only creating the discretionary testamentary trust and he had not amended any other part of the will. Significantly, Mr Manser said he had a "conversational" and "general" discussion with the testator during which the testator provided him with details concerning his spread of investments.
6. Mr Manser described the testator as fatigued but said he was "aware of his own financial affairs" and did not exhibit "any confusion or forgetfulness". He appeared to Mr Manser to be "entirely competent". This description by Mr Manser of the state of the testator is entirely at odds with the description given by Tamzin.
7. The conflict between Tamzin and Mr Manser is obvious. If Tamzin gave correct evidence, Mr Manser's notes were inaccurate and his recollection of the meeting was deficient and inaccurate in many significant respects.
8. Importantly, the evidence of Tamzin was supported by Mr Simons, the friend of the testator who visited on both 22 and 23 July 2006. Mr Simons said he did not see "the lawyer" on 22 July 2006. He saw the lawyer arrive at approximately 4.30pm on 23 July and observed that the lawyer had a "brief discussion" with Tamzin and the testator. According to Mr Simons, the lawyer was only present for a "brief time", about 10 to 20 minutes.
9. In considering the evidence of Mr Simons, counsel for Stirling pointed out that Mr Simons did not recall the visit on 22 July 2006 by the testator's general practitioner, Dr Vidor. However, the failure of Mr Simons to recall a visit by Dr Vidor is of no significance unless the evidence established that they were present at the home of the testator at the same time. The evidence does not support such a conclusion.
10. Mr Simons said he watched a television broadcast of horseracing with the testator from approximately 12.30pm until 5pm on 22 July 2006. Dr Vidor visited the testator that day, but he was not asked about the time of his attendance. Palliative care records established that Dr Vidor telephoned the palliative care facility at about 2pm on 22 July 2006 and advised that he had attended upon the testator. It was not suggested to Dr Vidor that he visited the testator at about 2pm, and the nature of the palliative care records strongly suggests that he had completed his visit at some time before 2pm when he made the telephone call to report the fact of his visit.
11. In these circumstances there was no basis for the suggestion that Mr Simons possessed a faulty memory because he did not recall the visit by Dr Vidor. It was open to the learned trial judge to accept the evidence of Mr Simons and to find that it provided strong support for the evidence of Tamzin that Mr Manser visited on 22 July and not, as noted by Mr Manser, on 23 July 2006.

1. At the hearing of the appeal counsel for Stirling provided a list of transcript references where it was contended that the evidence of Tamzin was implausible, either because the evidence was implausible in itself or because it was in conflict with the evidence of other witnesses. A number of those references relate to the topics already discussed and to issues discussed later in these reasons. It is not necessary to canvass each of those references. It is sufficient to note that there is force in the point made in the supplementary written submissions of Tamzin that, on the appeal, Stirling has delved into the "minutiae of evidence" in order to extract inconsistencies in the evidence as support for his various contentions. However, upon proper analysis, as demonstrated by the supplementary written submissions of Tamzin, many of these references raise issues or conflicts of minor significance either in themselves or when viewed in conjunction with other evidence. All of these matters were brought to the attention of the learned trial judge and it is apparent that his Honour paid careful regard to them.

1. The learned trial judge referred at length to the evidence of Tamzin, including cross-examination about matters which might affect the credibility of her evidence [14]-[54]. In particular, his Honour referred to the following matters:
   • Tamzin was aware that there was no guarantee that the trustees of the testamentary trust in the July will would make distributions from the trust in the ratio of 50% to her daughter and 50% between Stirling's three children and that, notwithstanding such knowledge, she made no challenge to the validity of the July will until commencing the current action on 23 October 2015.
   • Tamzin accepted that in the previous affidavit sworn by her in the Testator's Family Maintenance Act proceedings brought by the testator's widow, she did not mention anything about the testator's concerns about the terms of the July will about which she gave evidence in the current proceedings.
   • Tamzin accepted that contrary to her evidence in the current proceedings, in her previous affidavit she swore that Mr Manser discussed all the testator's concerns about the July will to the satisfaction of the testator.
   • Tamzin acknowledged that she understood she was personally better off under the terms of the June will and it was in her personal interest to assert that the testator did not have testamentary capacity to make the July will.
   • Tamzin's evidence was in conflict with the evidence of both Mr Manser and Mr Ng.
   • There were details of events, including drugs provided to the testator, that were given by Tamzin in evidence but not in documents related to previous proceedings.
   • Tamzin acknowledged that she did not raise with Mr Manser the question of the testator's capacity to make the July will.
   • In cross-examination about her independent recollection of the day of 23 July 2006, Tamzin said it was "minute by minute".
   • There was no record in her diary of the visit by Dr Vidor on 22 July and no reference to the commencement of the syringe driver.
   • The important entries for 23 July were in pencil and the "font" for the entry of 23 July was similar to only a couple of other entries.
2. The learned trial judge referred to the attack by Stirling on Tamzin's "credit generally", including the introduction of her diary into the proceedings. His Honour referred to other matters relied upon by counsel for Stirling in attacking the reliability of Tamzin's evidence.
3. As to the diary, the learned trial judge dealt with that matter in the following passage [295]:

"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."

1. Dealing with the evidence of Tamzin generally, after referring to the submissions attacking Tamzin's credit, the learned trial judge explained his view in the following passages [292]-[294]:

"292 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.

293 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.

294 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."

1. The learned trial judge was well aware of the conflict between Tamzin and Mr Manser. He was also aware of the significance of the evidence of Mr Simons with respect to the date that Mr Manser attended upon the testator and the fact that it had not been put to Mr Simons that the lawyer had not visited on the same day as Mr and Mrs Ng, but on the previous day. In that context his Honour said [92]:

"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."

