Kantor & Anor v Vosahlo [2004] VSCA 235

5. Arguments as to standards of proof, and as to how they should be expressed both by way of directions to juries and in the course of reasons for judgment in trials without juries, have bedevilled the courts for centuries. In part that has had a beneficial result in that the primary standards to be applied in criminal trials and in civil proceedings have now been settled for many years and difficulties arise only in some jurisdictions as to how they should be expressed. The greater difficulty has been in assigning certain kinds of proceedings into the appropriate category, whether they should require proof beyond reasonable doubt, as upon a criminal trial, or proof on the balance of probabilities, as in conventional civil proceedings. The particular difficulty has been to decide whether and to what extent those primary standards should be applied, or applied in qualified terms, by reason of circumstances arising in specific kinds of proceedings. Thus in recent years it has been held that civil contempt proceedings must be resolved by the application of the criminal standard of proof: see Witham v. Holloway[1], as must actions for the recovery of penalties for certain breaches of the Customs Act 1901: see C.E.O. of Customs v. Labrador Liquor Wholesale Pty. Ltd.[2] Equally clearly it has been held over the last sixty years or so that certain allegations of criminal behaviour or the like in conventional civil proceedings between ordinary litigants do not require that such allegations be tested by the criminal standard of proof, for example, in the case of an allegation of homicide, see Helton v. Allen[3]; in the case of an allegation of fraud, see Rejfek v. McElroy[4]; and in the case of an allegation of adultery (when it was treated seriously by the law), see the detailed discussion in Briginshaw v. Briginshaw[5].

9. There has never been the slightest doubt that those who seek to propound a will for probate[6] bear the burden of establishing to the court that probate should be granted to them and that this ultimate burden remains upon them throughout the trial, although particular circumstances may in practice make that burden harder or easier to satisfy: see generally Bailey v. Bailey[7]; Landers v. Landers[8] and Timbury v. Coffee[9]. From time to time it may be sufficient to show by the calling of appropriate evidence that the will was duly executed and that it is rational on its face: see Symes

v. Green[10] as cited by Dixon, J. in Timbury[11]. On the other hand, if circumstances are shown to have existed which throw doubt on the capacity of a testator or testatrix validly to have executed a will, whether raised by evidence of old age, mental infirmity, suspicion of undue influence or of fraud, or the like, then that prima facie case of the propounder will be held not to be sufficient to justify a grant to the propounder. As the High Court said in Worth v. Clasohm[12]:

"A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent."

The present case arises out of an application to revoke the grant of probate to the appellants but, whatever might have been the position in other circumstances, it was accepted here that the burden of establishing that the will had been validly executed remained on the appellants, as having propounded the will and having received a grant of probate of it in the first place, so as to show that they remained entitled to that grant, with the consequence that, if they failed to do so, the respondent would have made good his right to have that probate revoked.

16. The more difficult aspect of this issue is the question as to what was the nature of the burden which rested on the appellants, in other words, as to what was the standard[13] of proof expected of them. The reference by the learned judge to the executors bearing "a heavy onus of proof" raises the question whether there can be any "onus" of proof in a dispute such as this other than the civil standard on the balance of probabilities and whether his Honour intended to raise the barrier against the propounders to an impermissible extent or whether he intended something less significant. For the proposition the judge cited a passage in an unreported judgment of Eames, J. in a case decided 14 February 1995 under the name In the Will of Alice May Ivory. The passage cited (at p.14) may have been seen by the judge in the present case to be particularly apposite, for Eames, J. there stated:

"Where there is evidence that the testatrix was defective in mind, memory and understanding at times both before and after the making of the will, by virtue of senile dementia, then the burden of proving that she operated at a time of lucidity when making the will falls upon those who propound it, and their burden of proof is not a light one ...".

It should be immediately noted that the description of the burden (or standard) as "not a light one" may well be thought to have a somewhat different connotation from the trial judge's shorter but more emphatic designation of a "heavy onus". Eames, J. cited as authority for his proposition two cases, the first being Re Munn[14], and the second Timbury, although no reference was there made to any specific passages in the latter decision. As will be seen, however, neither Munn nor Timbury provide support for the proposition that the relevant standard of proof is "heavy".

21. In Re Munn[15] Mayo, J. had described the "burden" in the same terms as Eames, J., i.e. "not a light one", though Mayo, J. referred for his proposition to the earlier High Court decision of Bull v. Fulton[16], and in particular to a passage in the judgment of Williams, J.[17] and to "the cases he cites", but not to the slightly earlier decision in Timbury.[18] Mayo, J. also referred to two earlier decisions in the ecclesiastical courts, namely, White v. Driver[19] and Cartwright v. Cartwright[20], the first of which, in particular, used very emphatic language.

24. However the passage Mayo, J. cited from Bull[21], was rather differently expressed in that Williams, J. did not explicitly refer to the standard of proof. There Williams, J. had referred to the circumstances where the "evidence as a whole" was sufficient to throw doubt upon the testator's competence and said[22] that in those circumstances "the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it ..." (emphasis added). Nevertheless I would not treat Williams, J. as describing only the shift in evidentiary onus for earlier his Honour had said[23]:

"Advancing age generally takes toll of some physical or mental attribute, however tough a person's constitution may be, and it has been recognised so often that it affects the faculty of memory that a will made by a person of advanced age is always carefully scrutinised by the court (Kinleside v. Harrison [24])." (Emphasis added.)

28. Moreover the cases cited by Williams, J. in Bull do not suggest that he was expressing the relevant test any differently or any higher than the civil standard. For example, he cited a passage from Landers[25] which used the same expression. It is interesting, however, that Williams, J. chose to cite that passage from Landers in the judgment of Rich, J. which, on its face, sought to dissent from or qualify what had already been said about the onus of proof by Isaacs, J.[26] In addition, no member of the Court in Landers, as I read the judgments, considered that it was a case where sufficient doubt had been thrown generally on the testator's capacity as to shift the evidential burden again firmly on to the shoulders of the propounders. Rather Isaacs, J. had considered[27] the propounders had effectively discharged the burden resting on them "subject to a counter case of an affirmative nature as introducing a specific element of disqualification to destroy the prima facie unclouded case established". It was this approach which had drawn a riposte from Rich, J. [28], expressing dislike of tests based on shifting burdens and then making the observation which has been so frequently cited as to the need for the court to "be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence". It may be that Williams, J. cited that statement in Bull[29] because Rich, J. had there cited two cases in which the testator had clearly been suffering from some form of infirmity before making the will and where the burden was stated to rest on those who wished to establish testamentary capacity by proof of a lucid interval or otherwise: see Smith v. Tebbitt [30] and Sutton v. Sadler[31]. In other words, what Isaacs, J. had said related to onus, whereas what Rich, J. relevantly described was how the standard of proof was to be satisfied.

31. Williams, J. in Bull[32] also cited Bailey, but that reference seems, with respect, curious in that the majority, of whom Isaacs, J. was a member, did not view it as a case where the evidence had sufficiently thrown a doubt on the testator's competence, but rather one where, a prima facie case having been made by the propounders, the burden lay "upon the party impeaching the will to show that it ought not to be admitted to proof".[33] Neither Isaacs, J., nor the minority judges (Knox, C.J. and Starke, J.) (who likewise did not see the burden of proof shifting), directly referred to the standard of proof, nor the mode of satisfaction of that standard, in circumstances such as Williams, J. was describing in Bull, except that Isaacs, J. stated[34] in his proposition 6 that: "The quantum of evidence sufficient to establish a testamentary claim must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances ...". (Emphasis added.) On the other hand Williams, J. also cited[35] Timbury for his proposition in Bull and one must assume that he was referring to the judgment of Dixon, J. [36], where the passage requiring affirmative satisfaction in Rich, J.'s judgment in Landers [37]

36. Finally Williams, J. in Bull[38] cited Derrett v. Hall, an unreported decision of the High Court given on 4 February 1942,[39]. Both Rich, J.[40] and Williams, J.[41] (who formed the majority) in that case again expressed the necessity to establish "affirmatively" in circumstances such as the present that the testator was of sound mind, memory and understanding at the time of the will's execution.[42]

39. Thus, whatever might be said as to the origins of the passages referred to above from Landers and Bull, the requirement as to affirmative satisfaction in the circumstances seems to have been adopted by the High Court, though there seems no reason to doubt that this also connotes careful scrutiny. For example, in Timbury Dixon, J.[43]

[7]2[8][8]3[6]

, as to "affirmative satisfaction", had also quoted with approval a passage from the judgment of Cresswell, J. in Symes[44] where his Lordship said:

"But if there are circumstances in evidence which counterbalance that presumption [viz. of due execution], the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it."

45. Sir Owen Dixon, as Chief Justice, returned to the requirement of careful scrutiny in Worth v. Clasohm. There the High Court, having expressed the view, already quoted[45]

, that where a doubt has been raised, the burden "of satisfying the conscience of the court" rests on the propounder, continued as follows[46]:

"But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution." (Emphasis added.)

