Jee v Goodman & Ors [2001] QSC 474

Diane Marie Wright solicitors for the first, second and third defendants

[1] The plaintiff, Thomas Jee, seeks a grant of probate in solemn form of the will of his mother, the late Fook Neng Jee, executed on 29 June 1995. The defendants are four of his five sisters. They claim that the will does not reflect the wishes of Mrs Jee; that at the time of its execution, she was not of sound mind, memory and understanding; and that she did not know and approve its contents because it was inadequately translated to her. They contend for the validity of a will executed by Mrs Jee on 10 December 1976.

The principles applicable to the determination of testamentary capacity and intention

[2] The onus of proving that a will is the intended document of a competent testator lies on the party propounding it[1]. The court must be satisfied that the testator was of sound mind, memory and understanding and knew of and approved of the contents of the will at the time of its execution. However, a duly executed will, on its face rational, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; and proof of such due execution may be regarded as the first step in establishing a prima facie case of capacity and intention[2].

[3] The classic statement of what is required to establish testamentary capacity is contained in the judgment of Cockburn CJ in Banks v Goodfellow[3]:

"It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections; pervert his sense of right; or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

An "insane delusion" may be regarded as one which is neither

"capable of rational explanation [nor] amenable to reason, [nor] ... explicable by reference to the subject person's education or culture"[4].

[4] Circumstances which may cause suspicion to attach to a will include the enfeeblement or illiteracy of the testator[5]. Where a testator gives instructions to his solicitor through a lay intermediary

"The court ought to be strictly satisfied that there is no ground for suspicion, and that the instructions given to the intermediary were unambiguous and clearly understood, faithfully reported by him and rightly apprehended by the solicitor, before making any presumption in favour of validity."[6]

[5] The defendants assert that the will of 29 June 1995 cannot reflect Mrs Jee's real intentions. She had, on the preceding day, signed a will which left nothing to her daughters-in-law and grandchildren, while the subject will purported to give to them all her money in bank accounts, call accounts, investments and cash, worth, at the time the will was made, some $800,000. In fact, she was not on good terms with some of her daughters-in-law and grandchildren, and it was unlikely that she would prefer them to her own children. If, indeed, she had intended to leave the daughters-in-law and grandchildren money, it was unlikely that she intended that benefit to extend to monies held in investment accounts. It is further contended that Mrs Jee did not know of and approve the contents of her will, because Mrs Cheong, the interpreter between Mrs Jee and her solicitor Mr Butts, was not a native speaker of Seeyup, the dialect spoken by Mrs Jee, and was unlikely to have rendered an adequate translation of the will's contents.

[6] As to the allegation that Mrs Jee was not of sound mind, memory and understanding, the defendants point to her age at the time the will was made (86 years), her poor physical health and what they assert was a decline into depression and ultimately dementia from 1991 onwards. She did not understand, they say, the true nature of her assets; in particular she did not appreciate that a block of units at McMahon's Point in Sydney was vested in a corporate trustee, and that plantations in New Guinea had passed into the ownership of family companies. She did not appreciate the moral claims upon her, particularly those of the fourth defendant, Diana Jee, who had cared for her for many years. Finally, in this regard, it is said that she was under a specific delusion that she had been tricked into signing away the New Guinea plantations.

[7] Mrs Jee was born in 1909, in Guangzhou in China. She had very little formal education, and had only a limited ability to read Chinese script. All her life she spoke Seeyup, a provincial dialect, and never learned to speak English. She was married in 1928 at the age of 19 but her husband, Jee Kok, soon returned to New Guinea where he had been working. In 1929, her first child, the plaintiff, was born, but it was not until 1939 that she was able, with her child, to join her husband in Kavieng in New Guinea. Between 1940 and 1955 they had another two sons (Dennis and Gerald) and five daughters (Catherine, Diana, Elizabeth, Jennifer and Theresa). Jee Kok died in 1971. In 1975, Mrs Jee moved to Australia. She died in Brisbane on 8 August 1998.

[8] After World War II, Mr and Mrs Jee ran a small trade store in New Guinea. They appear to have prospered. In 1960 Mrs Jee purchased a coconut plantation, Lemacott, in the Kavieng district. In 1968 that plantation was transferred to Lemacott Plantation Pty Ltd, a company of which she and her husband were directors and in which she and her husband each held a management share. In the following year another plantation in the same district, Fangelawa, was acquired in her husband's name. It similarly was transferred to a company, Fangelawa Plantation Pty Ltd, in 1967. Again, Mrs Jee and her husband were directors and held management shares. After Mr Jee's death in 1971, Catherine Jee (who on marriage became Catherine Graham) was appointed a director of both companies.

[9] In 1961, Mrs Jee acquired an interest in a Hong Kong property, in the form of an interest in the balance of a 75-year lease, running from 1898 with a right of renewal for a further 24 years. Documents produced to the court show that she and her husband also obtained commercial leases over two properties in Kavieng in 1966, one for 43 years and the other for 39 years. These were, presumably, over premises on which they conducted trading stores. One lease was held by Mrs Jee, the other by Mr and Mrs Jee as tenants in common. The latter was, in 1984, transferred to Jee Kok & Co. Pty Ltd.

[10] In 1975 Mrs Jee moved to Australia accompanied by her daughter, Diana. Initially they lived in Sydney. In 1967 land had been bought in Mrs Jee's name at McMahon's Point, and eight units constructed on it. In the early 1970's Mrs Jee purchased a block of six units at Randwick. In 1978 both properties were transferred to a corporate trustee, Sun Neng Nominees Pty Ltd, and a discretionary trust set up, the beneficiaries under which were Mrs Jee, her children and grandchildren.

[11] In 1971 Mrs Jee had bought vacant blocks of land in Queensland at Capalaba, Burpengary and Karalee. In about 1977 she moved to Brisbane to live in a residence she had bought at Robertson. Her daughter Diana joined her after a short time. It was contemplated at one stage that a house might be built on the land at Capalaba as Diana's residence, but that did not occur. Diana Jee explained that she felt an obligation to stay with her mother and look after her in fulfilment of a promise to her late father.

[12] In 1983 Mrs Jee decided to give control of Fangelawa Plantation Pty Ltd to her son Gerald. She wrote to him, through the medium of Diana, on 7 November 1983 in these terms:

"I would like you to take over and run the whole company and that is to be a director as well, for you and your children. I do not want anybody else in it, I worked hard for it and so did dad and I always wanted to pass it back to my sons and for it always to remain in the Jee family name.

I would like you to go to Rabaul and fix it up with your accountants exactly the way I want it, do not twist it around to something else as I will find out if you have and will I be angry then.

In the meantime please write me a letter to confirm that it will be run by yourself and also that the company will remain in the Jee name."

A second letter, dated 24 November 1993, returns the necessary forms signed by Mrs Jee and gives some inkling of the motivation for the management change; it urges Gerald Jee to make "sure that I am not involved in any more of this tax business".

[13] The transfer of control in the case of Fangelawa Plantation Pty Ltd seems to have been effected by the allotting of 40 management shares to Gerald Jee and 10 management shares to Catherine Graham and by a transfer of Mrs Jee's management share to Gerald Jee. The Lemacott search, however, shows Mrs Jee retaining the two management shares.

[14] In 1984 the Fangelawa plantation was mortgaged to the Westpac Bank without, it seems clear on the evidence, the knowledge of Mrs Jee. In 1987 that mortgage was discharged and a further mortgage to the Papua New Guinea Banking Corporation put in its place. In 1989 the Lemacott plantation was mortgaged, again to the Papua New Guinea Banking Corporation. In both instances, it seems, the properties were again encumbered without the knowledge of Mrs Jee.

[15] According to Mrs Graham, the mortgages were given to obtain finance for a logging and road maintenance enterprise carried on by her brother Gerald in his management role for Fangelawa Plantation Pty Ltd. By 1992, that business activity not having been profitable, there were threats of foreclosure. It seems that it was in this year, when the companies were in difficulties in servicing the mortgage loans, that Mrs Jee became aware of the existences of the mortgages. Her reaction when she learned of the situation was one of distress and disbelief. She expressed incomprehension as to how the plantations could have been mortgaged without her signature and how the deeds to the plantations, which she believed to be in safety deposit on her account at a bank in Papua New Guinea, could have been obtained without her signature.

[16] At Mrs Jee's request, her son-in-law Graham Goodman (the husband of Theresa, and a former bank manager) wrote to solicitors in Papua New Guinea asking them to make inquiries as to who was the registered proprietor of Fangelawa Plantation, when it had become mortgaged, and who the directors and shareholders of Fangelawa Plantation Pty Ltd were. By letter of 28 August 1992, Mr and Mrs Goodman told Mrs Jee what they had learned of the history of the matter, including her letters having authorised Gerald to take over the company, and the mortgages given to Westpac and the Papua New Guinea Banking Corporation. They advised Mrs Jee of Catherine Graham's negotiations with the Papua New Guinea Banking Corporation, under which money was to be raised by a company which would have Catherine Graham and her nephew (Gerald's son, Darryl) as directors. The letter ended by noting that it remained to be established how the deeds had been obtained from safe custody, whether control of Fangelawa Plantation Pty Ltd had been obtained on the strength of Mrs Jee's l983 letters, and some other matters.