1. It is apparent, therefore, that the learned trial judge regarded the evidence of Mr Simons as reliable concerning the date upon which Mr Manser attended upon the testator. In other words, the evidence of Tamzin that Mr Manser attended on 23 July 2006, and not 22 July 2006 as recorded by Mr Manser in his notes, was corroborated by evidence which the learned trial judge regarded as reliable. That finding was open to his Honour and there is no basis upon which this Court could interfere with that finding.
2. It is correct that the learned trial judge did not specifically make a finding as to the conflict between Tamzin and Mr Manser concerning the content of the discussion between the testator and Mr Manser and the extent to which Tamzin was involved. However, his Honour accepted the corroborated evidence of Tamzin concerning the date of Mr Manser's attendance and it follows that he was satisfied that Mr Manser's note of attending on 22 July was incorrect. Further, in addressing the application of the rule in Parker v Felgate, his Honour did not find it necessary to make a final determination as to the content of the discussion. Having observed that the July will did not "reflect the testator's instructions in a substantial respect" and that an essential limb of the rule in Parker v Felgate had not been established, the learned trial judge said [287]:

"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."

1. For these reasons, in my opinion the matters to which Stirling refers as supporting the contention that the learned trial judge erred in finding that he had no cause to disbelieve Tamzin's evidence of the final days of the testator do not, either individually or in combination, support Stirling's contention of error. In my view, there is no basis upon which this Court could interfere with the findings of the learned trial judge with respect to the various matters relied upon by Stirling.
2. The particular finding of fact which ground 3 asserts was an error is said to be a finding by the learned trial judge that he had "no cause to disbelieve Tamzin's evidence of the final days" of the testator. Two further observations need to be made concerning this assertion.
3. First, as I have discussed, the learned trial judge engaged in a lengthy consideration of all of the evidence and that consideration was not limited to the events of 22 and 23 July 2006. His Honour had regard to evidence of events occurring over a number of years and to a significant volume of documentation concerning those events. It is in this context that his Honour reached various conclusions.
4. Secondly, the particular passage in which his Honour spoke of not having cause to disbelieve Tamzin occurred in [321] of a lengthy judgment and after his Honour had addressed the question of Tamzin's credit and the various attacks upon her credit. By the time his Honour made this comment, he had addressed each of the criticisms of Tamzin's evidence and made findings which included, in particular, his finding that notwithstanding the attacks upon her credit, Tamzin was an honest and reliable witness.
5. Against that background, the learned trial judge addressed the issues of acquiescence, delay and prejudice. In the course of dealing with the evidence concerning those issues, his Honour contrasted the circumstances of an authority to which he had been referred with the situation where the evidence has been heard and the trial judge is able to assess and compare evidence led at the trial with evidence that might have been lost or deteriorated in quality. It was in this context that his Honour spoke of not having cause to disbelieve Tamzin [321]:

"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." [My emphasis.]

1. The learned trial judge did not start with an assumption that he had no cause to disbelieve Tamzin. His Honour addressed the attack upon her credit and, in the context of his consideration of all of the evidence, found that she was honest and reliable in essential respects. In this passage his Honour was reflecting his earlier ruling that Tamzin was an honest and reliable witness. It is in that context that his Honour said he did not have cause to disbelieve Tamzin. The basis of ground 3 is a mischaracterisation of the particular statement by the learned trial judge.

1. Ground 3A asserts that the discretion of the learned trial judge miscarried because he proceeded on the basis of two erroneous findings of fact. First, that he had "no cause to doubt the evidence of the respondent". This complaint is based upon the matters asserted in ground 3 which, for the reasons given, must fail.
2. The second erroneous finding of fact asserted by ground 3A is expressed as follows:

"(b) Tamzin's state of belief that the will provided for '50/50' was sufficient justification for propounding the will and administering the estate for nine years without challenging the validity of the grant."

1. Again, the ground of appeal seeks to extract a single passage from the judgment and elevate it to the sole basis upon which the learned trial judge proceeded when he was considering Tamzin's conduct in propounding the will and administering the estate for nine years rather than challenging the validity of the grant. The assertion in ground 3A does not accurately reflect the approach of the learned trial judge to the evidence. Nor does it accurately reflect his Honour's reasoning.
2. At the outset of his reasons, the learned trial judge identified as one of the "central and determinative issues" the question whether Tamzin was "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" [12]. His Honour then dealt with the evidence of the various witnesses, after which he repeated the issues and discussed, accurately, the relevant legal principles. In the course of the discussion concerning the law, his Honour correctly directed himself as to the principles concerning delay and acquiescence, which included the conduct and state of mind of the person seeking revocation of a grant of probate [266]-[272].
3. Having dealt with the issue of testamentary capacity, the learned trial judge again correctly directed himself as to his principal focus and the need to take into account facts including "acquiescence or delay, and of course any resultant prejudice" [300]. His Honour referred to the "checklist" which counsel for Stirling had advanced in his written submission and which included the delay and any explanation for the delay on the part of Tamzin in challenging the grant of probate. His Honour then set out the closing submissions of counsel for Stirling which dealt with the conduct and state of mind of Tamzin.
4. The learned trial judge then dealt with the conduct of Tamzin and her state of mind [305]-[312]:

"305 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.

306 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.

307 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'.

308 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.

309 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'.

310 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.

311 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.

312 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'."