No authorities were cited directly for the stating of the rule in those terms, but it is entirely consistent with the many authorities prescribing "careful scrutiny", and I would not see it as essentially inconsistent with what had been said as to "affirmative satisfaction" in the preceding three decisions in the High Court, especially having regard to what Sir Owen Dixon had earlier said in Timbury and to what Kitto, J. was to say (as part of the Court) in the next case to be cited. It was merely describing the process whereby affirmative satisfaction may be obtained, but making clear the careful scrutiny that is required for that purpose.

52. Finally, the two concepts were drawn together in a decision of the High Court frequently overlooked, Boreham v. Prince Henry Hospital[47], by a court consisting of Williams, Fullagar and Kitto, JJ., who first[48]

repeated the general proposition that a will made in "advanced age" is "always carefully scrutinised by the court". (Emphasis added.) The Court then expressed this conclusion[49]:

"The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given." (Emphasis added.)

The matter has not been examined by the High Court thereafter, but the decisions to which I have just referred have been cited by Supreme Courts both at trial and appellate level, over the succeeding 49 years without, to my knowledge, any serious dispute as to the test propounded in them.[50]

59. The test thus laid down, requiring the court in circumstances of doubt, after vigilant and careful scrutiny, to be satisfied affirmatively[51] of the deceased's capacity to make a will, has been stated so frequently by members of the High Court that one should be cautious in accepting that either Mayo, J.[52] or Eames, J. was intending by their qualified language to lay down any different test, especially as each judge relied on and examined a number of the authorities which had stated that test. Mayo, J. directly relied on the relevant passage in Bull. Eames, J. not only referred to Mayo, J.'s judgment and to Timbury, but he earlier[53] cited the same passage in Bull requiring the court to be "satisfied affirmatively", and later quoted[54] the passage cited above from Landers[55]

, noting that Dixon, J. had approved it in Timbury.[56]

64. For these reasons I would not treat either Mayo, J. or Eames, J. as intending to lay down any stricter standard of proof than the conventional civil standard, unless, for reasons not so far apparent it should be taken that the High Court intended to alter the relevant standard. It is this latter question which must now be examined, for to use a cursory reference to "not a light" burden as a basis for changing the standard to a "heavy burden" in the present case by the trial judge (if it were so intended), without any further examination of authority, suggests an impermissible alteration to the standard of proof in this kind of civil action. What Eames, J. correctly indicated in Re Ivory was a need for caution before being affirmatively satisfied: on the other hand the trial judge here seemingly used a term prescribing a different standard of proof. If he did so, he was, in my opinion, wrong.

68. One must first examine what is the standard of proof which rests on a propounder in proceedings in which the validity of a will is in issue. Leaving aside for the present what has been intended by the cautionary test laid down in the High Court in decisions up to and including Boreham, there can be no doubt that the civil standard of proof on the balance of probabilities has been accepted and that the burden rests on the propounder. It would seem, indeed, that the proposition is so obvious that it has rarely been adverted to by the High Court. It is sufficient to repeat what Dixon, C.J., Webb and Kitto, JJ. said[57] in Worth v. Clasohm. There, after making the observation set out above[58]

stating that, in cases of doubt, the "burden of satisfying the conscience of the Court" rested on the propounder, they continued[59] in the terms already set out in full in para.[11] so as to make clear that the "criminal standard of proof has no place in the trial of an issue as to testamentary capacity".

73. The difficulty, however, lies in the significance, if any, in terms of the standard of proof, to be given to expressions such as "affirmatively satisfied", "careful scrutiny", "vigilant examination" or the like. One must accept, in the first place, that under the common law as it is presently understood, there are only two standards of proof, the criminal and the civil: see Briginshaw[60], Helton v. Allen[61] and Murray v. Murray[62]. It should follow that, whatever qualifications, requirements or cautions have been stated by the courts about the acceptance of one kind of proof or another, none of them change the standard ultimately to be established by the party which bears the burden of proving a case or issue.

76. What then is the significance of requirements laid down by the courts seemingly imposing a greater burden on those who seek to prove particular kinds of matters. Whether the matter be a criminal act, adultery or testamentary capacity in circumstances such as the present, there has invariably been a invocation by courts of highest authority to judges (and juries) requiring them to hesitate, be cautious or to require affirmative or cogent evidence as to a particular issue. Nevertheless, in a case involving an allegation of fraud, the majority of the High Court in Neat Holdings Pty. Ltd. v. Karajan Holdings said[63]:

"Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct [see, Motchall v. Massoud [1926] VicLawRp 43; [1926] V.L.R. 273 at 276] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

The majority then[64] referred to a passage in the judgment of Dixon, J. in Briginshaw[65]. It is preferable to set that out at slightly greater length, the passage directly quoted by the majority in Neat Holdings being here emphasised:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the act or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[66] In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

Now as to "reasonable satisfaction", Dixon, J. had already, indeed immediately before this last quotation, stated[67] what he understood to be the requirement in a civil proceeding:

"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality."

84. The problem, however, to be considered here is the nature of the degree of satisfaction to be reached where particular issues arise which the courts have said require special consideration by judge or jury. So Dixon, J. continued[68]:

"It is often said that such an issue as fraud must be proved `clearly', `unequivocally', `strictly' or `with certainty' ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained." (Emphasis added.)

The latter passage was cited only last year by Hayne, J. in a judgment with whom Gleeson, C.J. and McHugh, J. concurred: see CEO of Customs v. Labrador Liquor[69]. Then Dixon, J. immediately considered in Briginshaw the question of proof of criminal conduct, stating[70]: "When, in a civil proceeding, a question arises whether a crime has been committed the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... ". His Honour therefore was making abundantly clear that the civil standard nevertheless prevails but, in accordance with what he had already said, he stated this qualification[71]: "But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected." (Emphasis added.)

89. Dixon, J. then turned in Briginshaw to the question of proof of adultery upon which inconsistent opinions had been expressed by State appellate courts, as well as in the English courts. The answer ultimately given by all members of the High Court in Briginshaw was that an allegation of adultery did not have to be proved to the criminal standard but was one which might be proved according to the civil standard but subject to the caution required by the seriousness of the allegation. What Dixon, J. (and seemingly Starke, J.) perceived was that, although in the common law there were but two standards of proof, in the ecclesiastical courts not accustomed to applying the common law there had been a difference of approach which might be said to evidence a third, or different, standard of proof.[72] What had occurred in the 1850's was that the jurisdiction of those courts had been transferred to the common law courts and there had, over the succeeding eighty years been little clarification of precisely what standard of proof was required to establish adultery in matrimonial causes. This might seem to be at the fringes of relevance to the present case, but, of course, the jurisdiction with respect to probate had also been (largely) vested in the ecclesiastical courts until about the same time, when it was likewise transferred to the common law courts. So, as noted by Dixon, J. at 365, Cresswell, J., when transferred from the Court of Common Pleas to the new Court of Divorce and Matrimonial Causes had defined the standard of proof on a party who alleges misconduct against another as one where that party was "bound to establish such misconduct by affirmative evidence"[73], on its face an identical test to that needed to prove lucid intervals and the like in probate suits. Moreover, in concluding that adultery need not be proved to the criminal standard, Dixon, J. said[74], as to that issue, and using language not dissimilar to that used later by him in Worth, that "the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact."

92. What then should be said as to the standard imposed for proof of an issue such as testamentary capacity, where there is evidence of serious mental disability of one kind or another before and after the making of a will. Clearly proof of that issue is not precisely analogous to proof of adultery, at least as it was perceived when cases such as Briginshaw and Williams were decided. No criminal conduct or other misbehaviour is in strictness alleged. What the High Court nevertheless considered in the cases earlier discussed and leading up to the decision in Boreham, and for which they sought to prescribe rules, was how the courts should approach proof of another issue on the civil standard, subject to necessary cautions as to how satisfaction should be reached. The relevant passage in Briginshaw, which is in fact the very passage cited by the majority of the High Court in Neat Holdings[75], refers to the circumstances in which "reasonable satisfaction" of an issue was not to be produced by "inexact proofs, indefinite testimony, or indirect inferences".[76] The three broad circumstances (which, as I have said, ought not to be taken as exclusive) giving rise to the need for qualification were stated there by Dixon, J. to be: (1) "the seriousness of an allegation made", (2) "the inherent unlikelihood of an occurrence of a given description" and (3) "the gravity of the consequences flowing from a particular finding". Category (1) was relevant to adultery and remains relevant to cases of fraud and other criminal behaviour. The third category might cover cases where the right to carry on a profession or business is in issue. But it would seem that the second category[77], namely "the inherent unlikelihood of an occurrence of a given description", is the one which might fairly be applied to the present circumstances, namely the potential unlikelihood of a person temporarily recovering from a serious mental illness so as to have a lucid interval of a kind which would result in a finding of testamentary capacity at the time that the will is made.[78]

95. Thus, in a case such as the present, the essential basis for holding that it is one which requires a closer scrutiny of the evidence than is usual in the course of reaching a decision on the balance of probabilities, is that an occurrence of a lucid interval after the onset of senile dementia and during its course is inherently unlikely or unlikely to the extent that it calls for "vigilant examination" of the propounder's case before being "affirmatively satisfied" of the deceased's testamentary competence. Consequently the Court is not imposing a higher standard of proof - that remains satisfaction on the balance of probabilities - but is requiring a degree of caution which is appropriate to the case. It is, of course, inappropriate to look to factors such as the presumption of innocence relevant to criminal conduct and, at one time, adultery, but otherwise the seriousness of the issue and the unlikelihood of the event sought to be established by the propounders must "affect the process by which reasonable satisfaction is obtained": see Briginshaw[79]. It is a "process" or method of approach which requires the tribunal of fact to direct particular and cautious attention to a specific issue, but, having done so, to resolve the case on the conventional civil standard.