[17] The following year, the properties were transferred from the companies, initially to Kora No. 49 Pty Ltd, a company of which Catherine Graham and Darryl Jee were directors. Those transfers were cancelled when it was discovered that the freehold properties would revert to leasehold if they were not held by Papua New Guinea citizens. The transfers instead were made to Catherine Graham and Darryl Jee in person, and new mortgage arrangements were entered. According to Mrs Graham, she told Mrs Jee of the transfers and the reasons for them.

[18] In mid-1995 Mrs Jee, in the course of attending on Mr Butts to make her will, raised the issue of the plantations. That matter will be discussed further in the context of the making of the wills.

[19] In 1996, Mrs Jee received an unsigned declaration of trust from Mrs Graham in respect of the two properties, which it seems (from Mrs Goodman's evidence) did not appease her; she wanted to retrieve the title deeds to the plantations. At her behest, Mr Goodman once more instructed solicitors, Johnston Brien, to make inquiries in relation to the Fangelawa and Lemacott plantations. The letter written by the solicitors, according to Theresa Goodman, had gone through a number of drafts, which were, with the final version, translated, to Mrs Jee. Addressed to Catherine Graham and Gerald Jee, the letter asserted that Mrs Jee had signed a document in 1975, in reliance on information that it was needed to protect the plantations against the risk of "native claims or take-over", but it had in fact transferred control of the plantations to Catherine and Gerald. Reference was made to the unsigned declaration of trust and an associated memorandum of understanding dealing with management of the properties by Catherine Graham and Darryl Jee. The letter went on to say that Mrs Jee wanted the mortgages discharged and the deeds of both properties returned to her within four months.

[20] It appears that in early 1998 the title deeds were returned to Mrs Jee with a declaration of trust signed by Catherine Graham and Darryl Jee. Mr Butts, on Mrs Jee's behalf, made inquiries as to the effect of transfer of title to her and was advised that only citizens could hold freehold. It does not appear that any further steps were taken in the matter.

[21] In addition to her interests in real property, Mrs Jee held funds in numerous bank accounts with different institutions. In the mid-1980's for example, she advised her son Thomas, that she had opened accounts for each of his four children, although at the time of her death no such accounts were extant. In 1992, at her request, Mr Goodman collated her banking records for her, and suggested amalgamation of some accounts. The total amount held exceeded $800,000. (At the time Mrs Jee made the contested will in 1995, her funds in the various accounts stood at about $842,000). In 1996 he undertook a similar process and prepared a schedule of term deposit and other accounts in Mrs Jee's name. On this occasion the sums held amounted to approximately $940,000. At her death Mrs Jee held some $1.4 million in various accounts. There was, in addition, a loan account recorded as standing to her credit with Sun Neng Nominees Pty Ltd.

[22] Mr Goodman's understanding was that rent from Mrs Jee's Hong Kong property and monies forwarded by Mrs Graham from the Papua New Guinea store were paid into Mrs Jee's bank accounts. The rents from the Sydney units were paid into a cheque account styled Sun Neng Nominees Pty Ltd, but were from time to time transferred into Mrs Jee's account. It is quite possible, therefore, that some of the amounts shown as held in personal accounts by Mrs Jee were in fact trust monies; but that is not, for present purposes, of any consequence.

[23] As has already been mentioned, Mrs Jee made a will in 1976, leaving her property in equal shares to her eight children. Her son Thomas was unaware of that will and was anxious that his mother not die intestate. Accordingly, on a visit to Australia in 1995, he contacted Mr Butts' office with a view to arranging an appointment for his mother to draw a will. In the event, it was Diana Jee who made the final arrangements for Mrs Jee to attend the solicitor's office. Mrs Jee was anxious not to have an interpreter known to her, because of her concern to keep the contents of her will private. (The evidence consistently showed a preference on her part to keep her family and business affairs to herself, even to the exclusion of those closest to her.) In the event, Mrs Frances Cheong, the mother of a doctor whom Mrs Jee had consulted in the past, took that role.

[24] Mrs Cheong had died prior to the trial, but a statement by her was tendered. Mrs Cheong was a native Cantonese speaker. She had spoken Seeyup with her grandmother, although she had not in recent years used the dialect. According to her statement she accompanied Mrs Jee to the solicitor's office, speaking on the way to her in Seeyup about everyday matters. Her statement contains the sentence,

"I do not speak perfect Seeyup but I understood the gist of what she was trying to tell me".

She did not remember the precise content of the conversations she had with Mrs Jee, although she could remember Mrs Jee had wanted her money to go to her grandchildren. Mrs Cheong's statement contained some errors as to the number of children Mrs Jee had and where they resided. It was made in November 1998, some three years and five months after the events. I am satisfied that such errors of detail are attributable to faults in Mrs Cheong's recollection (unsurprising after the lapse of time and the inconsequence to her of the information) rather than any failure in Mrs Jee's memory or capacity to communicate.

[25] According to Mr Geoffrey Butts, the solicitor involved, the interpreter and Mrs Jee appeared to speak freely to each other and there was no sign of any difficulty in communication. Mrs Jee attended his office on three occasions. On the first, on 14 June 1995, she was accompanied by Diana Jee. On that occasion, Diana gave him a list of Mrs Jee's assets which showed the Sydney blocks of units, the Robertson house, the three blocks of land, the Hong Kong apartment, the store premises in New Guinea and the two plantations. She conveyed to him a concern, which to him appeared to be shared by herself and her mother, that Mrs Graham had somehow acquired the plantations without Mrs Jee's knowledge or consent. On Mr Butts' understanding that concern was a prime motivation in Mrs Jee's making her will. Diana Jee, however, was adamant that she did nothing on that occasion but relay what her mother had to say about the plantations, and did not express anything of her own feelings. All her dealings with the solicitor, she said, were at the direction of her mother; she did nothing on her own initiative in this respect.

[26] On 26 June 1995 Mrs Jee returned to Mr Butts' office accompanied by the interpreter, Mrs Cheong. On that occasion Mrs Jee conveyed her intention to leave her property divided amongst her male and female children in a 2:1 ratio in favour of the former. There was discussion between Mr Butts and Mrs Jee about the plantations. Mrs Jee told him, through the interpreter, that a solicitor's inquiries had revealed that the plantations were registered in Catherine Graham's name. Nonetheless, she said that she wanted to deal with the properties by will, and that she wanted the plantations and her residence to be held by her heirs for 50 years. He raised the issue of how maintenance of the properties would be funded and was informed that Mrs Jee held a substantial amount in bank accounts, which would suffice for that purpose. As well as counselling against the course of trying to compel the beneficiaries to retain the properties, Mr Butts advised Mrs Jee that if the New Guinea properties were registered in another person's name they could not be left by her will.

[27] On that day Mrs Jee also advised Mr Butts, through the interpreter, that she wanted the company, Sun Neng Nominees Pty Ltd, to be restructured so as to have 11 shares. This was consistent with Mrs Jee's already-mentioned desire to leave her estate in the 2:1 ratio; if 11 shares were created each of her sons could hold two, leaving one for each of her daughters. According to Mr Butts' notes of his interview with Mrs Jee on 26 June 1995, she gave him to understand that there may be a trust with a corporate trustee; solicitors in Sydney had "set something up". The interview was left on the basis that Diana Jee would obtain more information in relation to the company, Sun Neng Nominees Pty Ltd, from Mrs Jee's accountants.

[28] On 28 June 1995 Mrs Jee returned to Mr Butts' office accompanied by the interpreter, Mrs Cheong, and Diana. He was furnished with handwritten notes of the shareholdings and directorships relevant to Fangelawa Plantation Pty Ltd and Lemacott Plantation Pty Ltd. In the interim, Mr Butts had obtained a company search of Sun Neng Nominees Pty Ltd and established that it was a trustee. He explained to Mrs Jee that it was the terms of the trust deed and the beneficial interests it created that determined how the company's income was distributed, rather than the shareholding in the company. She instructed him that she wished to leave her share in the company to her son, Thomas. Mrs Jee was intent, on that day, on having a short will signed on the basis that it could be revised when further documents were available. Accordingly, Mr Butts drew a will by which Mrs Jee left the whole of her estate to her children divided in the 2:1 ratio in favour of the sons.