1. The learned trial judge then discussed the issue of the impact of delay on the recollections of witnesses and the loss of documents, following which he referred to part of Stirling's evidence and concluded that he did not accept that any delay on Tamzin's part resulted in any "relevant deterioration in Stirling's memory" [327]. His Honour then moved to what he described as the "third category of conduct" which was relevant to the question of discretion, namely, the steps taken by Tamzin in the administration of the estate. After dealing with the steps taken in the administration and the question of wasted expenditure, the learned trial judge moved to his conclusion that he should exercise his discretion to revoke the grant of probate. In the course of expressing his conclusions, his Honour said [335]:

"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." [My emphasis.]

1. The learned trial judge did not make a specific finding that Tamzin's belief that the will provided for a 50/50 distribution was "sufficient justification for propounding the will and administering the estate for nine years without challenging the validity of the grant" (ground 3A(b)). Not surprisingly, his Honour regarded Tamzin's state of mind as of "considerable importance" [305]. His Honour had regard to a multitude of factors and did not isolate the particular belief of Tamzin about which ground 3A(b) speaks as being determinative.
2. There was ample evidence to support the various findings made by the learned trial judge. In particular as to the reasons for Tamzin's delay and her conduct in partaking in the administration of the estate, the learned trial judge accepted Tamzin's evidence that while she had concerns about her father's testamentary capacity and about the failure of the will to specifically provide for a 50/50 distribution, she accepted the assurances of Mr Manser that the trustees would deal with that issue and that it was "okay" for the testator to sign the will.
3. In the context of the conduct of Tamzin in seeking probate for the July will, during oral submissions counsel for Stirling urged this Court to infer that at the time the July will was signed, Tamzin believed that the testator lacked testamentary capacity. Attention was drawn to Tamzin's affidavit and parts of her evidence.
4. In her affidavit Tamzin spoke of telling the testator that she could not let him sign the will:

"36 At about midday [on 23 July 2006] 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."

1. During cross-examination Tamzin said she had "concerns" about the testator's capacity and she raised the matter with a solicitor, Mr Morris. In addition, she called Mr Manser because she was concerned about the testator's capacity and, when Mr Manser was at the house, he told her it was "okay" for the testator to sign.
2. Counsel urged that this Court should infer that Tamzin believed the testator lacked capacity because of her conduct in saying to the testator that she could not let him sign the will because he had been pumped full of pain killers. I do not agree. It was not put to Tamzin that she possessed such a belief and such an inference does not follow from her conduct It was a very traumatic time during which Tamzin was treating and caring for her dying father. Given the concerns her father had expressed about the will, Tamzin's conduct in telling him that he should not sign because he was full of pain killers does not suggest she believed the testator lacked capacity. It reflects no more than a daughter's concern for her father's wellbeing and state of mind during a sad and traumatic period.
3. In the context of this issue, counsel for Stirling drew attention to an answer given by Tamzin during cross-examination (AB 818):

"Q: You thought your father had capacity when he executed it on 23rd of July?

1. The answer, even taken in isolation, does not support the contention that, at the time of execution of the will, Tamzin believed that the testator lacked capacity to execute it. It was an answer that Tamzin was about to qualify when she was interrupted. The evidence that immediately followed clarified her state of mind that she had concerns, but accepted the advice of Mr Manser that it was okay for the testator to sign (AB 818 and 819):

"Q: Well why then did you submit to the Court that will in circumstances where you didn't think it was the last valid will?

A: Because Mr Manser said it was okay to sign. I asked him was it okay for him to sign the will.

Q: Well when did you form the view that your father didn't have the capacity to execute a will?

A: I was concerned on the day and I sought Mr Manser's advice.

A: I always had concerns, but I believed the will to be correct.

1. The evidence to which counsel for Stirling has referred does not support an inference that at the time the testator executed the July will, Tamzin believed that the testator lacked the necessary capacity. Importantly, it does not provide a basis for interfering with the findings of the learned trial judge in this regard. On the evidence accepted by the learned trial judge, Tamzin had concerns about the testator's capacity, but was reassured by the response from Mr Manser that it was okay for the testator to sign.
2. As to Tamzin's subsequent conduct, in evidence accepted by the learned trial judge Tamzin said she believed the wishes of the testator would be carried into effect under the terms of the July will. That belief was, for a few years, well founded.
3. At the first meeting of the trustees held on 17 October 2006, the trustees agreed on a 50/50 distribution which Tamzin believed accorded with the wishes of the testator. Paragraph 4 of the minutes of that meeting was expressed in the following terms:

"4 Capital and income distributions are to be 50% for the children and remoter issue of Tamzin Hookway and 50% for the children and remoter issue of Stirling Hookway."

1. The trustees having passed that resolution, Stirling agreed in evidence that the agreement was subsequently implemented by the trustees. On 1 February 2010 Tamzin sent an email to Stirling which stated that the proceeds of the trust assets were to be split 50/50 and the split was not discretionary:

"Trust assets proceeds to be distributed between Stirling and Tamzin's children fifty-fifty respectively, ie Hannah receives 50% and your children 50%.

The split is not a discretionary part of the trust as per Peter Hookway's instructions."

1. Although in oral evidence Stirling prevaricated about whether he agreed with the email, he responded quickly with an email in the following terms:

"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. But I think we have decided to change the status of Medan Street."