98. For purposes such as the present, where the Court has to be satisfied affirmatively on the capacity of the testatrix to make a valid will, the burden of proof or, more precisely, the standard of proof therefore remains the same, that is, upon the balance of probabilities, but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence. If that process results in the Court being affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will, then a grant of probate should be made.

101. Lest it be thought that the "process" or method of approach, which has been laid down for consideration of testamentary capacity and which I have endeavoured to explain, is in reality another way of expressing that a heavier burden of proof rests on the propounder in a case such as the present, it may be useful to make a comparison with a "process" of deliberation, which, although of necessity not entirely analogous, has applied in another jurisdiction of the Court. The criminal law over the centuries[80] has required juries to be warned as to the way in which they should address proof of particular issues or in reliance on the evidence of particular kinds of witnesses. Thus in a variety of circumstances judges have warned juries of the dangers of convicting the accused on the unconfirmed evidence of accomplices or certain complainants unless, having scrutinised the evidence with great care, having considered the relevant circumstances and having paid heed to the judge's warning, they are satisfied of the truth and accuracy of the evidence: see, e.g., Jenkins v. The Queen[81], Longman v. The Queen[82]. Now, strict though that warning is, it has never been suggested that the standard of proof, as such, in criminal trials has thereby been altered. A criminal jury in those circumstances is never told that they can convict only if they are satisfied beyond any doubt, reasonable or otherwise. And this is for the very good reason that the warning is directed (again) only to the "process" or method of approach whereby the jury should decide whether the prosecution case is made out to the criminal standard. It is a warning to stop and stand back, to exercise caution in particular and out of the ordinary circumstances, which require a judge to issue a warning of danger, but it does not result in any increased or heavier standard of proof.

104. A not dissimilar approach applies to a case such as the present, in a civil trial, on an issue which not infrequently in the past was left to the practical common sense of juries. Warnings were given, even if not in precisely the same terms as would now be appropriate: see, for example, the warning given to the jury by Hannen, J. in the oft-cited case of Boughton v. Knight[83]. Likewise a judge must apply to the relevant issue the same caution as would be appropriate for a jury direction in this kind of case. The caution now (and for many years past) to be applied by judges has already been stated. It should affect the manner in which they reach their conclusions but it has not been intended to change the standard of proof. To say that the burden in these cases is a "heavy" one is to misunderstand that process, whereas I would not read any error in the observations by Mayo, J. and Eames, J. in the cases cited having regard to the way in which they examined the relevant authorities. I would therefore conclude that the learned trial judge misdirected himself in the present case.

108. Even if I have misunderstood the manner in which his Honour approached determining the critical issues in this case, I would still, for the reasons stated by Buchanan and Phillips, JJ.A., consider that the trial judge misapplied the accepted tests as to testamentary capacity to the circumstances of the present case. As frequently stated, circumstances vary from case to case and it has never been said that old people are disqualified from making a will if they can otherwise satisfy those tests. The circumstances raised for consideration here were not complicated, neither were the decisions which the testatrix had to make complicated. She had a simple estate and relatively few (if any) people who might have expected to have their claims taken into account. Much of the medical evidence was directed to other issues which, though of general significance, could not be decisive as to testamentary capacity at the relevant time, the time when instructions were taken and confirmed for the making of the propounded will. Because the preponderance of evidence favoured the view that the testatrix's condition varied to an extent making it possible that she had lucid intervals, the question to be resolved and the issue to be raised with the expert medical witnesses had to take into account what the testatrix did at the relevant time. There was in practical terms only one person who was able to apply his mind to that question, even though it was not based on medical expertise, namely Dr Kantor who spoke to the testatrix and took her instructions before seeing to the execution of the will. I am not satisfied that the medical witnesses relied on by the respondent fully and appropriately took account of the observations of Dr Kantor (and the others) who saw the testatrix at that time. Doubtless it would have been a difficult exercise, as those medical witnesses could not have been sure how far the judge was prepared to accept the testimony of Dr Kantor (and the others). Moreover the judge himself had to relate the findings that he was prepared to make about the way in which the testatrix gave instructions and the medical opinions put before him. It seems to me, with respect, that he insufficiently related those two strands of evidence.

111. Even Dr Price's evidence, which was clearly very relevant and formed an undoubted basis for requiring the propounders to establish their case affirmatively, was not fully appreciated in his reasons. She had expressed the opinion that two months before the making of the will the testatrix would have been "aware of the nature extent and value of her estate". It is not surprising that the doctor expressed those views for, whatever may have been the basis for her knowledge, in substance the testatrix owned only the house she lived in and a sum of about $50,000 in a bank account. Although his Honour made no finding on that issue directly, it must be assumed that he accepted that that remained the case for he also accepted Dr Price's further opinion as continuing to apply, namely that the testatrix would have been "aware of those who might reasonably have a claim on her bounty". Moreover, not only did the judge express the view that the will was not inofficious, explaining why the beneficiaries under her earlier will had little call on her bounty as they were variously either dead or "remote in time, distance and in her affections", but the judge also, towards the end of his judgment, expressed the view that the testatrix had given "coherent reasons" for excluding those particular relatives. Furthermore his Honour appeared to accept that Mr Kruntorad was a friend who had done much for the testatrix and may fairly have taken the place in her mind of those earlier beneficiaries. To that extent the judge went further than Dr Price was prepared to go, in that she had thought as at March 1999 the testatrix would not have had the ability to evaluate and discriminate between the respective strengths of the claims on her bounty. The judge's fact-finding would, in my opinion, seem to deny that the testatrix lacked the relevant capacity to discriminate, because he considered that she had given "coherent reasons" for excluding the earlier beneficiaries, as already explained.

114. It might be argued that no finding was made by the judge as to her knowledge of others who might otherwise have a claim to be considered in her will. Again this was a simple case, dissimilar from many others where like issues have arisen. If her obscure relatives had been fairly omitted, then who might reasonably have been taken into consideration as the object of her benefaction? It was not suggested that anybody other than Mr Kruntorad was suitable, except that Dr Kantor very properly mentioned to her the possibility of leaving a gift to the Czech charity known as Sokol. The judge made a curious criticism of this gift or these gifts in paragraph [41] of his judgment (as set out in the judgment of the other members of the Court), which, with great respect, I have the greatest difficulty in understanding. Apart from its infelicity, the paragraph connotes that Dr Kantor had made suggestions as to how the testatrix might dispose of her property in a way which seemingly meant that she had no ability to evaluate and discriminate between those who had a claim on her bounty. The truth was that nobody really had such a claim except arguably Mr Kruntorad, whose generosity in her failing years might be recognised. The judge had already found that he was a suitable object for her bounty and, as to the charity, I have difficulty in understanding any criticism of its suggestion or choice. Solicitors frequently make suggestions as to the inclusion of charities in wills in circumstances where there are relatives who have a much more obvious claim than the obscure relatives of the testatrix in this case. Sokol was a charity with which she and particularly her husband had had a close connection because it had been set up for those with Czech origins. Moreover the proposed bequest was only $20,000 and was expressed to be "in memory of my beloved husband BOHUMIL VOSAHLO", who had been the first president of the organisation. Such a gift could hardly be said to have been inapposite in circumstances where the only other potential beneficiary was a relatively recent acquaintance, however kind his endeavours on her behalf may have been.