[29] Mr Butts interviewed Mrs Jee again later that day, with Mrs Cheong interpreting. At this interview Mrs Jee conveyed to him that she wanted the plantations left to her sons, a third interest to each; the balance of her property left, divided in 11 parts; her share in Sun Neng Nominees left to Thomas; and her cash left to her grandchildren and her daughters-in-law. These provisions were to be included in a new will, which she would sign later. Mrs Cheong interpreted the short will to Mrs Jee. She expressed herself, through Mrs Cheong, content with it, and signed it. On that same day Mr Butts explained to Mrs Jee that the plantations could not be left as part of her estate since they were not registered in her name, and that it would be necessary to sue her daughter if she wished to recover the properties. Mrs Jee said that she would not do so because of the shame it would bring to her family. When Mrs Jee accepted that the plantations should not be retained for 50 years, she instructed Mr Butts that the monies that she held in bank accounts were to be given to her grandchildren and daughters-in-law, since they were no longer required to maintain the plantations. She was not, however, prepared at this stage to remove all reference to the plantations from the will.

[30] On the following day, 29 June 1995, Mr Butts drew another, longer, will in accordance with his instructions from the preceding day. The will as drawn left the share in Sun Neng Nominees Pty Ltd to Thomas Jee; left all money in "bank accounts deposited on call invested for a period of time or in cash about [Mrs Jee's] person" to her daughters-in-law and grandchildren; left the plantations in equal shares to her three sons; and left the residue in 11 parts on the 2:1 ratio as between sons and daughters. Mrs Jee returned on that day with Mrs Cheong and was given the will to consider. During his discussions with Mrs Cheong this day, Mr Butts convinced her that she could not deal with the plantations in her will since they were not registered in her name. The clause relating to the plantations was, accordingly, deleted. The will was translated to Mrs Jee by Mrs Cheong in the presence of Mr Butts, and his secretary, Lisa White, and all three witnessed her signature upon it. T here was no suggestion that it was other than duly executed.

[31] Because of the remaining concern about the plantations, Mr Butts prepared for Mrs Jee a statutory declaration which, he considered, would assist her executor should it be decided to bring proceedings for their recovery. The statutory declaration contains some inaccuracies. Firstly, it refers to Mr Jee as having died in 1974, not 1971. Having said that Mrs Jee and her husband owned the two plantations, one registered in his name and one in hers, it goes on to assert that upon the death of Mrs Jee's husband his interest in the Fangelawa plantation passed to her. That, of course, was not so. It had already been registered in a company name. The statutory declaration continues:

"I was later informed and verily believe that both of the plantations were transferred out of my name. This was done without my knowledge or consent."

It seems clear both from the terms of the declaration and Mr Butts' notes of the conversation that Mrs Jee omitted any reference to the corporate ownership of the two plantations. Mr Butts said, however, that Mrs Jee did not suggest that she had been tricked into signing anything. Rather the situation communicated to him through Diana, was that she had not signed anything which would have effected a transfer of the plantations to Catherine Graham, an assertion which, so far as it went, was factually correct.

[32] The declaration concludes by expressing Mrs Jee's reluctance to sue her children and her wish that her family might recover the title to the plantations on behalf of her estate. The statutory declaration was translated to Mrs Jee by Mrs Cheong and then declared and signed by her with Mr Butts as witness.

[33] Under cross-examination, Mr Butts said that although he was aware that Mrs Jee has substantial funds in her bank accounts, he did not know how much. Nor was he aware that there was a loan account of some $420,000 in Mrs Jee's favour with the corporate trustee, but he considered that unremarkable.

[34] Mrs Jee was 86 at the time she made her will and was in poor physical health. She had been diabetic since before she left Papua New Guinea, becoming insulin dependent at some time in the 1980's. Those matters require examination, but do not of themselves establish want of capacity. [7] A considerable amount of evidence was adduced as to the state of her mental health, both in the form of observations by those around her in the years before and after her will was made, and as retrospective conclusion drawn from later material. The primary evidence as to the state of Mrs Jee's health in the last years of her life emerged from the evidence of friends, family and professionals who dealt with her; a geriatric assessment, including the administering of a mental status questionnaire, undertaken at Queen Elizabeth II hospital as part of an aged care assessment in July and August 1997; and a tape recording made by Mrs Jee for her children, probably in 1997 or 1998. Three specialists in geriatric medicine gave expert opinion evidence as to capacity on the basis of such information, as it stood prior to trial. I will set out the expert evidence before turning to consider its basis in fact.

[35] Professor Keith Hirschfeld, called for the plaintiff, gave his opinion that Mrs Jee possessed testamentary capacity to make a will in June 1995, and knew and approved the contents of the will made then. Professor Hirschfeld distinguished between vascular multi-infarct dementia, which was characteristically manifested by a step-wise deterioration, and dementia of the Alzheimer's type, which typically involved a steady progression of impairment. Diabetes was more likely to produce the former. There was nothing in what he had seen which would suggest progressive vascular deterioration, which was uncommon; and there was no evidence of multi-infarct dementia. The suggestion of a transient ischaemic attack contained in the medical notes was inconclusive.

[36] In considering whether forgetfulness was any indicator of dementia, Professor Hirschfeld said, it was necessary to distinguish between minor tendencies to losing things or forgetting medication, which were apt to become more pronounced in the elderly, and significant difficulties such as loss of the ability to find one's way about or to remember where one lived. Loss of long-term memory was probably more important to questions of testamentary capacity than short-term memory impairment.

[37] Professor Hirschfeld acknowledged that depression in a very severe form could affect testamentary capacity. He accepted that an irrational and incorrigible belief by Mrs Jee that her property had been stolen or mortgaged by her children would cast doubt on her capacity. The radical alteration of a will over successive days would put him on inquiry but would not of itself cause him to doubt capacity. What Mrs Jee had said in her tape recording was disjointed and confused but did not necessarily go beyond self induced anxiety. However, he agreed with the statement of Dr Leong (an expert called for the defendants) that the tapes were "disjointed, disorganised and repetitive and she [Mrs Jee] was confused about the chronological order of her children." If that were corroborated (presumably as to the last point) the tapes were suggestive of a lack of testamentary capacity at the time of their making. Professor Hirschfeld accepted Mr Newton's proposition that if the tape demonstrated that she did not have a grasp at all of what her will provided, that would be consistent with confusion and possibly dementia. He did not think the aged team care assessment undertaken at Queen Elizabeth II Hospital was of much weight on the issue. The mental status questionnaire was not a diagnostic tool, merely a bedside scan for orientation and memory.

[38] Dr Glenise Berry, called by the first, second and third defendants, identified the relevant form of vascular dementia as due to progressive ischaemic small vessel disease rather than a series of infarcts. There was no suggestion that Mrs Jee had had the latter, but it was possible that she had suffered from the former as a result of her diabetes, hypertension, and hyperlipidaemia. There was no specific evidence in the medical information that she had a dementing illness. It was, rather, Dr Berry said, a retrospective possibility arising from the degree of cognitive impairment demonstrated in the aged care assessment service documentation, which was consistent with a moderate to severe degree of dementia. If Mrs Jee were an astute businesswoman it would be expected that she would be capable of providing the name of the Prime Minister (one of the questions in the mental status questionnaire) regardless of her lack of English. A score of 3 out of 10 on a mental status questionnaire in the absence of acute illness would indicate an incapacity to conduct even simple business affairs, and a need for management of the individual's affairs by others. It was not unusual for close relatives not to recognise or report dementia.

[39] The defendants' statements indicating forgetfulness, paranoid thinking and functional deterioration on Mrs Jee's part going back to 1992 suggested that the symptoms might be indicative of dementia as early as that point in time, and supported the thesis of a slowly progressive vascular dementia. From this Dr Berry concluded it was likely that the deceased was showing signs of early dementia when she made her wills in June 1995. Such dementia would explain the differences between the two wills made in June 1995, and would also explain what Dr Berry perceived as cognitive errors in Mrs Jee's understanding of the nature of her assets; for example, the situation in relation to the ownership of the plantations and the circumstances in which her Sydney properties were held. The statutory declaration made by Mrs Jee indicated a forgetting of the circumstances in relation to the plantations' control being handed to Gerald, suggesting a change in cognitive awareness. In Dr Berry's view, Mrs Jee's failure to recall the circumstances in relation to the plantations despite repeated reminders, and her inability to be reassured in relation to them were consistent with a change in memory function common in dementia sufferers.

[40] The tape recording was capable of providing evidence of poor judgment and irrational thinking in its failure to document the giving of money to the grandchildren and daughters-in-law in the will. It also indicated paranoid and derogatory thinking towards Mrs Jee's children consistent with dementia. Working back from these features, it was probable that Mrs Jee did not have testamentary capacity at the time her will was made.