1. Stirling agreed that they were contemplating a formal document to record that the trust assets and income were to be split 50% to Tamzin's child and 50% to Stirling's children. Trust distributions were made on a 50/50 basis.
2. Tamzin gave evidence that after the testator died, she trusted Stirling "on everything" (AB 782). However, in early 2010 when obtaining advice about updating her will, a solicitor said to her, "You shouldn't be trusting your brother so much" (AB 781). In addition, Tamzin said that she was told by another solicitor that she was "out of time" and the will was "set".
3. On 26 May 2010 Tamzin spoke with Mr Manser. They discussed the question of the trust and the role of the trustees.
4. It was against this background that Tamzin took no action until after the co-operation between her and Stirling ceased and after she received advice that she could take action to revoke the grant of probate. As a consequence of Tamzin taking steps to wind-up certain companies, it was in 2012 that co-operation between her and Stirling ceased to exist.
5. Stirling agreed in evidence that on 1 November 2012 he and Tamzin were not on speaking terms and all communications were reduced to writing. On 1 November 2012 Stirling sent an email to Tamzin:

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

1. As to what he meant by "no going back", Stirling said he would no longer have finances at his disposal to buy out Hannah or portion of Hannah's share, "so there'll be no way that we'd be able to distribute the trust, sorry, claim the trust 50/50".
2. Asked what he meant by the conciliatory position changing regarding the trust, Stirling said "the conciliatory position was that it's 50/50". Stirling agreed that his anger caused him, as at 1 November 2012, to dispute that the trust income and assets should be shared 50/50.
3. As counsel for Tamzin put it, up until 1 November 2012 there had been no issue as to what the testator intended and distributions had been made on a 50/50 basis. In effect, there had been no need for Tamzin to do anything as everyone was agreed about the testator's wishes concerning a 50/50 split and they were being carried into effect.
4. In considering the delay after 2012, the learned trial judge accepted Tamzin's evidence that in March or April 2010 she had been advised by a solicitor that she was "out of time" and that "the will was set". His Honour regarded that evidence 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" [310]. The learned trial judge regarded the delay between receiving that advice and the institution of the proceedings as "insignificant".
5. On the basis of the findings made by the learned trial judge, from Tamzin's perspective the trustees had agreed to administer the estate in accordance with the instructions or wishes of the testator. Those wishes were carried into effect. In these circumstances, it is not surprising that notwithstanding her concerns about the testator's capacity at the time he signed the July will, Tamzin chose to be involved in obtaining probate and administering the will. It was a reasonable explanation for her conduct.
6. In my opinion, the learned trial judge did not make the singular finding about which ground 3A(b) complains. However, his Honour found that there was "no sufficient disqualifying conduct on the part of Tamzin to preclude her from obtaining the relief she seeks" in the sense that, considered in conjunction with all the other evidence and having regard to her explanation, her conduct did not cause his Honour to decline to exercise his discretion to revoke the grant of probate. That was a finding that was open to his Honour and it is a finding with which I agree.
7. For these reasons, ground 3A fails.

1. Ground 4 asserts that the learned trial judge "erred in failing to find that the testator had testamentary capacity at the time of execution of the July will" in particular having regard to particular findings that ground 4 asserts were erroneous. However, in written and oral submissions counsel for Stirling stated plainly that Stirling does not challenge the finding that the testator lacked testamentary capacity at the time he signed the July will. It became necessary, therefore, for counsel to explain why ground 4 remained a ground of appeal.
2. At the outset of submissions, counsel for Stirling said that if Stirling did not succeed on discretionary factors, he would not succeed on ground 4. Later, counsel said he thought he had made it clear that Stirling did not press ground 4 "as expressed", but counsel sought to leave open under ground 4 the rule in Parker v Felgate on the basis that Professor Ashby's evidence "relied upon evidence as to the demeanour and conduct and what occurred at the time of execution of the will". In other words, if there was a doubt about the evidence of Tamzin, the basis of Professor Ashby's opinion would be undermined.
3. For the reasons discussed, in my opinion it was open to the learned trial judge to accept the evidence of Tamzin in its essential respects and there is no basis on which this Court could properly interfere with those findings. Leaving aside the fact that the wording of ground 4 is inappropriate if it is meant to relate to the operation of the rule in Parker v Felgate and no amendment was sought, the basis upon which counsel sought to argue this question cannot stand with the findings of the learned trial judge.

1. Ground 1 is an attack upon the finding of the learned trial judge in relation to the issue of "prejudice":

"1 The primary judge erred in failing to find that the 9 year delay between the grant of probate and the commencement of the proceeding necessarily caused prejudice, through deteriorating recollections of material witnesses and lost documents."

1. It may be accepted without hesitation that a nine-year delay between events and the giving of evidence necessarily causes difficulties for witnesses and parties. Details are forgotten and recollections change. Documents can be lost. However, it does not necessarily follow that a trial of issues many years after the events involves an abuse of process or cannot be fair to either or both parties. Each case must be determined according to its particular circumstances and an attempt made to identify the nature and extent of the prejudice which is said to have been caused by the delay.
2. Stirling's written submissions advanced the proposition that the learned trial judge erred in making findings based on his assessment of the trial evidence "without first assessing whether the diminished quality of that evidence constituted prejudice by reason of which the discretion to revoke probate should not have been exercised". The submission continued:

"Before determining whether testamentary capacity was established, his Honour should have considered whether the appellant (Stirling) would be so prejudiced by the passage of time that he should not be put to the task of proving valid execution of the will."

1. To the extent that the submission might suggest that the learned trial judge should undertake an exercise concerning prejudice in some way divorced from an assessment of the evidence, the submission is misconceived. In order to assess the prejudice, his Honour necessarily had to have regard to the issues and the evidence presented. Only in this way could his Honour assess whether the delay had caused relevant prejudice to Stirling.
2. The written submission also contended that before making findings of fact, the learned trial judge should have undertaken an independent exercise of assessing "whether the diminished quality of [the] evidence constituted prejudice by reason of which the discretion to revoke probate should not have been exercised". In my view, this is to compartmentalise an approach to the issues and evidence in an inappropriate manner. I agree with the approach of the learned trial judge in first considering the entirety of the evidence in detail, and the law, before addressing questions of fact and prejudice. In this process, as his Honour explained at [12], he had in mind the "central and determinative issues" raised by the pleadings "in a logical order", the first of which was whether Tamzin was 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".
3. In considering the issue of delay and prejudice, it is appropriate to bear in mind the pleadings in this regard. Paragraph 16 of Stirling's defence pleaded prejudice in the following terms:

"16 The Estate of the Testator is prejudiced by the delay in the bringing of this action in that:

(a) material evidence in opposition to the action may have been lost due to the lapse of time as documents may have been lost or destroyed and/or key witnesses may be unavailable or not recall the facts giving rise to the plaintiff's claim; and

(b) the Estate of the Testator has already incurred significant expenses in the administration of the July Will.