117. It may be that one cannot conclude that the judge considered that the gift in favour of this charity, or possibly in favour of Mr Kruntorad, were in fact appropriate or did demonstrate an ability to evaluate and discriminate between those who might have a claim on her estate. Nevertheless, the other findings seem to me to be more than sufficient to justify the view, however strictly the already stated test should be applied, that this was not merely not an inofficious will but one which was entirely appropriate having regard to the circumstances in which the testatrix found herself. The exclusion of the former beneficiaries was clearly found to be

coherent and, if his Honour was suggesting that the substituted beneficiaries, including the charity, were inappropriate, then, with respect, I simply cannot agree with him. The inference to the contrary was so strong that it could not reasonably have been rejected. In other words, having regard to all of the events, as described in the evidence, particularly those parts of the evidence of Dr Kantor which were not rejected and taking full account of the factual findings otherwise made by the judge, the relevant tests for testamentary capacity at the time had been affirmatively satisfied. Although I was at one stage inclined to the view that the matter should be remitted for reconsideration by a judge in the Trial Division, I have now been affirmatively convinced, in particular by the reasons of Buchanan and Phillips, JJ.A., that that is an unnecessary course which can be avoided having regard to the facts established in the present case. I would therefore be prepared to make those findings, notwithstanding the need for the vigilant and careful scrutiny of the whole of the evidence, as required by the authorities and notwithstanding the conclusion of the trial judge.

121. I would therefore allow the appeal and dismiss the application of the respondent for revocation of probate.

126. Emily Marie Vosahlo ("the deceased") was born in what is now the Czech Republic in 1913. She married Bohumil Vosahlo in 1945. In or about 1952 husband and wife emigrated to Australia from the Belgian Congo, where they had been living. Thereafter they lived and worked in Melbourne. They had no children. Bohumil Vosahlo died in 1990 and after his death the deceased lived in the family home in Moffatt Street Brighton until she was hospitalised in March 2001. She died on 2 December 2001 at the age of 88.

129. At her death the deceased left a will dated 26 May 1999 ("the 1999 will") in which she appointed the present appellants, Milan Kantor and Walter Alois

Grossman, to be her executors. Dr. Kantor is a solicitor who had acted for the deceased since 1990 and Mr. Grossman, an accountant who had been her friend and her accountant for about 50 years. The executors applied for probate of the will and this was granted in ordinary form on 7 February 2002.

133. Under the 1999 will, which was prepared by Dr. Kantor, the deceased left $20,000 to Sokol Funds Management Pty. Ltd. ("Sokol"), a charity concerned with the support of elderly persons of Czech origin in Melbourne, and the residue to Miloslav (Milos) Kruntorad, a friend of the deceased and her late husband.

136. After the grant of probate, an application was made for further provision under Part IV of the Administration and Probate Act 1958: proceeding no. 6666 of 2002. The applicants were two nieces of the deceased, Blanca Marie Vidler and her sister Jana Trankels. Both were daughters of the present respondent, Vladimir Vosahlo, the brother of the late Bohumil Vosahlo. In 1955 Vladimir Vosahlo and his family had come to Australia and for a time lived in Melbourne. In 1955 they moved to Sydney where they still reside. Although in this proceeding the respondent gave evidence that after the move to Sydney he continued to have some contact with the deceased, that contact was fairly desultory.

139. In the course of the Part IV proceeding (in which evidence from Mr. Kruntorad was given by affidavit and taken on commission because he was ill) it emerged that the deceased had made an earlier will on 12 March 1996 ("the 1996 will") under which she had left one third of her estate to her brother-in-law Vladimir. That, the respondent says, prompted him to bring the present proceeding which he instituted on 6 December 2002, only two days after the Part IV application was abandoned and in consequence struck out.

142. The present proceeding was commenced by summons naming as defendants the present appellants, the executors of the 1999 will. The respondent, as plaintiff, sought an order that the probate granted on 7 February 2002 be revoked and that probate be granted instead of the will dated 12 March 1996. The matter was tried in the Trial Division over five days in February 2003, by which time Mr. Kruntorad, too, had died. On 21 March 2003 the trial judge delivered reasons for judgment, granting the application[84], and on 4 April judgment was formally given, revoking the earlier grant of probate and granting probate instead of the 1996 will. The costs of all parties were ordered out of the estate.

145. Dr. Kantor and Mr. Grossman now appeal against the judgment given on 4 April 2003[85]. They allege error in the trial judge's conclusion, as expressed in his Honour's reasons for judgment[86], that he was "unable to be satisfied that the deceased had the requisite testamentary capacity at the relevant time". The question whether that betokens error is now the issue for determination.

148. The issue is the testamentary capacity of the deceased at the time of making the 1999 will. The legal requirements for such capacity were not in issue. As his Honour put it[87], a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty: Bailey v. Bailey[88]. The question of capacity has been agitated on this occasion because, according to medical evidence marshalled largely by the respondent (as plaintiff below), it seems that the deceased suffered from some degree of dementia - and according to a consultant neurologist who saw the deceased in October 1997, "significant dementia". In those circumstances the judge thought it clear enough that the executors bore the risk of non-persuasion on the ultimate issue "as they would bear that burden in the event of an application for probate in solemn form" and that he had to "be satisfied that this will [i.e., the 1999 will] is indeed a valid one". It was in that context that his Honour expressed himself, in conclusion, as "unable to be satisfied that the deceased had the requisite testamentary capacity at the relevant time" and accordingly revoked probate of the 1999 will.

151. It is convenient to follow the course adopted by the trial judge and dispatch at the outset an argument based upon the significant change to the beneficiaries effected in the 1999 will. In the 1996 will the deceased had left one third of the estate to the present respondent (the brother-in-law in Sydney) and for the rest one third each to two persons (perhaps cousins) who were still resident in the Czech Republic. None of these three was a beneficiary under the later will, of May 1999. In contrast, Sokol, a charity concerned with the elderly in Melbourne, is a charity of which Bohumil Vasahlo had been foundation president, in Australia. According to an affidavit of Dr. Kantor's, "the Czech Sokol movement in Victoria ... stems back to the nineteenth century and was considered to be one of the most important patriotic associations linking the Czech nation during the period prior to independence in 1918". In the 1999 will, the deceased described the bequest as "in memory of my beloved husband Bohumil Vasahlo".

154. As for Kruntorad, the only other beneficiary in the 1999 will, he was one who had been doing much to assist the deceased in her later years. Although he died before the trial began, his affidavit in the Part IV proceeding and the video record of his examination on commission were exhibits in this proceeding.[89] His Honour described the evidence thus[90]:-

"Mr. Kruntorad said he had been a close friend of the deceased since the 1960s. She was about the same age as his mother with whom he lived with his daughter in Wordsworth Street, St. Kilda. The deceased and her husband used to visit his mother frequently and he would see them there and take them for drives in the country. Some time after 1975, Mr. Kruntorad took Bohumil to hospital when he became sick and generally helped him in his difficulties. He said that shortly before Bohumil died, he asked his friend to look after his wife and Mr. Krontorad agreed that he would do so. Accordingly, Mr. Kruntorad visited the deceased regularly over the succeeding decade. He used to cook for her, do her shopping and carry out errands for her and, generally, provide her with Czech speaking companionship. He said that from April 1999, when he stopped work, until February 2001 he used to go to her place daily and make her breakfast and lunch. Sometimes he slept there. For this she paid him $250 per month. He spoke of occasions when, on his arrival, he found that she had soiled herself. He would then clean her up, bathe her and generally look after her. He also held her power of attorney but did not use it."

158. It cannot be surprising, then, that the Sokol organisation and Mr. Kruntorad were named as beneficiaries. Apparently it was argued at trial that the will should be regarded as one which ignored those who had claims upon the bounty of the deceased. It was an argument that the judge rejected, and, with respect, properly so. His Honour said[91]:-

"I mention at the outset the argument that I should look upon the will as an unofficious document. I do not agree. It is true that the deceased omitted in it a gift to her brother-in-law and his family living in Sydney. I accept that there was nothing extraordinary in this for the reasons she herself gave. She omitted, too, her Czech cousins who had previously been beneficiaries. One of them had died since her last will in 1996; the other was apparently remote in time, distance and in her affections. Furthermore, such place as these beneficiaries may have had in her mind in 1996 was taken by Mr. Kruntorad who was a friend and who did much for her".

The reference in this to "the reasons she herself gave" for omitting the brother-in-law and his family is a reference to the evidence of Dr. Kantor that, shortly before executing the later will, the deceased had explained to him why she wanted to depart from her earlier will.

163. We have mentioned already that the 1999 will was prepared for the deceased by Dr. Kantor. Again it is convenient to quote from the trial judge's reasons for judgment.[92]

"The evidence showed that Dr Kantor, a solicitor of some 45 years' standing, had made four prior wills for the deceased - on 29 April 1990, 29 October 1990, 9 April 1992 and 12 March 1996, respectively. In each case, he and Mr Grossman were named as executors. As Consul for Czechoslovakia and later the Czech Republic, from 1990, he knew Bohumil who was, for some time, president of the Czech Sokol movement in Victoria and active in affairs of this charitable movement. Dr Kantor had made Bohumil's will also dated 29 April 1990 which was in similar terms to that of the deceased's will of the same date. Dr Kantor told me that he, too, is of Czech origin and was able to speak with the deceased and her husband in their native tongue. He said, and maintained this despite a challenging cross-examination, that when he took instructions and when she executed the will the deceased appeared rational and appeared to him to understand what she was doing. He was firmly of the view that she met the legal requirements for testamentary capacity. Dr Kantor also knew the beneficiary under the 1999 will, Mr Kruntorad. Mr Kruntorad was also born in Czechoslovakia and was a member of the Czech Sokol Club in North Melbourne where he had been a cook. Dr Kantor knew that Mr Kruntorad was looking after the deceased."