[41] Dr Berry conceded that the significance of Mrs Jee's language towards her children in the tape would depend on whether it indicated a change in attitude towards her children. "If she always had a flavour of rather negative and derogatory and persecutory and a blameful, resentful way of managing or talking to her children, then that would not be out of keeping". The tape might also be consistent with the resentment and caprice of a matriarch perceiving a lack of proper attention. The mental status questionnaire administered to Mrs Jee suffered from a cultural bias in its assumption, in asking questions as to dates, of a familiarity with the Western calendar. If that assumption were not sound, the results would be of little assistance. Mrs Jee's change to her will to leave funds to her grandchildren and daughters-in-law, if based on a recognition that the money would not be needed to keep up properties, would be suggestive of testamentary capacity rather than the contrary.

[42] Dr Michael Leong gave evidence for the fourth defendant. De Leong's opinion was that although Mrs Jee appeared to have a reasonable understanding of the making and effect of her will, there was a strong possibility that she was not at the time of its execution fully aware of the extent of the property to be disposed of by it. She did not, he said, appear to appreciate that the plantations were no longer in her name and that the Sydney units were trust property. The difference between the two wills made on 28 June and 29 June, the latter of which gave the greater benefit to the daughters-in-law and grandchildren, raised a strong possibility that she did not have a full awareness of the claims upon her.

[43] The tape recording made by the deceased in 1997 or 1998 did not make any mention of the gifts to the children and daughters- in-law. It was disjointed and repetitive and demonstrated confusion as to the chronological order of Mrs Jee's children. She appeared to have been in a poor state of physical and mental health when the tapes were made, referring to her difficulty breathing, her ill-treatment by her children and her unhappiness, and the little amount of money she had left. Those features raised the possibility that she was impaired in her mental and intellectual abilities, and suffering from depression and paranoia affecting her judgment and understanding of the effect and contents of the will.

[44] Dr Leong considered that the mental status examination quotient of only 3 out of 10 indicated that Mrs Jee was in a severe state of dementia as at September 1997. Given her risk factors it was highly probable that that dementia had been progressively causing deterioration over a period of three to five years prior. He pointed to the evidence of the defendants' witnesses, including a diabetic diary kept by Diana Jee with instances reported of forgetting medication, burning saucepans and losing things, as evidence supportive of progressive deterioration. It was, he said, highly possible that Mrs Jee was already suffering from significant cognitive impairment at the time of signing her will. Dr Leong also expressed a concern, founded apparently on his own background as a Cantonese speaker rather than any medical expertise, as to whether Mrs Jee was provided with an accurate translation by the interpreter.

[45] Two sharply different pictures of Mrs Jee's health were painted by her family and friends. On the one hand, it was said by the defendants that from the early 1990's she had become forgetful, confused and depressed, and was in profound physical decline, while the plaintiff and his witnesses spoke of an alert, still active woman of considerable business acumen. I doubt that either picture is entirely accurate.

[46] Thomas Jee, the plaintiff, and the testatrix's eldest son, was an American citizen living in San Francisco. He visited his mother annually, except in 1995. He maintained telephone contact with her with a regularity varying between weekly and monthly calls. He maintained that in the course of those contacts, which included visits in 1996 and 1997, he observed no decline in his mother's mental health and little change in her physical health other than a difficulty with walking. My impression was that Mr Jee had a rather idealised memory of his mother and was reluctant to acknowledge any decline in her capacities.

[47] Denis Jee, Mrs Jee's second son was somewhat more realistic, acknowledging that his mother's diabetes had caused her to slow down and tire in her later years. He said that his mother was unhappy and angry but was unable to say whether she became more forgetful with age. He gave evidence however, of conversations around the time her will was made. When she came back from the solicitor's office, he said, she was pleased and happy and told him that her will had been finalised. A couple of days later he asked her who was present when she signed the will and she informed him that those present were herself, the interpreter, Geoffrey Butts and his secretary. On another occasion, some three or four months before his mother's death, he asked her whether she had received the title deeds for the plantation yet and she responded that she had received a paper signed by his brother and sister specifying that she still owned the title.

[48] Mr Jee said that his mother was a very private person and would not, unless it was absolutely necessary, discuss matters involving one of her children with another of them. She had not consulted him about developments with the plantations. His mother was made stressed and angry by the way her children treated her - he included himself amongst those responsible - and often said harsh things about the way they behaved. In her last years she believed her plantations had been taken from her and became unhappy.

[49] Dennis Jee's wife, Susan Jee, speaks Cantonese. She found no difficulty in communicating with Mrs Jee in Cantonese, or in understanding Mrs Jee's Seeyup. As the only member of the family who understood Chinese script she would, each year, interpret a letter Mrs Jee received from an agent who managed her property in Hong Kong, and would write Mrs Jee's response to the agent about how her money should be distributed. In 1998 she saw Mrs Jee during Chinese New Year and on her birthday. When she spoke to Mrs Jee she was able to answer her questions and there was no time at which she seemed unclear about what was going on.

[50] Susan Jee acknowledged that there had been some conflict between her mother-in-law and herself in the past in New Guinea, and that her daughter Davina did not get on with Mrs Jee; but she said both she and her daughter always received the gifts which Mrs Jee was in the habit of giving out on her birthday, in the form of red packets of money.

[51] Catherine Graham, Mrs Jee's eldest daughter, continued to live in New Guinea. She said that, as eldest daughter, her mother had always held her responsible for the actions of her younger siblings. To her had fallen the burden of explaining to her mother the circumstances in which the plantations had been mortgaged. She said that she had reminded her mother of the arrangements she had made in 1983 to put Gerald in charge of the company but her mother kept questioning her about the encumbering of the properties. She was unable to say over which years those discussions occurred, but she was not drawn into them until she received the letter from Johnston Brien (April 1996). Her mother accepted her explanation at some time prior to her death.

[52] Mrs Graham said she generally visited her mother twice a year for periods of two to three weeks. Over the last decade of her life she had not noticed a decline in Mrs Jee's physical health, other than that she complained about not being able to move around as much and did not take the physical role in gardening that she had formerly. Mrs Jee had always liked to sit in front of the television in her chair. Mrs Graham did not accept that Mrs Jee had suffered from depression requiring medical attention in the past 10 years of her life. In July 1998, Mrs Graham had visited her mother. They had discussed the activities of Mrs Graham's children, but had also talked about her mother's loneliness, and her perception that her children did not have time for her. There was also some discussion then about the planning of her mother's funeral.

[53] Two of Mrs Graham's daughters also gave evidence. Geraldine Leong had returned from Papua New Guinea to live in Brisbane in 1995, and had seen her grandmother regularly from that time. She did not see any signs of mental deterioration. Her grandmother did not seem to suffer from forgetfulness or become repetitive. According to Ms Leong, Mrs Jee watched news and current affairs on television, and appeared to follow what was going on. She would, she thought, have no difficulty saying who the current prime minister was. Her grandmother would give her money to shop for her, and seemed to know how much was needed for her purchases. Ms Leong described her grandmother as "a very clever and astute business person" but it seems that that conclusion was based on her knowledge that her grandmother owned a number of properties. In her later years, Ms Leong said, Diana Jee did Mrs Jee's banking for her. e only major physical problem she observed in her grandmother was that she had painful legs; but she had always had that difficulty.

[54] Laine Graham, Ms Leong's sister, was a pharmacist who had purchased her own business at the Gold Coast in 1995. From that time she saw her grandmother once or twice a month, less frequently than she had previously. Mrs Jee took an interest in her purchase of the business, inquiring about the terms of her loan and her progress with it over the years 1996 and 1997. Her knowledge of her grandmother's business affairs was limited to reading to her grandmother the details of interest accrued on her accounts when Mrs Jee received correspondence from her bank about her term deposits, and accompanying her to the bank to roll the deposits over. Her grandmother liked to watch television, particularly the soap opera "Days of Our Lives" and although unable to understand English, could usually relay the basics of the plot. In 1996 and 1997, her grandmother more often reminisced to her about the past, telling her that she wanted her to pass her stories on to her own children. Mrs Jee sometimes complained of her family members not telephoning her when they had in fact done so; Ms Graham perceived that behaviour not as exhibiting forgetfulness but rather as her grandmother begrudging praise when a family member was not sufficiently attentive.

[55] Ms Graham's former boyfriend, Peter Sa, was also called. He too had spoken of Mrs Jee's "excellent business acumen" but again, it seemed, that was based upon his impression that Mrs Jee owned a lot of property. He had been in regular contact with Mrs Jee through Laine Graham from 1985 to late 1994, visiting weekly. Over that time he had not observed any sign of Mrs Jee slowing down physically. Mrs Jee often engaged him in conversation about his parents' taxi business, in which she took an interest. When he last saw her in August 1995, she appeared not to have changed.