(Further particulars to be provided upon discovery of further prejudice in the preparation of this action for trial.)"

1. Stirling did not provide further particulars of prejudice before or during the trial.
2. As to the approach of the learned trial judge, having considered the evidence and submissions, it would have been open to his Honour to deal first with the question of prejudice by reason of matters such as loss of documents and fading memories. However, the question of testamentary capacity was a fundamental issue to be determined. If the evidence established the existence of testamentary capacity, Tamzin's application necessarily failed. In these circumstances, it was open to the learned trial judge to address first the question of testamentary capacity before considering the issues of delay and prejudice. In my view there is no error in the approach taken by the learned trial judge. In any event, as will be seen from these reasons, in my opinion Stirling's case with respect to prejudice fails.
3. As to the specific effects of delay, the learned trial judge paid particular attention to Stirling's submission that recollections of witnesses had faded and documents had been lost [313]-[320]:

"313 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.

314 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.'

315 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.'

316 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.

317 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.

318 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.

319 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.

320 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."

1. The learned trial judge dealt specifically with the issue of Stirling's professed lack of memory as to what the testator said about changing his mind. The difficulty facing Stirling on the appeal is the finding of learned trial judge that he did not believe Stirling. In addition, it is relevant to note that while Stirling professed the lack of memory as to what the testator said about changing his mind, the remainder of his evidence contained relatively few expressions of a lack of memory or uncertainty due to the lapse of time. In these circumstances, the learned trial judge was justified in his view that he did not "accept that any delay on Tamzin's part in bringing the present action resulted in any relevant deterioration in Stirling's memory" [327].
2. Each of the matters to which Stirling now draws attention in the context of the delay and prejudice to Stirling was put to the learned trial judge in closing submissions. It is readily apparent that his Honour paid careful attention to them. He dealt with some of the witnesses specifically. It is noteworthy that witnesses such as Mr Manser and Mr Simons did not profess a lack of memory as to essential questions, and Dr Vidor's evidence related to 22 July 2006 about which there was little dispute. Even if Dr Vidor had available his clinical records, as he did not see the testator on 23 July 2006 he would not have been in a position to comment on his testamentary capacity.
3. Importantly, the learned trial judge observed that having heard all of the "available evidence", a "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" [321]. Having made that observation, his Honour said [321]:

"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."

1. The learned trial judge then noted that, "not having cause to disbelieve Tamzin", he did not "apprehend" that he would have been particularly assisted by evidence from the testator's widow.
2. The learned trial judge was in a better position than this Court to determine the extent to which the memories of individual witnesses were hampered by the passage of time. His Honour was also in a better position to determine whether the evidence of a particular witness might be unreliable by reason of the delay. In this way his Honour was able to assess whether Stirling was prejudiced by the delay and, if so, to what extent. I am unable to discern any error in the approach taken by his Honour to these issues. Further, in my opinion his Honour reached the correct conclusions.
3. It follows that in my view both grounds 1 and 2 fail. The learned trial judge correctly found that he was "not satisfied of the existence of any significant prejudice to Stirling or to the estate" [336].

1. Section 45 of the Supreme Court Civil Procedure Act 1932 provides that on an appeal from judgments given in the exercise of a discretionary jurisdiction, the Full Court shall not interfere unless it appears that the learned trial judge has proceeded on a wrong principle, has misapprehended the facts, has failed to consider any material fact, or the adjudication is founded wholly or in part on an erroneous finding of fact. None of these matters has been made out by Stirling. To the contrary, in my view the learned trial judge correctly determined that he should exercise his discretion to revoke the grant of probate of the July will.
2. For these reasons I would dismiss the appeal.

1. The late Peter Hookway died shortly after midnight on 24 July 2006. On 23 July 2006 he made a new will which replaced one he had made on 13 June 2006. This appeal raises for consideration whether the primary judge properly exercised his discretion to revoke a grant of probate of the 23 July will.
2. The appellant, Mr Stirling Hookway, was the defendant in the proceeding before his Honour: Hookway v Hookway [2016] TASSC 28, and his sister, Ms Tamzin Hookway, the now respondent, was the plaintiff. The parties are the children of the testator. Tamzin succeeded in the proceeding below. The primary judge held that Tamzin was not precluded by acquiescence and affirmation, delay and/or relevant prejudice to Stirling or the estate from applying to have the grant of probate of the 23 July will revoked. His Honour found that there was evidence to invite a suspicion that the testator did not have the testamentary capacity to make the 23 July will. Next, the primary judge considered that Stirling had not proved that the testator had testamentary capacity to make the 23 July will, and/or knew and approved of its contents. Finally, his Honour held that the rule in Parker v Felgate (1883) LR 8 PD 171, had not been engaged in the circumstances of the case. The primary judge rejected Stirling's contention that the 23 July will was made in accordance with instructions provided to a solicitor, Mr Manser, earlier in July 2006.