167. The main thrust of the respondent's attack on the testamentary capacity of the deceased in May 1999 lay in the medical and para-medical evidence that, at the time she made a will in May 1999, the deceased was suffering from "significant dementia". Before us, both sides put the relevant evidence before the trial judge into three categories: that of medical practitioners and the like who spoke of the deceased at the time when they saw her; the evidence of medical practitioners who, after the event, were invited by the parties to comment on material put before them about the deceased, but who did not see her; and thirdly, what was called "the lay evidence". So far as presently relevant the lay evidence was that of Mr. Kruntorad (as already described), Kamila Nekvapil, a Czech speaking friend of the deceased for many years, Patricia Anne James, a law clerk in Dr. Kantor's office who witnessed the execution of the 1999 will, and Dr. Kantor himself. (The other witness to the execution of the 1999 will filed an affidavit, as also did Dr Grossman, but nothing was made of their evidence in argument.)

170. In his reasons for judgment, the trial judge canvassed in some detail the evidence in the first of these three categories, and more particularly the evidence given by a consultant neurologist, Dr. Hilary Hunt, who saw the deceased in October 1997, and by Dr. William Waddell, the deceased's general practitioner up to September 1998; the evidence of two nurses who each separately made an assessment of the deceased (for one purpose or another) in May 1998; the evidence of Dr. Price, the deceased's general practitioner from October 1998; and the evidence of Louise Irene Fagan, an occupational therapist who assessed the deceased for aged-care assistance on 5 July 1999, some six weeks after the execution of the will. In respect of this body of evidence his Honour said[93]:-

"I pause to remark that I have no hesitation accepting the evidence of these medical [sic] witnesses. They were professional and disinterested and although their opinions and assessments were directed to matters other than testamentary capacity, I found their observations and opinions of great value."

174. His Honour proceeded next to consider the report of Dr. Price in which she expressed her opinion on the three matters relevant to the legal definition of testamentary capacity. In doing so, the doctor based her opinion on her consultation with the deceased of 17 March 1999, and we shall return to this expression of opinion later. His Honour dealt, then, with the reports of the witnesses who were brought in by the parties at a later stage, the three medical consultants who were asked to comment upon the earlier reports and to express their opinions on the mental capacity of the deceased as at the end of May 1999, although, as already mentioned, none of these three had the advantage of seeing the deceased.

177. The two consultants retained by the applicant, Dr. Sutcliffe, a consultant psychiatrist and psycho-geriatrician, and Dr. Gillies, a consultant neurologist, both concluded "with greater or less confidence", said the judge, "that the deceased lacked testamentary capacity at the relevant time". Neither was cross-examined. For the executors, the papers were submitted to Dr. Mark Cunningham, consultant psychiatrist, who gave his evidence orally[94] and was cross-examined. He thought that the papers indicated "some degree of fairly established dementia", saying later "almost severe dementia, I suppose would be more correct". But in his opinion the deceased was probably suffering from vascular dementia rather than Alzheimer's-type dementia (although he did say that the two were often present together in elderly patients) and when asked his opinion about the deceased's lucidity at the time of making her will, he responded that the symptoms of dementia, particularly vascular dementia, were known to vary from time to time, at least before it became severe and long term - though even then (he said) a person could have lucid intervals. Despite the opinions of both Dr. Sutcliffe and Dr. Gillies that the dementia was not vascular in nature, he maintained his opinion that it was and therefore likely to vary from time to time in its impact. As the judge noted, his opinion on this point was "confirmed by the observations of Dr. Price".

180. The detail of all that medical and para-medical evidence no longer matters. What is important to this appeal is the judge's conclusion on the evidence so far mentioned, expressed as it was before his Honour turned to "the lay evidence". That conclusion was as follows[95]:-

"I conclude from this that the burden of the medical evidence, which I accept, is that, at the time of making her will, the deceased suffered from significant dementia which was probably due to vascular degeneration, perhaps accompanied by Alzheimer's dementia. I conclude that she was unable in March and July of 1999 to make a rational decision affecting her property, and for that reason she lacked testamentary capacity. I accept the medical evidence that her condition was deteriorating generally but also that she might have had periods when her disability was less apparent. The medical evidence that her mental condition might fluctuate was consistent with the evidence of Mrs Nekvapil that it did and I accept this to be the case.

184. Thus, and no doubt by reference particularly to the opinions of Dr. Price (who based her report on a consultation in March) and Ms. Fagan (who assessed the deceased in July), the judge was prepared to conclude that the deceased was unable in March 1999 and in July 1999 "to make a rational decision affecting her property and for that reason ... lacked testamentary capacity". There was debate before us about whether this conclusion was justified, not only because it was expressed before consideration of the lay evidence but also because much of the evidence mentioned thus far had not been directed to the issue of testamentary capacity at all. But we pass that by, for we are prepared to accept, for the sake of the argument, that there may well have been (as the judge said) a want of testamentary capacity in March 1999 and July 1999. But the will was made in May 1999 and the critical question is whether it can fairly be said from the totality of the evidence that in May 1999 the deceased lacked testamentary capacity.

187. It is especially important, as can be seen from the foregoing conclusion, that the judge accepted the opinion of Dr. Cunningham that from time to time, despite the dementia, the deceased could have had lucid intervals. The question then becomes whether the 1999 will was made during one such lucid interval. Indeed, that is how the judge saw the problem for he said[96]:-

"The case, then, resolved itself into issue whether, notwithstanding her incapacity before and after the relevant date, the deceased had the necessary capacity on that date. I bear in mind that in such a case the executors bear a heavy onus of proof that the deceased acted at the relevant time in a period of temporary lucidity: In the will of Mary Alice Ivory[97]".

191. While this was accepted as identifying what became the central issue and as properly casting the burden of proof on the executors in that regard, the first ground of appeal was error in the judge's characterising that burden as "heavy". Otherwise, however, the general principles were not in dispute. One starts with the proposition that, for a deceased to have acted with testamentary capacity, he or she must have acted with sound mind, memory and understanding with reference to the particular will. In Bull v. Fulton[98] Williams, J. put it succinctly when he said:-

"Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it: Mortimer's Probate Law and Practice[99], Sutton v. Sadler[100], Landers v. Landers[101], Bailey v. Bailey[102], Timbury v. Coffee[103], Derrett v. Hall[104]."

As indicated, there is ample authority of long standing to justify this statement of the law. One may add to the cases just cited, Symes v. Green[105] in which Cresswell, J. said (in line with what he had said two years earlier in Sadler) :-

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

See also Smith v. Tebbitt[106] and Smee v. Smee[107]. While it is possible that in Sivewright v. Sivewright[108] Viscount Haldane reversed the onus, to Lord Atkinson the evidence was clearly in favour of capacity so that onus did not matter[109]; and while the headnotes in both Landers and Bailey might suggest that the onus was on the objectors to prove incapacity, the judgments are to the contrary[110]. In those two cases Isaacs, J. alone may have seen the matter somewhat differently, but in Landers Rich, J. went out of his way to state his view unequivocally[111] - and that is the view that has since prevailed.

198. Thus, proof of due execution is ordinarily enough and testamentary capacity will not be separately raised for decision. But if "the evidence as a whole is sufficient to throw a doubt upon the testator's competency", then the will cannot be admitted to probate unless at the end of day, on all of the evidence, the Court is "satisfied affirmatively" of the deceased's testamentary capacity. As we read it, the passages just quoted from the judgments of Williams, J. and Cresswell, J. do little more than this: they mark out an issue that ordinarily needs no separate attention (testamentary capacity), they identify the circumstances in which that issue will call for separate decision (where a doubt about capacity is raised by the evidence as a whole); and they identify, too, the party upon whom the risk of non-persuasion then lies. In particular we do not read what was said by Williams, J. in Bull v. Fulton, or indeed by Cresswell, J. in Symes v. Green, as addressing the standard of proof (which remains the civil standard) or the strength - or cogency and the like - of the evidence needed to persuade the decision-maker that the deceased had the requisite capacity. The latter will of course vary with the facts of the case and depend upon the circumstances, but that does not alter either the onus or the standard of proof.

201. Importantly for present purposes, the issue of testamentary capacity falls to be addressed whenever the evidence as whole raises a doubt - a real doubt, as in the present case - about the capacity of the deceased. As Eames, J. put it in Ivory[112]:-

"Once the proponent has established a prima facie case then the onus shifts to the person seeking to impeach the will so as to demonstrate that the deceased lacked capacity. Where, however, the whole of the evidence casts a doubt upon the deceased's capacity, then the Court must be satisfied affirmatively that she was of sound mind, memory and understanding when she executed the will: Bull v. Fulton[113]."