[56] Betty Seeto was a friend of Mrs Jee's who paid her weekly visits, staying for about 3 ½ hours each time. She had been making those visits for about 10 years when Mrs Jee died. She spoke Cantonese to Mrs Jee and the latter spoke Seeyup to her. Mrs Jee did not communicate her personal business, and the only time that she appeared distressed in front of Mrs Seeto was when she was concerned about Diana, who had been admitted to hospital. About three years before Mrs Jee died she and Mrs Seeto had a conversation about how Mrs Jee would leave her property. Mrs Seeto had suggested that she should divide her assets evenly amongst her children so that they would not squabble; to which Mrs Jee responded, "I don't owe my children anything. I brought them up. When I go I'll give my assets as I see fit." Mrs Jee did not, as a rule, discuss her children's conduct or any disappointments she may have had with them. Mrs Seeto said that Mrs Jee watched "Days of Our Lives" and would sometimes fall asleep in front of the television. Diana often explained the program to her. Mrs Seeto noticed a physical decline in Mrs Jee, but she did not see any change in her mental state. Mrs Jee did not become forgetful, and although she liked to reminisce, she did not become repetitive.

[57] Father Albert Chan, the Chaplain to the Chinese Catholic Community in Brisbane, visited Mrs Jee three or four times per year from 1985. Over the last few years of her life he noticed a decrease in her mobility. He was able to speak Seeyup with her. When he visited her at home she seemed mentally fit and active and carried on a normal conversation with him. They would discuss his pastoral work, and she would talk about how hard she had worked in New Guinea, but she did not repeat herself. She often watched television during his visits to her home and seemed to have a grasp of what was occurring. In contrast, when he visited her on two occasions when she was hospitalised at the Wesley Hospital she was extremely sick and seemed tired and sad. While Father Chan accepted that in the last 8 or 10 years of her life Mrs Jee was growing older and weaker, he maintained that she remained alert with a good memory. He conceded, however, that their conversations were at a very superficial level.

[58] Jones Fong was the nephew of Kok Jee, and had known Mrs Jee since she joined her husband in New Guinea in 1939. He had moved to Brisbane shortly before her arrival there. He and his wife visited Mrs Jee at least a month until her death. Although in his statement he described Mrs Jee as "excellent at business", he said in evidence that he never discussed her business affairs with her, and it was clear that, once again, this was an impression based on her apparent wealth. Mrs Jee in her later years spent most of her time in her chair in front of the television, sometimes asleep. She had no interest in current affairs, he said, but loved Days of Our Lives, which she discussed with his wife, also an enthusiast. Notwithstanding her increasing immobility, she remained, to his observation, mentally alert: "as far as I know her speech, her talking, her thinking still the same."

[59] The evidence of Mr Woo, Mrs Jee's accountant, was more illuminating as to her business capacities. Mrs Jee had, he said, understood cash in the bank as an investment, but was unresponsive to suggestions by him of other forms of investment. He prepared her tax return, and gave advice, which she adopted, as to distributions from the trust to beneficiaries in amounts designed to minimise tax liability. Mr Woo was originally from Singapore and spoke Cantonese, but had difficulty understanding Mrs Jee's Seeyup. He had communicated with her through a staff member who spoke pidgin. Mr Woo had noticed a gradual deterioration in Mrs Jee, both physically and mentally but that deterioration was, he said, more noticeable in the last two years he visited her (probably 1997 and 1998).

[60] Mrs Jee's remaining daughters and Graham Goodman, the husband of Theresa, gave evidence of a longer-term decline in Mrs Jee's physical and mental health.

[61] In her statement, Diana Jee, the fourth defendant, said that her mother had become repetitive and forgetful from the late 1980's. She gave a number of examples of her mother's memory problems, such as losing items and accusing family members of taking them; forgetting what stage she had reached in food preparation; and, in conversation, becoming forgetful and repeating herself. A diary kept by Ms Jee in relation to her mother's diabetes for the period 4 April 1994 to 27 March 1995 was tendered. In the "remarks" column, she had noted eight occasions when Mrs Jee either forgot how many tablets she had taken or could not remember taking her medication at all; six occasions when Mrs Jee had burnt saucepans or what she was cooking through forgetfulness; one occasion when she was unable to remember where she left her keys; another when she lost pillow cases and could not recall where she had put them; another when she lost some linen and accused Diana of having taken it; and a couple of occasions on which she could not remember whether she had had lunch. That sort of forgetfulness was, according to Ms Jee's statement, evident from about 1994. Ms Jee said that her mother sometimes lost money and was abusive, accusing her of taking it. From about 1988, she had taking to reminiscing about the past, particularly her youth in China, and became repetitive. She was never satisfied with what her daughters did for her, complaining about her, and about her sister Jennifer, who, she said, was no help. She had regarded Catherine as a good daughter until she formed the view that she had stolen the plantations.

[62] According to Ms Jee, her mother's mental faculties had declined from the late 1980's or early `90's, and there was not much difference between her mental health at the time of the Queen Elizabeth II Hospital assessment in August 1997 as compared with mid 1995 when her will was made. She had suffered depression from 1992 when she found that the plantations had been mortgaged. In January 1997 she had been in so much distress from facial pain requiring surgery that she had asked Ms Jee to help her die.

[63] Ms Jee said that her mother had suffered from urinary incontinence dating back to her years in New Guinea, and faecal incontinence from the time a Sydney specialist placed her on a diabetes medication called Diabex. By the time of the aged care assessment in 1997, Mrs Jee's incontinence had become a major problem because she did not always recall that she had soiled herself, and would not co-operate with the necessary cleaning. Mrs Jee's physical capacities had, Diana felt, declined from 1992 when the concerns about the New Guinea plantations arose.

[64] Ms Jee said she had told Dr Stocks, the Brisbane specialist treating her mother for diabetes, about her mother's diarrhoea in 1990 but she had not mentioned urinary incontinence because she was not asked about it. She had not raised any question as to her mother's mental capacity when she sought to make her will in June 1995, because nobody had asked her about the issue, and she had been unwilling to acknowledge her mother's dementia to the aged care assessment team in 1997.

[65] Theresa Goodman was the youngest of Mrs Jee's children. She lived in southern New South Wales with her husband, Graham Goodman, for most of the 1990's, but they usually spent their annual holidays visiting Mrs Jee. In late 1996 they retired to Brisbane. On Mrs Goodman's observation, Mrs Jee deteriorated significantly over the period between 1991 and 1994. Her mother was forgetful and would lose items such as bankbooks and bank records. From time to time she would accuse Mrs Goodman, wrongly, of not having telephoned her. On some occasions she would ask Mrs Goodman to obtain information from the bank and forget that she had done so. Sometimes she would receive gifts of new clothes and later forget where she had put them. Mrs Jee's room, it seems, was something of a storehouse of belongings. Graham Goodman noticed over the early to mid-1990's that Mrs Jee was spending less time in the garden and appeared to become increasingly frail. She left the house only to visit her doctors.

[66] Mrs Goodman said that her mother believed she owned the plantations. She had told the Goodmans that she could not understand how Mrs Graham or Gerald Jee had got the deeds from where they were held in safe custody at the bank in her name without her signature. She considered Gerald had betrayed her trust in mortgaging the properties. Having seen, in 1996, the unsigned declaration of trust and memorandum of understanding sent by Darryl Jee and Mrs Graham, Mrs Goodman explained to her mother that the plantations were still hers, but Mrs Jee still wanted the solicitors' letter written. She always wanted the deeds back, and felt the plantations had been stolen from her.

[67] Jennifer Moran, the third defendant, lived on the Gold Coast and from 1992 began spending an increasing number of days of her week in Brisbane to assist her sister, Diana. Her impression was that from 1992 when her mother discovered that the plantations had been mortgaged she became depressed and lost interest in life. At some point when she discussed with Mrs Jee her letters written to Gerald in 1983, her mother denied giving control of the plantations to Gerald, saying words to the effect that she would not do such a thing when he was only one of her eight children. She talked frequently of getting the deeds back and of the possibility of suing the bank for releasing them. Her mother in conversation with her a few weeks after having made her will had expressed her annoyance that Mr Butts had not allowed her to include the plantations in it; Diana Jee, who was also present, explained to Ms Moran that this was because the plantations were not in Mrs Jee's name. Ms Moran telephoned Mr Butts to inform him that her mother should be allowed to leave the plantations by will if she were able to get the title deeds back.

[68] Ms Moran said that Mrs Jee constantly lost money, and items such as slippers. Occasionally she would forget how to sign the English version of her name and would have to be shown again, and practise the signature before signing a cheque. She had endeavoured to teach her mother how to use a tape recorder. From time to time her mother would ask her to teach her again because she had forgotten.

[69] Elizabeth Fong, the second defendant, lived in Brisbane. She too said that her mother was extremely distressed when she found the plantations had been mortgaged. She maintained that Gerald and Catherine had stolen them from her. After that event she seemed to have lost her peace of mind and her trust in her children. From that time she became noticeably more forgetful, repeating requests for Mrs Fong to do things for her and accusing her of not telephoning when she had in fact done so. Mrs Jee often said harsh things of her family, and complained about all her children.