1. The issues on the appeal may be summarised as follows:

1. Did Tamzin's nine-year delay from the making of the 23 July will to the bringing of proceedings prejudice Stirling's ability to prove the testator's testamentary capacity? 2. Did the primary judge misunderstand the nature of the prejudice occasioned by the delay?

1. Did the primary judge form an unjustifiably benevolent view of Tamzin's evidence?

1. Should the primary judge's conclusions on the evidence be considered vitiated by errors of fact finding? 2. Was the rule in Parker v Felgate engaged?

1. The testator had been terminally ill with cancer. At the time of his death he was being cared for by Tamzin, who had been a registered nurse. Tamzin lived in an apartment underneath that of the testator. A palliative care nurse visited the testator at his home at about 6pm on 22 July 2006 and connected him to a device called a "syringe driver". The syringe driver automatically administered measured doses of drugs (morphine and midazolam) to the testator. The palliative care nurse showed Tamzin how to use the syringe driver to deliver further measured doses called "breakthrough medication" as needed by the testator.
2. On the morning of 23 July 2006, the testator became restless. Tamzin administered breakthrough medication to keep him comfortable. By late afternoon the testator had become unstable on his feet and needed assistance to move about.
3. In the mid-afternoon Tamzin and the testator had a discussion about the then proposed 23 July will. The primary judge accepted Tamzin's evidence to the effect that the document did not accord with instructions the testator had given to his solicitor, Mr Manser. The issue in contention concerned a testamentary trust under which Tamzin's daughter would benefit as to 50% and the children of Stirling as to the other 50% of certain lots.
4. The primary judge accepted the evidence of Tamzin that Mr Manser arrived at the testator's home at about 4.45pm to 5pm on 23 July and left shortly after 5pm. Tamzin said Mr Manser did not mention any previous conversations with the testator about the will. She told Mr Manser that the testator had two questions about the trust and was anxious about it being correct. Tamzin told Mr Manser that "the document doesn't say the Trust is 50/50" (meaning a 50/50 split between her child and Stirling's children). Mr Manser's reply to the testator was "your Trustees will ensure that". Tamzin then raised a further query which had also been raised by her father earlier in the day about the age at which the grandchildren could be owners of the property the subject of the trust. Mr Manser replied, "your Trustees can decide that". Mr Manser told Tamzin it was "OK" for the testator to sign the will.
5. Tamzin provided a breakthrough dose of medication shortly after 5pm. Whilst she was concerned about the testator's condition to be making decisions about his estate, she considered that if Mr Manser had reassured him that the will reflected his wishes, if he signed it he would be able to rest.
6. Tamzin arranged for neighbours, Mr and Mrs Ng, to witness the signing of the will at about 7.30pm. The testator did not know where to sign and so Tamzin showed him where to do so. He practised his signature on a spare piece of paper and could barely hold his pen.
7. After signing the will the testator went to bed. His condition deteriorated and he required further breakthrough doses of medication. Tamzin attended on him until his death shortly after midnight.
8. Mr Max Simons, a friend of the testator, visited him on 23 July in the afternoon and stayed until the testator went to bed at about 8pm. Mr Simons said that a lawyer arrived about 4.30pm, had a brief discussion with Tamzin and the testator, and then left after 10 to 20 minutes. Mr Simons said he saw Mr and Mrs Ng come over to witness the will a couple of hours after the lawyer left. Mr Simons was also at the testator's home watching the races with him on 22 July. He said that if Mr Manser visited on 22 July, he did not see him on that day.
9. The primary judge preferred the evidence of Tamzin and Mr Simons over the evidence of Mr Manser, contained in a file note that he visited the testator on 22 July not 23 July. Mr Manser wrote to the testator on 21 July providing him with the amended draft will. He said the amended will accorded with instructions he had received from the testator personally and via Stirling. Mr Manser gave evidence that he attended at the testator's house to discuss the will on 22 July and not 23 July. He said he spent an hour talking to the testator, after speaking to Tamzin for 10 to 15 minutes.
10. Mr Manser gave evidence that he received a letter from the testator, on or about 5 July 2006, instructing him to prepare a discretionary testamentary trust for his will. The precise manner in which the trust dealt with certain lots of property was the subject of a change conveyed to Mr Manser by Stirling in an email on 12 July 2006. Mr Manser said in his affidavit evidence that:

"... 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. ...".

1. Mr Manser said that he did not point out the change in the testamentary trust from his 5 July instructions in his 21 July letter. He said that the testator did not contact him after 21 July to discuss the draft or any amendments to the will.
2. In a file note recorded on 24 July, Mr Manser recorded an attendance on the testator on 22 July. Mr Manser said that no one asked him about the content of the will during his visit. At [222] of his reasons, the primary judge observed:

"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."

"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." [Original emphasis.]

1. His Honour held that the 23 July will did not reflect the testator's 5 July instructions as modified by the 12 July email to Mr Manser from Stirling on the testator's behalf. At [284] his Honour said:

"... 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."

1. At [285] the primary judge found that the will did not reflect the testator's instructions in a substantial respect. He said Mr Manser did not follow the testator's instructions and "did not explain to him what he had done so as to allow the testator to ratify the deviation". His Honour observed that the position is unaltered even if it is accepted that Mr Manser visited on 22 July as the testator cannot be shown to have appreciated the divergence between his instructions and the actual terms of the proposed will as at 22 July. His Honour also observed that Professor Ashby, an expert in palliative care medicine, had given evidence that it was only possible that the testator may have recognised the will as the testator's actual will document.