Eames, J. then quoted the words of Hood, J. in In the Will of Wilson[114] to describe the legal test of testamentary capacity, and continued:-

"Where there is evidence that the testatrix was defective in mind, memory and understanding at times both before and after the making of the will, by virtue of senile dementia, then the burden of proving that she operated at a time of lucidity when making the will falls upon those who propound it ..."

The parties before us were agreed that what has just been quoted properly served to cast the onus upon the appellants at trial, but they were not agreed about what followed the quotation, for Eames, J. had added that the burden of proof, so cast upon the propounders of the will, was "not a light one" (echoing the like expression used by Mayo, J. in In re Munn[115]). No doubt that accounted for the description of the onus by the trial judge on this occasion as "heavy".

208. In Munn, Mayo J. was not persuaded that the onus had been discharged. In Ivory, the change to the will had been stark, in that a son, hitherto favoured by the testatrix for good reason, was displaced at a late stage by a daughter to whom nothing had previously been left, deliberately. Perhaps, then, it was because of the particular circumstances of the case that in Ivory his Honour had described the burden of proof as "not a light one": for the very fact of displacement, which on its face was difficult to explain, pointed against the conclusion that, in making the later will, the testatrix had been operating at a time of lucidity. But to say that is merely to recognise that it is the circumstances of the case that give rise to the doubt about capacity in the first place and which serve to shift the onus on to the propounders of the will: the circumstances do not alter the standard of proof.

211. Thus, in Kinleside v. Harrison[116], Sir John Nicholl said of a will prepared by the solicitor, Mr. Boodle[117]:-

" Now certainly in this account there does occur a circumstance in the preparation of this instrument, that always excites the jealousy and vigilance of the Court, and it has been much pressed in argument; the codicil is prepared through the agency of the party benefited, and without the professional person who prepares it having had access to the deceased for the purpose of taking his instructions: but the Court must take care not to convert a circumstance, which is only a reason for vigilance and caution, into an actual defeazance of the right of testamentary disposition, and of the clear testamentary dispositions of a capable testator. The degree of alarm excited by such a circumstance depends upon the other circumstances which accompany it; the thing frequently happens, and without exciting much, though upon all occasions, a certain portion of caution." [Emphasis added]

In that case there was a great mass of evidence bearing on capacity and the will was ultimately upheld. In Smith v. Tebbitt[118], the Court pronounced itself not "satisfied that the testator was of sound mind, memory and understanding at the time of execution" and so pronounced against validity; but added that, had the testatrix had "been esteemed capable of making a will at all", then "grave question would have arisen whether that capacity would have supported a will so made and with such dispositions as the will here in question". The Court explained as follows:-

"The law has ever been watchful and jealous of wills made under religious influences, and especially so when those influences connect themselves with any individual who is the object of the testator's bounty. Before this will, therefore, could have been established, the relations of Dr. Smith with the testatrix must have been further scrutinized and explained, and the Court satisfied that, in making him and his brother residuary legatees to the amount, as it is computed, of £180,000, the testatrix was acting freely, under the pressure of no imaginary duty or paramount obligation - the influence of no delusion as to Dr. Smith's spiritual being, and the guidance of no baseless religious dream." {Emphasis added]

217. Isaacs, J. spoke in Bailey in not dissimilar terms when he said[119]:-

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

His Honour gave as examples the nature of the will, as simple or complex, the rationality of its provisions, its inclusion or exclusion of particular beneficiaries, and the extreme age or sickness of the testator. In Bull v. Fulton[120] Williams, J. spoke of advancing age as affecting memory so often "that a will made by a person of advanced age is always carefully scrutinized by the court" (a proposition for which his Honour cited Kinleside[121]). In In re White, deceased[122], a case where the testatrix sometimes suffered from delusions, O'Leary, C.J., in the Court of Appeal, put it more broadly when he said[123]:-

"Applying the law to the facts and circumstances here, the will is shown to be properly executed and attested, but there are circumstances which must excite the suspicion of the Court and those suspicions must be removed before it can be said to be affirmatively established that the testatrix was of sound mind when she executed the will." [Emphasis added]

Those suspicions were not removed and so his Honour ruled against validity. Finlay, J. and Gresson, J. also considered that the propounders had failed to establish testamentary capacity, Finlay, J. expressly approving[124] what was said in Mortimer's Probate Law and Practice[125], that -

"... if circumstances of grave suspicion arise at the outset of a case, the burden of proving, and very satisfactorily proving, the testator's sanity rests upon the propounding party".

225. We mention two later High Court cases. In Worth v. Clasohm[126], after describing how the onus lay on the propounders once a doubt was raised as to the existence of testamentary capacity at the relevant time, Dixon, C.J., Webb and Kitto, JJ. said (when rejecting the criminal standard of proof as altogether irrelevant in such cases):-

"The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties placed before the court ...". [Emphasis added]

In Boreham v. Prince Henry Hospital[127], after quoting what Williams, J. had said in Bull v. Fulton about advancing age, Williams, Fullagar and Kitto, JJ. simply stated the test in classic terms:

"Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given. Memory is the faculty which is peculiarly in question in the present case."

No mention was made here of any difference in the standard of proof, which throughout all the foregoing cases was surely taken to be the civil standard, a view that was reinforced in Worth v. Clasohm when the criminal standard was expressly and firmly rejected as irrelevant. Worth was the only the only case we have seen in which the standard was discussed.

232. As a general principle, then, it will be sufficient to say, once a doubt has been raised about the testator's testamentary capacity, that the Court must be satisfied affirmatively that the testator was of sound mind, memory and understanding, when executing the will; for that was how the High Court described the onus in Bull v. Fulton and Boreham. The expression "satisfied affirmatively" says all that need be said and any further description of the onus can only distract and may mislead: compare Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd[128].

235. On this aspect the New Zealand case of White [129] is again helpful, because of the argument that was put there by counsel. Mr. Gresson, who argued the appeal successfully for the objectors, accepted that "the onus resting on the appellants before this Court [of Appeal] is a heavy one, in the face of the learned trial judge's positive finding as to sound disposing mind"[130]; but he added:-

"... just as, in the Supreme Court, the onus on the respondents [to prove capacity] was strict and heavy: "

For this proposition counsel cited Robins v. National Trust[131], a Canadian appeal before the Privy Council, but, so far we can see, nothing in the opinion of Lord Dunedin suggests the description of the onus accorded to it by counsel in White. Nor was that description adopted by any of the judges in the Court of Appeal; rather to the contrary. In the course of his judgment, Gresson, J. said[132] that, when validity is impeached, the onus lying on the propounder "becomes very much heavier", but that was said only by way of contrast to the onus which is ordinarily discharged by proof of due execution. It was no more than that. More importantly, Gresson, J. said in conclusion, about the onus on the propounders:-

"I am of opinion that refinements in regard to the onus of proof are neither helpful nor necessary. The burden of proof is, at the outset, on those who propound the will. Though it may shift from time to time to and fro, as evidence tendered leads to inferences which in time are rebutted by other evidence, there is ever present the governing or master principle that the Court has to be satisfied it is the will of a testator who had testamentary capacity to make, not a will in general, or any kind of will, but the particular will in dispute, a fortiori when it is shown that he was subject to delusions which may not be wholly unconnected with the dispositions he has made. Whether or not this onus probandi has been discharged can be finally determined only when all the evidence has been heard and the last word said." [Emphasis added]

241. There is no warrant, then, for describing the onus on the propounders in this case as "heavy" or the standard as other than the ordinary one applicable in a civil suit. Of course the cogency of the evidence necessary to discharge the onus will depend upon the circumstances of the case, as it always does; the source of the doubt as to capacity will say much about what must be proved to dispel the doubt. But the onus was fixed below on the appellants (as was acknowledged) and the standard of proof was on the balance of probabilities. Perhaps the judge, in describing the onus as heavy, meant no more than did Gresson, J., when he described it as "heavier" than before the doubt was raised as to capacity; or perhaps he meant, as did Eames, J., that the circumstances called for pretty clear proof, given what had raised the doubt - in this case, that the testatrix was suffering from some form of dementia. Or perhaps in describing the onus as "heavy" his Honour simply fell into error. As will be seen, it is unnecessary to express a concluded view on that aspect and so we refrain from doing so.

244. We turn next, as did the trial judge, to the evidence of the four "lay witnesses" earlier identified: Kruntorad, Nekvapil, James and the appellant Kantor. Mr. Kruntorad was familiar with the day to day activities of the deceased, as already mentioned. It was he who made initial contact with Dr. Kantor on 19 May 1999 for the making of the new will. It was he who accompanied her into the city on 26 May for the signing of the will, although she made her own way up to Dr Kantor's office on the 11th floor (a fact emphasised by Mr. Archibald on appeal) and Kruntorad was not present when the deceased signed her new will. His evidence was not altogether consistent with the facts established at the trial, which led the judge to say that he did not have "much confidence in the accuracy of his recollection". Of course, Mr. Kruntorad's evidence did not deal directly with the testamentary capacity of the deceased, for it was not in issue at the time the evidence was given, it being directed to the Part IV application.