[70] In 1990 Mrs Jee began consulting Dr Allan Stocks, an endocrinologist specialising in the treatment of diabetes. He or his locum saw Mrs Jee every few months up until the time of her death. She came to her consultations with Diana, who interpreted for her and provided information about her mother's health. According to Dr Stocks, Mrs Jee understood some English, and would nod or shake her head in response to questions, but could not converse. Mrs Jee was always calm and

co-operative. Apart from an episode of depression in 1997, he had no concern as to her mental state, and he thought it likely that she had testamentary capacity. Under cross-examination, Dr Stocks said although he investigated Mrs Jee's lethargy in 1993, he did not think her physical demeanour at that time was consistent with acute anxiety or depression; but he could not rule out the possibility of depression. He accepted that diabetes could cause vascular dementia, and that although deterioration might be progressive, executive functioning was likely to be affected early in its course. If Mrs Jee had moderate to severe dementia in August 1997, it was possible that it was already present to a considerable degree in mid-1995.

[71] Dr Stocks' notes, as well of those of Dr Simon Locke (Mrs Jee's general practitioner), and notes and reports of some other specialists consulted by her were in evidence. They present a picture of the progression of Mrs Jee's health complaints over the years.

[72] When Dr Stocks commenced treating her, he placed her once more on Diabex, and there are reports in his notes of Mrs Jee suffering from time to time from diarrhoea in association with her use of the medication. The notes reflect decreasing physical activity. In 1992 Mrs Jee is recorded as being "active in the garden but slowing up". There are references to tiredness and her suffering hip and knee pain in 1993 and 1994. In 1993 and 1994 Mrs Jee complained of increasing lethargy. Investigations set in train by Dr Stocks established that she was not suffering from cardiac failure and blood tests revealed nothing untoward. He concluded that what was needed was weight loss and exercise. According to Dr Stocks, Mrs Jee was 145 ½ cm tall, and his notes show that she weighed between 80 and 90 kg over the years during which he treated her.

[73] In July 1995 Mrs Jee began to see Dr Martin Deveraux, a rheumatologist, with left hip pain which he diagnosed as trochanteric bursitis. He treated her with injections of anaesthetic and a steroid and prescribed anti-inflammatories, apparently with some success; Dr Stocks' note of her attendance on 7 December 1995 records her as "cheerful, even fatter".

[74] In April 1996 Mrs Jee (according to the history later given on her behalf to specialists) began to suffer persistent and severe facial pain. In October 1996 she underwent a bilateral ethmoidectomy and nasal polypectomy. When Dr Stocks saw her in November of that year, her left-side facial pain had resolved but she had developed right-sided pain and swelling. In December 1996 Dr Quayle, the ear, nose and throat specialist who had been treating her, performed an endoscopy. The problems continued into the new year and in January 1997 Diana Jee reported to Dr Stevens, another specialist, that her mother's general wellbeing had deteriorated.

[75] In that month Mrs Jee was re-admitted to hospital with continuing pain causing her anorexia, nausea and vomiting. She was significantly depressed with suicidal ideation and Dr Stocks prescribed Prozac. While in hospital her sinuses were drained and a biopsy taken. She spent approximately one month as an in-patient. Her sinus problems were relieved by April 1997 but she was then suffering painful osteoarthritis of the knees. By March Dr Stocks was sufficiently reassured about her condition to cease the prescription of Prozac.

[76] In July 1997 Mrs Jee was referred to the Queen Elizabeth II hospital for assessment of her care needs, an assessment which will be considered further in relation to her mental health.

[77] In October 1997 her general practitioner referred her to a physician, Dr Antony, after she had an episode of tingling of the fingers of both hands, discomfort and loss of speech. Dr Antony considered it possible, but did not conclude, that she had had a transient cerebral ischaemic episode, although the history was not typical of such an event. Diana Jee informed Dr Antony that her mother was becoming difficult, refusing to take medication and to keep her appointments.

[78] Dr Stocks, the following month, made a similar note of Diana's comments and suggested that Mrs Jee resume treatment with Prozac. By March 1998, however, Dr Stocks noted that the Prozac had had to be ceased because of Mrs Jee's anorexia. She remained depressed and was reluctant to take medication. He suggested Zoloft and prescribed it as an alternative.

[79] In July 1998 Dr Stocks noted that Mrs Jee had multiple problems including congestive cardiac failure. On 8 August 1998 she died. Her death certificate lists the causes of death as pulmonary oedema, heart failure and acute myocardial infarct.

Aged Care Assessment - Queen Elizabeth II Hospital

[80] On 25 July 1997 Mrs Jee was referred by her general practitioner, Dr Simon Locke, for an assessment by the geriatric assessment team at Queen Elizabeth II Hospital. The referral details section of the admission form records under the heading "Medical Condition/Reason for Admission to Hospital" the following conditions:

"COAD (chronic obstructive airways disease). emphysema, sinus, IDDM (insulin dependent diabetes mellitus), ? dementia - but there seems to be lifetime authoritative personality traits too".

Mrs Jee is recorded as not being continent. In relation to alertness the entry is

"Seems alert - gives daughter a hard time (? Culture).

In relation to presenting problems it is noted that the daughter is having difficulty caring for her mother, who is very manipulative. Under "Comments" there is recorded the detail of a phone conversation with the daughter, presumably Diana, in which the latter

"Denies having any problems caring for her mother except the need for equipment for her mother and free incontinence devices".

[81] On 29 August 1997 there was a visit to Mrs Jee at home. Under "assessment details" a number of physical complaints including diabetes and angina are recorded and there is a further note:

"Forgets where she puts things - but daughter does not think she has dementia".

Under an assessment of daily living competencies it is noted that Mrs Jee needs assistance to dry herself and to wipe herself in the toilet and is incontinent of faeces with poor awareness and sometimes incontinent of urine requiring assistance to change, although not daily. In relation to behaviour, it is noted that she is disorientated to person, place, and time, and that she has memory problems and forgetfulness. Her behaviour is said to be normal.

[82] It is in this part of the assessment form that the mental status questionnaire is set out. It is in the following form:

[83] Mrs Jee was able to answer only question 3, 7 and 8 correctly, giving her a total score of three out of ten. There is a comment in the form that it was not possible to administer a more extensive test, the mini-mental state examination, because of translation difficulties. There is then a set of diagnoses recorded, coded by number. Dr Hirschfeld was able to say that the references in those diagnoses were to diabetes, hypertension, chronic obstructive airways disease, glaucoma and senile cataract.

[84] The written notes of the home visit on 29 August 1997 contain the following:

"Mental state - obese, neatly dressed lady sitting in chair - no psychomotor retard or restlessness. Affect - reactive. Mood - happy usually. Speech - clear audible in Chinese dialect interpreted by daughter. Seemed to understand daughter's input - was suspicious of motive for assessment. Has accused daughter of stealing things - no delusional content probably - probably a function of memory."

"Unable to completely assess memory. MSQ3/10 - daughter describes some problems with forgetfulness, losing things, unreasonably ascribing losses to daughter who she says probably "throws them down the toilet".

[85] The typed, translated transcript of Mrs Jee's tape recording runs over seven pages. There seem to have been at least four or five intervals in the making of the tape, prior to most of which Mrs Jee says that she will resume another day or at another time. The tape is clearly addressed to her children, whom she names on four occasions in the course of the transcript. Notwithstanding Dr Leong's comment as to a confusion of chronological order the Chinese names of the sons and then of the daughters are given correctly and in order. The only error seems to be a reference to Meng Shui (Catherine Graham) as second daughter rather than second child.

[86] Certain themes are repeated throughout the tape. Mrs Jee says that she is talking about her "true will", and that it gives the sons one share and the daughters a half share. It is, she says, the tradition for sons to inherit, and she asks her daughters not to think her heartless. She urges the children, in relation to the plantation deeds, to "Fix it and bring it back. It's your future". If Catherine Graham returns the deeds, they are to be put into the bank for permanent safekeeping. The family is exhorted not to sell the plantations, or the houses at Kavieng and Robertson. In particular, they are to let Diana live in the Robertson house for the time being and to allow any others of the children who are visiting from overseas or who have no home to stay. Later in the tape, Mrs Jee says that Diana's sons are not to live there.

[87] Mrs Jee informs her children that her will is in the bank. She goes on:

"The bank is looking after Sun Neng as well to hand down to grandchildren, great grandchildren. It will never be lost. No one can touch it. Follow it and look after it."

That, presumably, is a reference to Sun Neng, the corporate trustee of the Sydney properties. There are complaints of Mrs Jee's hard life and lack of attention from her children and frequent adjurations not to argue over her will. Mrs Jee also refers to $100,000 that she has left and asks her children to take it, buy her a good tombstone, and to invite her friends to a wake.