Approach to discerning error in a discretionary judgment

1. In House v the King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, Dixon, Evatt and McTiernan JJ said:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

1. In Coal and Allied Operations v Australian Industrial Relations Commission [2000] HCA 47, 203 CLR 194 at [21], the High Court observed that a decision-maker exercising a discretion is allowed some latitude as to the decision to be made and that the correctness of the decision can only be challenged by showing error in the decision-making process. See also s 45 of the Supreme Court Civil Procedure Act 1932.

"The primary judge erred in failing to find that the 9 year delay between the grant of probate and the commencement of the proceeding necessarily caused prejudice, through deteriorating recollections of material witnesses and lost documents."

1. The appellant observes that the validity of the will was not challenged until 23 October 2015, and that evidence in the trial was given in February and April 2016. He submits that the quality of available evidence deteriorated in the following ways:
   • documentary records were lost;
   • identifiable events and details were forgotten;
   • some matters about which the Court can never know have been forgotten; and
   • reliability of witnesses' recollections was necessarily diminished.
2. The respondent submits that no appealable error in the sense discussed in House v The King is raised by this ground of appeal. She contends that delay per se is not a reason to refuse to exercise a discretion to revoke a grant of probate.
3. The primary judge accepted Tamzin's reasons for the delay and discussed the belief she held until 2012 that "the trust was still fifty-fifty" [as between her child and Stirling's children]. The judge also referred to oral advice Tamzin received from a solicitor in 2010 that "the will was set".
4. The primary judge accepted that the 2010 oral advice was a sufficient explanation for any delay between 2012 and February 2015 when Tamzin first received advice from her senior counsel. 1 November 2012 was the day, according to Tamzin, that Stirling said, "he would no longer be conciliatory".
5. His Honour also dealt specifically with the issue of fading recollections of material witnesses and an allegation that documents had been lost. See [313] ff of his reasons. Importantly the primary judge did not accept that any delay in bringing the proceeding caused "any relevant deterioration in Stirling's memory". See [327] of his Honour's reasons.
6. There was no limitation of time on the bringing of the action. His Honour was well aware of the possible prejudice to the appellant due to the passage of time. He took that matter into consideration, but nonetheless, for the reasons he gave, exercised his discretion in favour of the respondent. No error in the sense discussed in House v The King is disclosed by ground 1 of the appeal.

"Having regard to ground 1, the primary judge proceeded on an erroneous finding of fact - that the delay did not cause prejudice to the administration of justice by the passage of time - and his Honour's discretion thereby miscarried."

1. This appeal ground contends that his Honour should have considered the question of delay before making findings about the testator's testamentary capacity. This appeal ground adds little to appeal ground 1, and is essentially a complaint about the order in which the primary judge dealt with the issues requiring resolution. As senior counsel for the respondent contends, this appeal ground fails to identify any legal or factual error engaged in by the primary judge. As developed in argument, this appeal ground takes issue with findings of fact made by the judge. Senior counsel for the appellant also contends that the primary judge unduly limited the discretionary factors considered by him. However all possible discretionary factors which were identified by counsel at the trial were put to his Honour and he dealt with them. No appealable error is raised by this ground of appeal.

"The learned primary judge erred in finding that he had no cause to disbelieve the respondent's evidence of the final days of the late Peter Hookway (the testator), when the evidence disclosed:

(c) that her evidence was inherently implausible; and

(d) her evidence to be contradicted by Mr Manser and Mr Ng."

1. This appeal ground will only engage the principle in House v The King if the primary judge can be seen not to have taken into account some material consideration.
2. The appellant alleges that the respondent altered her diary to record a visit to the testator by a Dr Dunne on 18 July 2006. Tamzin gave evidence that the font used for that entry was similar to that used for a 23 July 2006 entry asserting the attendance on that day by Mr Manser. Senior counsel for the appellant points to other evidence suggesting that Dr Dunne had visited earlier, on 14 July. Counsel submits that the only plausible reason for the recording of a visit by Dr Dunne was that it was added after Tamzin received Dr Dunne's affidavit.
3. In his submissions senior counsel for the respondent observes that it was not put to Tamzin at the trial that her diary entry for 18 July was false. It was also noted that it was not put to Tamzin at trial that the entry for 23 July was false.
4. Senior counsel for the appellant stresses that in the appellant's closing submissions (filed on 20 April 2016), the appellant submitted that the Court should infer that the 18 and 23 July entries were "recent additions". Senior counsel notes that the primary judge did not deal with that submission.
5. Senior counsel for the respondent contends that no consequence flows from any lack of express reference in the primary judge's reasons to a submission which was unsupported by any testing of Tamzin on the issue at trial.
6. As senior counsel for the appellant submits, his Honour dealt extensively with Tamzin's diary and her cross-examination about it. None of that cross-examination raised any issue about the veracity of the 18 and 23 July entries. His Honour was not bound to deal with a submission which had no evidentiary foundation. This aspect of this ground of appeal is unmeritorious.
7. Senior counsel for the appellant next refers to a "prior inconsistent statement" made in an affidavit by Tamzin in a proceeding brought in 2008 under the Testator's Family Maintenance Act 1912. It is not suggested that the primary judge failed to deal with this issue. The complaint is that he did not view the inconsistency as significant. This aspect of this ground of appeal seeks to query a factual finding open to his Honour and does not reveal any error in the House v The King sense.
8. Next under this ground of appeal, the appellant alleges that his Honour should have considered Tamzin's evidence to be implausible due to the passage of time. This argument lacks merit because it seeks to quarrel with factual findings made by the primary judge which were open to him and, again, demonstrates no error of the kind discussed in House v The King.
9. Senior counsel for the appellant next submits that Tamzin's evidence was contradicted by witnesses whose credit was not in doubt and not challenged. Counsel submits that the primary judge did not weigh up the competing evidence and say why Tamzin's evidence was preferred where there was conflict. This contention also seeks to quarrel with factual findings made by the primary judge. The primary judge made it clear that he accepted Tamzin's version of events leading up to the signing of the will. At [293]-[295], his Honour set out why he accepted Tamzin as "an honest and reliable witness", although he accepted at [294] that she "may well be genuinely mistaken about some things". This submission of the appellant does not raise any appealable error in the sense discussed in House v The King.