247. On the one matter which was directly relevant, that Mr. Kruntorad had told Dr. Price (on a visit of hers to the deceased) about the appointment on the following day with Dr. Kantor for the making of the 1999 will and that the doctor had asked questions of the deceased apparently directed to her cognitive state, the judge considered his evidence unreliable. His Honour regarded Dr. Price as a reliable witness and her records showed that the last occasion before the making of the will on which she saw the deceased was in March 1999. Although, said the judge, it now emerged that she saw the deceased also on 21 May (the Thursday before the Tuesday on which the 1999 will was made), the judge was prepared to assume that that visit was merely routine and he rejected the evidence of Mr. Kruntorad that Dr. Price actually spoke with the deceased on the day before she went to Dr. Kantor's office to make the will.

250. Mrs. Nekvapil was one who fairly regularly visited the deceased in her later years. They had known each other since the early 1950s and they did not live far apart. Mrs. Nekvapil was present when the deceased was assessed by the nurses in 1998 and 1999 and she, who was herself a widow, had had some business experience. She held a power of attorney from the deceased. She kept the deceased's bank statements, signed her cheques for household bills and withdrew cash for her living expenses, including monthly payments that the deceased made to Kruntorad. As the judge put it, "by 1999 her day to day business expenses were not being handled by the deceased"[133]. None the less, Mrs. Nekvapil was adamant the deceased knew her own mind in 1999: she was capable of and did make decisions, such as dealing with requests for charitable donations. In her affidavit she said:

"In May of 1999 Emily was slow and lazy. It was an effort for her to do things but I coaxed her to make the effort to maintain her standard of living. She appeared to understand what I and Mr. Kruntorad (when in my presence) said to her and she responded normally, albeit slowly. She was alert and lucid although her short term memory was unreliable from time to time."

254. In cross examination Mrs. Nekvapil, somewhat incautiously it transpired, said that she saw the deceased "twice or three times a week" in May 1999. She was promptly made to confront the fact that from 25 April to 25 May she herself was in hospital as a result of a car accident. The respondent submitted to us that Mrs. Nekvapil did not see the deceased while in hospital, but that, too, is an overstatement. Certainly she did not visit the deceased while she herself (Mrs. Nekvapil) was in hospital, but the deceased, "came to see me in hospital", she said. Moreover, Mrs. Nekvapil visited the deceased again "before the end of the month", that is, before the end of May.

257. Ms. James, the law clerk employed by Dr. Kantor, already knew the deceased before she attended at Dr. Kantor's office in May 1999. Of her evidence the judge said[134]:-

"Ms James, a law clerk employed by Dr Kantor, knew the deceased from her previous attendances at the office. She had, indeed, witnessed her four last wills from October 1990. She described her on 26 May 1999 as being a lot more frail than when she had last seen her in 1996. She told me that she had a short conversation with the deceased in which they exchanged pleasantries. She then took the deceased into Dr Kantor's office and left her there for about half an hour to three-quarters of an hour. During this time she overheard them speaking in Czech and in English. Later, she and the other witness to the will were called into Dr Kantor's office to be present at the execution of the document. She said Dr Kantor said to the witnesses in the presence of the deceased that he had read the will to her and that she understood what she was signing. The deceased acknowledged this to be the case. I accept her evidence."

261. Thus far, none of "the lay evidence" might have been compelling in itself, though all of it tended to support the view that the deceased's dementia was such that she did have periods of lucidity from time to time. But the last witness and "by far the most important" was Dr. Kantor. He gave evidence "in strong terms" that the deceased had testamentary capacity at the relevant time but, as the judge saw it, the reliability of his evidence was "affected by a number of matters". The respondent relied heavily upon these matters as affecting Dr. Kantor's evidence: for their part, the appellants invited us, for reasons to be explained, to consider the criticisms as ultimately of no consequence.

264. In paragraphs 34 to 38 of the reasons for judgment, his Honour dealt with the matters affecting the reliability of the evidence of Dr. Kantor. First, he said, it did not appear that "he took any particular care to assure himself of [the deceased's] capacity notwithstanding her age and the evidence .... that she suffered from dementia....". This was said apparently because he sought no medical opinion or independent assessment. Indeed, said the judge, "his approach to his task appears to have proceeded on the assumption that she was unaffected by any mental disability at all". Secondly, Dr. Kantor took his instructions in two or perhaps several telephone conversations where, according to his Honour, "his ability .... to form a view about her mental state was limited". Dr. Kantor saw the deceased only once in May, and that was on 26 May when the will had already been engrossed. Thirdly, Dr. Kantor produced and relied upon the diary notes dictated by him on 26 May after the execution of the will, or perhaps on the day after that, from hand written notes which no longer existed. Apparently there were some inconsistencies between the written notes and what he said in oral evidence, which led Dr. Kantor to say "that the note consisted only of points to refresh his memory and was not a full and accurate record of events". Fourthly, Dr. Kantor "appeared to have viewed the attack on his client's capacity as an attack upon his professional competence and even his integrity" which, though understandable, led his Honour to consider his evidence as "possibly partisan in the sense that he appeared concerned to defend himself from these attacks". Finally, said the judge, Dr. Kantor's account of the circumstances of taking instructions "was vague and exhibited a degree of confusion to such an extent that I approach it with considerable caution".

267. These were the criticisms of which the respondent made much in argument, inviting the Court in consequence to disregard Dr. Kantor's evidence as to the testamentary capacity of the deceased. His, however, was the only direct testimony about whether the deceased on 26 May 1999, appeared or did not appear, to have testamentary capacity. Dr. Kantor swore a number of affidavits and we mention only that of 10 February 2003. In paragraph 14 he described the telephone call on 19 May 1999 from Mr. Kruntorad, telling him that the deceased wanted to make a new will; his consequent telephone conversations with the deceased to discuss the new will "and about her private life"; and the deceased's telling him that she wished particularly to benefit Mr. Kruntorad and why, and that she knew Mrs. Nekvapil, who was also looking after her, to be reasonably well off so that "she did not believe any need existed to provide for Mrs. Nekvapil in her will". In paragraph 15, Dr. Kantor described the deceased's telling him of her assets: namely, the house in which she lived "which is fully paid" and "a small amount of savings in her bank account" and, further, "a small income arranged by Mr. Grossman as well as her pension[135]". Dr. Kantor then described the deceased's giving him instructions to make the bequest of $20,000 to Sokol "in recognition of her late husband" who had been its president and that subject thereto "Mr. Kruntorad should be her sole heir". Dr. Kantor added that he read out to her the names of the previous beneficiaries "who she decided to exclude". Paragraph 16 describes what happened on 26 May when the deceased attended at his office and the contents of the will and her reasons for changing the beneficiaries were again discussed, before the will was executed; and by way of corroboration Dr. Kantor produced his diary notes which he had dictated (he said) "following execution of the will on 26th May 1999". In paragraph 17, the deponent confirmed his independent recollection of the deceased's reasons for changing the beneficiaries, emphasised that he had spoken with her in the Czech language and made translation "wherever I thought that [the deceased] may have difficulties in understanding the English" and concluded in emphatic terms: -

"Throughout the conversations I had with Emily [the deceased] and prior to the execution of her last Will on 26th May 1999, I found her to be clear in thought and speech. I have no doubt that on 26 May 1999 Emily had testamentary capacity to make her last Will."

271. In outline, that was the scope of Dr. Kantor's account on affidavit of events relevant to the execution of the will. Of course at trial it was but part of his evidence, for he was cross examined and inter alia the diary notes were examined. For the reasons identified above[136]

, the judge approached Dr. Kantor's evidence as a whole "with considerable caution" and during the argument on appeal counsel for the respondent made much of those reasons and that caution. Yet we are prepared simply to assume that there was force in the trial judge's criticisms of Dr. Kantor's evidence; for it seems to me that such cannot be determinative. That is because immediately after expressing his grounds for caution in approaching Dr. Kantor's evidence his Honour carefully set out, in detail, the findings he made in consequence. His Honour said, in paragraphs 39 and 40 of his reasons:-

"This leads me to make the following findings with respect to the events concerning Dr. Kantor. There were only two telephone conversations. In the first, on Tuesday 19 May 1999, the deceased told him of her wish to give all her property to Mr. Kruntorad. In one or other of the conversations, Dr. Kantor took his client through the 1996 will, asking her the reason why she wished to exclude her brother-in-law and her Czech relatives. She gave coherent reasons. Dr. Kantor suggested that she make a bequest in favour of the Sokol charity in memory of her late husband and she agreed to think about it. Prior to Monday 25 May, the will was prepared, presumably including the bequest to Sokol. Dr. Kantor telephoned her on that day, perhaps to make an appointment for her to attend for the execution of the will. In the course of this conversation he may have gone through the terms of the draft will, again by reference to her previous beneficiaries. Dr. Kantor at this time made some disclosure as to the nature of his involvement with the Sokol charity. On 26 May at his office, Dr. Kantor took his client through the will. He read it to her in English with explanations in Czech. She appeared to understand the document and duly executed it.