[88] Mrs Jee says, in respect of the Kavieng house and the plantation, that part of it can be leased. The rental is to be put into Sun Neng Co to be spent on whatever needs doing. In the final part of the tape Mrs Jee says:

"Kavieng, the assets, the things, the houses and the land is all written in my will that the solicitors made but writing it he didn't understand so I am recording these few words for you".

She goes on to urge that the brick house at Kavieng, the Robertson house and the two plantations never be sold.

Was Mrs Jee of sound mind, memory and understanding?

[89] My impression from Dr Stocks' notes and the evidence generally is that Mrs Jee, who had been active in her garden when she first came to Brisbane, became increasingly sedentary and given to sitting in a chair in front of the television during the 1990's. However, at the time of making her wills in June 1995 her diabetes was relatively well controlled, and taking her age into consideration, she was in reasonably good health. She suffered from long-standing urinary incontinence, probably, in the view of Dr Stocks, the result of multiple children bearing. It was well managed so that her family and friends, apart from Diana, were not aware of it. She also suffered from what was described as "faecal urgency" which I conclude was associated with Diabex, the medication she took to control her diabetes and which made Diana's care of her particularly, towards the end of her life, increasingly complicated. Neither problem, however, was age-related and I do not find that either bears on the question of capacity.

[90] The view I take after an examination of both the lay and the medical evidence as to Mrs Jee's physical condition is that, while there was a gradual deterioration in Mrs Jee's health throughout the 1990's, the period of significant decline occurred from late 1996 when she required facial surgery. That coincides with expressions of concern throughout 1997 by Diana Jee to various specialists as to deterioration in her mother's health and the perception of need in July 1997 for an assessment of her health care needs.

Family observations of forgetfulness, depression and business acumen

[91] While accepting generally that there were instances of Mrs Jee's forgetfulness of the kind nominated by the defendants, I do not think that the evidence reflects more than the ordinary losses to be expected with advanced age. I accept the evidence of Dr Hirschfeld as to the distinction to be drawn between forgetfulness as to everyday matters and significant, disorientating memory loss. It reflects, indeed, the illustration offered by Cockburn CJ in Banks v Goodfellow :

A testator's "memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life ... To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?".[8]

The degree to which Mrs Jee exhibited a failing memory is, in my view, properly to be regarded as falling within the first of Professor Hirschfeld's categories.

[92] Although Mrs Jee was undoubtedly angry and distressed at the news that the plantations had been mortgaged without reference to her, the evidence as to that state of affairs falls far short of supporting depression at clinical levels. Neither Dr Stocks nor Dr Locke (from his notes) considered that Mrs Jee's state of mind warranted concern until early 1997, after she had undergone surgery. The preponderance of lay evidence, particularly that of relatively independent witnesses such as Father Chan and Mrs Seeto, is to the effect that Mrs Jee retained a lively interest in other people's doings, whether real or television fiction. While the unsatisfactory state of affairs concerning the plantations may have been a continuing vexation to Mrs Jee, it did not plunge her into continuing despair or extinguish her interest in life.

[93] Mrs Jee was not, in my view, an active and astute businesswoman in the last decade of her life. She was, I find, careful not to dissipate the assets she and her husband had acquired but she did not demonstrate any great capacity or understanding of business and investment in her later years. Rather she retained her assets, received the income from them, and placed it into interest bearing deposit accounts. She was not in close command of the details of her bank accounts, but she was in sufficient control to ensure that deposits were renewed when she was advised by the bank of the necessity to do so. She maintained in general terms her financial interests, although not in a very hands-on way.

[94] The mental status questionnaire, which formed part of the aged care assessment in July 1997, was not in Dr Hirschfeld's view a reliable diagnostic tool. I share his view as to its limitations, not only because its design was not intended for diagnosis but because of its cultural bias. Five of the ten questions in the questionnaire required the giving of a date, month or year. There is no evidence at all that Mrs Jee was familiar with a Western calendar. It is conceivable that she might have been able to respond with some form of Chinese equivalent; but there was no evidence at all about the way the questionnaire was put to her, the manner in which it was translated, and any attempt she might have made to answer it. I doubt too, that Mrs Jee who could not read in English or Chinese script and whose television interests seem to have been focussed on soap opera was in the least likely to have had any interest in who the current or past Prime Ministers were, notwithstanding Mrs Leong's expressed confidence in her grandmother's knowledge of current affairs. It is significant that the person who administered the test did not, among the many diagnoses given, purport to arrive at any diagnosis of dementia. I conclude that the questionnaire is simply too frail a structure to support the purported diagnoses of dementia by Doctors Berry and Leong.

[95] Nor do I consider that Mrs Jee's tape recording is, taken in context, demonstrative of irrationality or paranoia. I have already mentioned that the tape does not, notwithstanding Dr Leong's assertion, demonstrate any confusion as to the chronological order of Mrs Jee's children (although, indeed, with a family of eight some aberration might be quite understandable). Its contents undoubtedly indicate a high degree of anxiety and emotion. That, I think, is not to be wondered at in the case of a woman in her late eighties afflicted by a well-founded fear that her children would bicker over her estate. It is correctly described as disjointed and repetitive. Those features may well be a product of that heightened emotion and anxiety, but are also likely to be related to the fact that the tape was made over a number of occasions, with unknown time intervals between them.

[96] There is clearly a note of resentment towards Mrs Jee's children, but that was neither atypical (as the evidence of Ms Diana Jee and Ms Fong demonstrates) nor entirely unreasonable. Denis Jee conceded that the family had not always behaved well to their mother and there were the concerns about what had occurred in relation to the plantations which, as I will go on to discuss, were justifiable. There was no reference in the tape recordings to the bequests to the daughters-in-law and grandchildren. That, in my view, was consistent with Mrs Jee's practice of compartmentalising issues. It was entirely typical of her behaviour as reflected in the evidence, for example, of Denis Jee and Mrs Seeto, to regard money given to others, no matter how closely related, as none of the business of her children to whom she was addressing the tape.

[97] Mrs Jee's continuing anxiety and anger in relation to the mortgaging of the plantations and their passing, at least in name, into the hands of Catherine and Darryl Jee was not unreasonable, and was far from delusional. While she gave control of Fangelawa Plantation Pty Ltd to her son Gerald, there is nothing to suggest that she envisaged his role as extending beyond business management, or that she apprehended he might feel at liberty to encumber or dispose of the plantations, whatever the legal position might be. It is clear that she regarded the property held by the companies as of prime importance to her family in both an emotional and material sense. It is also clear that she continued to regard her children, even as adults, as answerable to her. It is not at all surprising therefore, that she was distressed and angry to find that the plantations had been mortgaged without her knowledge or consent. In passing control to Gerald she had not imagined such an outcome might occur. In the case of Lemacott Plantation Pty Ltd, in which the management shares were not transferred, it is difficult to understand how the mortgaging occurred; and in the case of both properties Mrs Jee was understandably surprised that the bank had made available title documents which she believed (whether correctly or not) to be held on security deposit in her name.

[98] It is patent that Mrs Jee regarded the mortgaging and later the transfer of the properties as a breach of trust (in the moral sense) which her children were under an obligation to remedy; and, it seems that Catherine Graham and Darryl Jee regarded the matter in the same light. The title deeds were, in the event, returned to Mrs Jee with a declaration of trust; but that did not occur until early 1998 after a good deal of enquiry and correspondence. Mrs Jee anticipated and strove for their return, and clearly felt some frustration when Mr Butts did not appreciate the reality, as she saw it, of her continuing entitlement to the plantations and the appropriateness of her dealing with them in her will.

[99] It is the case that both the statutory declaration formulated for Mrs Jee by Mr Butts and the letter written by the solicitors Johnston Brien contain inaccuracies but in effect they convey what Mrs Jee no doubt felt, and not without justification: that she had been deceived and let down by her children. The only element of irrationality, perhaps, in Mrs Jee's conduct was in holding Mrs Graham who, it is clear, acted throughout in good faith, responsible; but from Mrs Graham's account that is explicable in terms of Mrs Jee's cultural approach to the role of the eldest daughter.

[100] Mrs Jee's views in relation to the plantations do not appear to have affected her will. Gerald Jee, the prime culprit in their mortgaging, was given the same share as the other boys. Catherine Graham, into whose name they had been transferred, similarly received an identical share to her sisters. Even had the delusion been proved to exist it

"is a reasonable inference from the facts that [it] did not affect the disposition in question".[9]

Did Mrs Jee understand the extent of the property of which she was disposing?