1. This ground alleges that the primary judge erred in failing to find the testator had testamentary capacity at the time of the execution of the July will. This alleged failure is based on alleged "erroneous findings" made by the primary judge.
2. The first complaint under this ground is that the primary judge found the evidence of Mr Simons and Tamzin about the date and duration of Mr Manser's visit more believable than Mr Manser's file note. This complaint does not show appealable error. The primary judge was entitled to prefer the evidence of Mr Simons and Tamzin over that of Mr Manser for the reasons he gave. In any event for the reasons he gave at [287] of his judgment, the primary judge did not find the date of Mr Manser's attendance decisive on the issue of testamentary capacity. His Honour said that Mr Manser's evidence could not 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" [original emphasis].
3. The appellant alleges that in finding Mr Simons' evidence of Mr Manser's visit unchallenged, his Honour overlooked the cross-examination of Mr Simons by the appellant's counsel. That cross-examination was:

"Is it possible that the solicitor that you refer to in your affidavit actually came up on the Saturday, the 22nd of July?"

"... I want to suggest to you that the solicitor was there for about an hour and a quarter?"

The answer was: "I would have thought about half an hour."

Mr Simons agreed that it was an estimate, given that it was a long time ago.

1. Simply because this cross-examination is not mentioned in the judgment does not mean that it has been ignored. The cross-examiner merely asked whether it was possible that Mr Manser attended on 22 July. He did not put to Mr Simons that he was wrong about the attendance on 23 July. Again, the timing of Mr Manser's attendance and its duration were not critical elements of his Honour's reasoning for the reasons he expressed at [287] of his reasons and referred to above. The duration of the attendance is not as critical as what transpired during it. There was no evidence that the testator had the differences between his 5 July instructions and the terms of the will explained to him.
2. The appeal ground then deals with the primary judge's acceptance of the evidence of Professor Ashby as uncontradicted, and his Honour's treatment of the evidence of Professor Ashby as decisive. It challenges his Honour's finding that differences between the accounts of those who saw the testator in his final days did not inform the determination of the question of his capacity. It also challenges the finding that Tamzin's evidence about the circumstances of the execution should be accepted despite her prior sworn evidence to the contrary.
3. As senior counsel for the respondent submits, the difficulty with this aspect of the appeal ground is that Mr Manser did not draw the will in accordance with his instructions. Further, the appellant bore the onus of proving on the balance of probabilities that the testator had testamentary capacity and knew the nature and effect of what he was doing when he signed the will. He could not have known the nature and effect of what he was doing when what he was signing did not accord with instructions he had given. There was no evidence that the testator knew and approved of the will in its final form. Mr Manser said he asked the testator if he had read and understood the will, but did not ask him if he appreciated the divergence between his 5 July instructions and the form of the will. Tamzin's affidavit in the testator family maintenance proceeding refers to Mr Manser discussing the testator's concerns, but it also does not deal with the divergence between the 5 July instructions and the final form of the will.
4. The appellant complains that in accepting Professor Ashby's evidence that the testator only possibly understood what he was signing, the primary judge overlooked the evidence of Dr Dunne. Dr Dunne, who saw the testator about a week before his death, was not able to offer any conclusive opinion as to whether the testator would have understood what he was signing.
5. This appeal ground discloses no appealable error in the sense discussed in House v The King.

1. The appellant also sought leave to add a new appeal ground 3A. That ground states:

"The primary judge's discretion miscarried because he proceeded on the erroneous findings of fact that:

(a) he had no cause to doubt the evidence of the respondent;

(b) Tamzin's stated belief that the will provided for '50/50' was sufficient justification for propounding the will and administering the estate for 9 years without challenging the validity of the grant."

1. The primary judge was entitled to make the challenged findings. He saw Tamzin give evidence. He gave reasons as to why he did not doubt that evidence. No error in the sense discussed in House v The King is revealed by the acceptance of that evidence. Similarly it was open to his Honour to find that Tamzin acted on the belief that the will provided for a "50/50" trust, and when it became apparent that such was not the case, took action to remedy the situation. This challenge to a factual finding which was open to his Honour also reveals no appealable error in the exercise of his discretion.

1. The appellant sought to add a further ground to his amended notice of appeal. The ground was called ground 1A. It provided:

"The primary judge erred in holding that Tamzin was not precluded from seeking revocation of the grant of probate by her conduct in jointly obtaining the grant and proceeding with the administration of the estate notwithstanding her knowledge of the facts and circumstances on which she relied for its revocation because of her belief that the trust was still 50-50."

1. Leave to add this ground of appeal was refused. The point that the respondent was barred from seeking revocation of the grant of probate by her conduct was not put at the trial before the primary judge. The primary judge cannot be said to have erred in failing to deal with a submission which was never put to him. The conduct of the respondent and the circumstances in which she applied for revocation are dealt with in other grounds of appeal against his Honour's exercise of discretion. It is inappropriate to allow a submission to be put on appeal to the effect that such a discretion should never have been exercised without his Honour having had the benefit of such a contention being put to him.

1. As none of the appeal grounds raise any appealable error in the judgment below, the appeal must be dismissed. The finding, which was open to his Honour, that there was a divergence between the instructions of the testator and the form of the will is fatal to the submission of the appellant that the rule in Parker v Felgate was engaged.