[101] Nor do I consider that Mrs Jee was under any significant misapprehension as to the nature and extent of her assets. She certainly believed that to all intents and purposes the plantations were hers, and only grudgingly accepted that since they were not registered in her name they could not be dealt with in her will. But, as I have already noted, her view as to her moral and perhaps beneficial claim to them seems to have been shared by the registered owners, Catherine Graham and Darryl Jee. According to Diana Jee, what she said to Mr Butts on her mother's behalf was purely at Mrs Jee's direction; there does not appear, therefore to be any scope for doubt that it was Mrs Jee and not Diana who was the real source of information and instructions given to him. She was able to give sufficient information about the Sydney properties to indicate to Mr Butts that there might exist a trust; so it seems, even if she were not familiar with the legal intricacies of that arrangement, that she was generally under the impression that there was some such arrangement and aware of the need to convey it to him. There is no basis, in my view, for any concern that Mrs Jee did not understand what assets she had.

Was Mrs Jee capable of recognising the claims to which she ought to give effect?

[102] So far as it is said that Mrs Jee did not appreciate the claims on her bounty, it is clear that, of her children, Diana was in a special position, having lived with and cared for her mother for many years. There is a recognition of that situation in the tape recording made by Mrs Jee when she indicates her desire that the house be kept for Diana to live in; but for, whatever reason, she was not prepared to make greater provision for Diana than that. It is possible that Mrs Jee thought she had already assisted her by providing a home for her and her sons for many years. Diana of course shared as the other daughters did in the residue of the estate, and each of her sons would take a share of the funds left by Mrs Jee. None of Mrs Jee's descendants was excluded from her will. She was, I find, fully capable of recognising the claims on her bounty.

[103] It follows from what I have said thus far that I do not think that the opinions of Drs Berry and Leong, however sound in principle, have any real evidentiary basis. I conclude that Mrs Jee was not suffering from dementia or delusion at the time she made her will, and had testamentary capacity.

[104] Mr Thomas Jee said that his mother had in general conversation, but not in relation to any intended will, expressed to him her view that the future (presumably for the family) lay with her grandchildren, and also a concern that most of her grandchildren lacked the support of their fathers. His mother was, he said, very sentimental about the New Guinea plantations, which she wanted to retain in the family. He had explained to her that in order to remain freehold it was necessary that they be registered in the name of New Guinea citizens.

[105] Denis Jee said that Mrs Jee had told him soon after moving to Brisbane that she intended to follow Chinese custom and her husband's wishes by leaving her property in double shares to the boys and single shares to the girls. Mrs Graham also said that her mother had, in discussions after Mr Jee's death and before she left New Guinea told her that her will reflected a 2:1 division of her property among her children in favour of the males. Her mother had also taken the traditional Chinese view that women on marriage became a part of their husbands family, so that daughters-in-law were responsible for the care of their husband's parents.

[106] Diana Jee said that her father's view was that the sons should inherit the entire estate, but her mother had said in the past that she would treat all the children equally to reflect the contribution her daughters had made by their hard work in the stores and on the plantations in the New Guinea years. Her mother was, she acknowledged, scrupulously fair in her treatment of family members however they might have displeased her. Mrs Goodman said that her mother had told her daughters that they would be rewarded for their work in the New Guinea enterprises by sharing equally in the family's wealth. After the second occasion on which her husband had done the work in relation to Mrs Jee's bank accounts she had expressed her pleasure that her children would live comfortably and that she had enough money for them. Each of the other defendants recounted similar instances of their mother assuring them that she would leave her property in equal shares among her children. The 1976 will certainly reflected those assurances.

[107] But there is, in my view, no reason to suppose that the will of 29 June 1995 did not reflect Mrs Jee's real intentions. The shares given to her daughters, unsatisfactory though they might be in terms of modern principles of gender equity, were in fact a concession to her daughters' contributions and a departure from what Chinese tradition would have dictated, that is, the giving of the entire estate to the sons. Mrs Jee had in the past indicated a different intention to her daughters, but it is quite clear from the tape recording she made that there had been a change in her intention, and one she anticipated her daughters would resent. It is not surprising, given the relative dependence of her later years, that she did not choose to tell them that she had altered her intention about the distribution of her estate.

[108] It is clear that there was a reasoning process behind the change between the will of 28 June to that of 29 June; that as she had accepted the advice of her solicitors that the plantations and the properties should not be required to be retained there was a fund free for distribution to the grandchildren and daughters-in-law. The proposition that the position of the daughter-in-law in the Chinese tradition is more akin to that of a daughter in the Western cultural context was not challenged by the defendants. The fact that Mrs Jee was not over-enthused about some of her daughters-in-law and grandchildren, but nonetheless provided for them to share equally, is consistent with her usual conduct. She was, it was conceded, uniformly fair in the way she distributed gifts among the family group regardless of any animus towards individuals. The amount to be distributed among the daughters-in -law and grandchildren was large, about $840,000 at the time the 1995 will was made; but the group had 24 members, so that each would inherit about $35,000; not, I think, such a startling proposition.

[109] One of the concerns raised by the defendants was whether Mrs Cheong had been an adequate interpreter of the will. Witnesses were questioned on whether there was any direct translation for "term deposit" or "money deposited on call". Thomas Jee and Catherine Graham agreed that although Seeyup had words for "cash" and "money", there was no direct equivalent for those terms. Denis Jee, however, said that he was able to translate the expression "term deposit" into Seeyup. Mr Vincent Lee, a Cantonese-speaking solicitor, said that there was no literal translation for the expressions "tenants in common" and "estate both real and personal" in Cantonese. Thus, he thought, any translator would require a grasp of the legal concepts involved in order to translate them. Nor, he said, did the expression "deposited on call" translate readily into Cantonese.

[110] More generally, Susan Jee said she found no difficulty in communicating with Mrs Jee by addressing her in Cantonese and receiving responses in Seeyup. Father Chan said that having spent time in the Chinese community in New Guinea, he had observed that Seeyup and Cantonese speakers conversed without apparent difficulty. Similarly Mrs Seeto was able to speak to Mrs Jee in Cantonese and understand her answers in Seeyup. Mr Woo, the accountant (who was from Singapore, and unlike the other witnesses had no background in China or New Guinea) found difficulty in communicating with Mrs Jee, but that seems primarily to have been because he could not understand her Seeyup. He did not allude to Mrs Jee's having any problem with his Cantonese.

[111] Mr Butts said that Mrs Jee appeared to be quite determined as to what was to occur in relation to the will. Her conversation with the interpreter did not appear halting; it appeared to flow as a relaxed discussion. Lisa White described the process of the will being translated paragraph by paragraph and Mrs Cheong's stopping from time to time to clarify matters with Mr Butts, on some occasions at the instance of Mrs Jee.

[112] I do not consider that there is any real basis for supposing that Mrs Jee did not know and approve the contents of the will. Mrs Cheong spoke Seeyup and to the extent that there were any limitations in her knowledge of the dialect it is probable that she could in any event have made herself understood to Mrs Jee in Cantonese. Mr Butts considered himself able to communicate effectively with Mrs Jee through the medium of Mrs Cheong, and Mrs Cheong and Mrs Jee appeared to him to have no difficulty in understanding each other. Technical terms such as "tenants in common" and "estate both real and personal might well require explanation whether the client were conversing in English or through an interpreter; there is no reason to suppose that Mr Butts did not adequately convey what was meant to Mrs Cheong. Similarly, although there may not have been the Seeyup words for a direct translation of the expressions "term deposit" or "money deposited on call", I have no doubt that the concepts were capable of being rendered into Seeyup. Denis Jee appeared able to do so. Mrs Jee was familiar with moneys held in that fashion, and I think it reasonable to conclude that she would not have had any difficulty grasping what was being described.

[113] Mrs Cheong clarified with Mr Butts any matters that caused her difficulty and in turn transmitted any queries Mrs Jee had. The evidence of Mr Butts and Ms White as to how instructions were taken and the will translated is, in my view, sufficient to dispel any concern in this regard.

[114] Having examined the evidence as a whole I am not left with a doubt

"substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding of its execution."[10]

On the contrary, I am satisfied that the will of 29 June 1995 is the intended document of Mrs Jee, who was a competent testatrix.

[115] I order, therefore, that probate in solemn form of the Will dated 29 June 1995 be granted to Thomas Jee and I will hear the parties as to costs.

[1] Bull v Fulton & Ors [1942] HCA 13; (1941) 66 CLR 295 at 343; Bailey & Ors v Bailey & Ors [1924] HCA 21; (1924) 34 CLR 558 at 570.

[2] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283; Bull v Fulton (ibid) at 297; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706.

[3] (1870) 5 QB 549 at 565.

[4] Re: Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706.

[5] Re: Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705.

[6] Battan Singh v Amirchand [1948] AC 161 at 169.

[7] Timbury v Coffee; Bailey & Ors v Bailey & Ors (ibid).

[8] Banks v Goodfellow (1870) 5 QB 549 at 568.

[9] Bull & Ors v Fulton [1942] HCA 13; (1941) 66 CLR 295 at 299.

[10] Worth and Clasohm & Anor [1952] HCA 67; (1953) 86 CLR 439 at 453.