277. The respondent submitted that what was set out in paragraphs 39 and 40 had to be read as subject to both the criticisms expressed in paragraphs 34 to 37 and the caution expressed by way of conclusion in paragraph 38. We reject that submission. Paragraph 39 makes it quite plain that in stating his findings, his Honour was doing so after considering the criticisms he had just made of Dr. Kantor's account of the relevant circumstances, and in the light thereof, as the opening words of paragraph 39 plainly attest. There can be no reason, then, for supposing that paragraphs 39 and 40 of the judgment were in some way qualified. These were indeed the concluding findings and, in our opinion, they point inexorably to the conclusion that the deceased was shown, positively, to have had testamentary capacity when she executed the will.

280. Although the 1999 will served to change altogether the beneficiaries mentioned in the earlier will, the judge accepted that the deceased "gave coherent reasons" for doing so and he had earlier concluded that, contrary to the submission made by the respondent at trial, there was no reason to regard the will as disregarding those who had some claim upon her. Her recognition of Mr. Kruntorad as deserving of her benefaction was "rational and just" (as Mr. Archibald put it), as was her making of the bequest to the Sokol charity in memory of her husband. As to the extent of her property, Dr. Kantor's evidence was that he was told by the deceased herself what property she had and, whether or not she apprehended the size of the estate given that the house was probably worth more than she thought[137], there is nothing to suggest that she was not able to understand the extent and character of the property with which she was dealing; nor was it suggested otherwise at trial. The focus at trial was whether or not the deceased was in a lucid interval, and thus able to comprehend the nature and effect of what she was doing, when she made her will and, with respect, what his Honour set out in paragraphs 39 and 40 of his reasons for judgment establish that she was.

283. Because in argument on appeal the respondent placed much reliance upon it (as, we assume, was also the case at trial), the formal report of Dr. Price should perhaps be mentioned. Dr. Price was asked, after the event, to express her opinion on testamentary capacity, according to the legal definition, and she did so by a report dated 19 November 2002. The report was "made without the benefit of her clinical notes but she recalled that, in general terms, the mental capacity of the deceased fluctuated"[138]. In the formal report, the doctor expressed the opinion[139] that, as at 17 March 1999 (the last date on which she had noted seeing her before the making of the will), -

"... she [the deceased] would have been aware of the nature extent and value of her estate; she would have been aware of those who might reasonably have a claim on her bounty; but she would not have had the ability to evaluate and discriminate between the respective strengths of the claims of those persons".

Apart from the fact that this opinion was expressly qualified, at the outset, by the doctor's saying that she was "not confident this could be extrapolated to May in view of my previous comments that her mental state fluctuated", the last comment about the ability to discriminate, although the subject of cross examination, does not seem to us to bear upon the issues in this case. There is nothing to suggest that she had to discriminate between the respective claims on her beyond the extent to which she changed beneficiaries altogether, giving "coherent reasons" for doing so. This was a far cry from resolving the competing claims of a son and a daughter, as was the case in Ivory.

288. More significant, we think, is what Dr. Price said in her report by way of conclusion:-

"As you know opinion is different from fact and I think that [the deceased's] testamentary capacity would have to be demonstrated in the very narrow legal definition, on the day in question, and by the solicitor involved in the process of drawing up the legal document".

In other words, Dr. Price, whose evidence the judge accepted, saw observation of the deceased on the critical day as by far the more important consideration. Her expression of opinion as to testamentary capacity must then be taken to relate to the position of the deceased generally, allowing for the interposition of lucid intervals. Dr. Kantor was firm in his evidence that it was in a lucid interval that the deceased gave instructions for her will and a few days later executed it and, with respect, we think that in paragraphs 39 and 40 of the reasons for judgment his Honour accepted so much of that evidence as was sufficient to establish that affirmatively.

293. The respondent then relied upon what followed in the reasons for judgment, in paragraph 41. This was the last paragraph before the judge's final conclusion (that he was unable to be satisfied that the deceased did have the requisite testamentary capacity at the relevant time) and it read thus:-

"Given the way in which Dr. Kantor's evidence was given, I am not satisfied that these conversations were conducted in the manner which was not suggested to this elderly woman as to how she might dispose of her property. In this respect, I am mindful of the powerful medical evidence as to her medical infirmity".

The respondent made much of this, reading it (as is obviously correct) as if the word "suggested" was a mistyping of "suggestive". Dr. Kantor's diary notes make it plain that it was he who had made the suggestion that the deceased make a bequest in favour of Sokol in memory of her late husband, and the judge accepted that.[140] There was no evidence that Dr. Kantor had suggested Mr. Kruntorad as the principal beneficiary; nor was it said at trial that he had - or even that he had had a reason for suggesting that the deceased exclude those who were earlier named as beneficiaries of her estate. It is difficult, then, to see what the judge meant in paragraph 41, save perhaps that the deceased was so feeble as to fall in with any suggestion made to her "as to how she might dispose of her property". Importantly, it was not put at trial that any person put undue pressure on the deceased to make her will in one form or another; this was not a case of undue influence. It was not submitted at trial that the deceased's will had been overborne in some fashion, by Dr. Kantor, or by Mr. Kruntorad, or by anyone else. The immediate relevance of paragraph 41 is therefore not readily apparent and in view of the conclusions so firmly expressed in paragraphs 39 and 40 we regard paragraph 41 as but a passing comment and not germane to the final conclusion.

298. For these reasons, we would allow the appeal, set aside the judgment given below and dismiss the application for revocation. In our opinion, one may safely conclude that the appellants did discharge the onus on them, of proving capacity. That can be said by reference to the findings of the trial judge, especially as those findings were made in the light of the careful scrutiny which obviously the judge thought was appropriate, if only because he described the onus on the propounders as "heavy" - and perhaps that was all that his Honour meant by using the word anyway. Because the conclusion we have expressed flows, as we see it, from the judge's own findings of fact, no difficulty arises from any inhibition on the appellate function after a trial depending in part upon credibility of witnesses.

[1] (1995) 183 C.L.R. 525.

[2] [2003] H.C.A. 49; 77 A.L.J.R. 1629.

[3] [1940] HCA 20; (1940) 63 C.L.R. 691.

[4] [1965] HCA 46; (1965) 112 C.L.R. 517.

[5] [1938] HCA 34; (1938) 60 C.L.R. 336.

[6] Or for letters of administration c.t.a.

[7] [1924] HCA 21; (1924) 34 C.L.R. 558 esp. at 570 per Isaacs, J., with whom Gavan Duffy, J. and Rich, J. concurred at 579.

[8] [1914] HCA 74; (1914) 19 C.L.R. 222 at 235-236 per Rich, J.

[9] [1941] HCA 22; (1941) 66 C.L.R. 277 at 283 per Dixon, J.

[10] (1859) 1 Sw. & Tr. 401 at 402; [164 E.R. 785 at 785].

[12] [1952] HCA 67; (1952) 86 C.L.R. 439 at 453, per Dixon, C.J., Webb and Kitto, JJ..

[13] The preferred view is that "onus" or "burden" should be confined to the question on whom the burden lies and that "standard" of proof should be used in describing the degree to which a party must make out its case, i.e. on the balance of probabilities or beyond reasonable doubt. Usage is, however, not consistent.

[14] [1943] S.A.S.R. 304 at 307 per Mayo, J.

[16] [1942] HCA 13; (1942) 66 C.L.R. 295.

[18] It was decided nearly a year earlier than Bull but is the immediately preceding case in the Commonwealth Law Reports. Mayo, J. was clearly aware of Timbury for he cited it for another proposition later on p.307 of his judgment.

[19] (1809) 1 Ph. 84 (161 E.R. 922), per Sir John Nicholl at 86 (923), who said that it was "scarcely possible indeed to be too strongly impressed with the great degree of caution necessary to be observed in examining the proof of a lucid interval".

[20] (1793) 1 Ph. 90 (161 E.R. 923), per Sir William Wynne at 100 (927), who described the requirement "completely to establish" the propounder's case and that "There must be a complete and absolute proof" that there was no assistance. Cited with approval (on this issue) by Cockburn, C.J. in Banks v. Goodfellow (1870) L.R. 5 Q.B. 549 at 558.

[21] At 343 per Williams, J. The other member of the majority, Latham, C.J. said at 298 that he agreed with the view of the law expressed by Williams, J. See also at 299 where the Chief Justice said that the "standard of proof" was nevertheless that "required in civil cases".

[24] (1818) 2 Phill. Ecc. 449 at 462 [161 E.R. 1196 at 1200], referring to a circumstance "which always excites the jealousy and vigilance of the court ...".

[28] See at 235-236, citing Lord Brougham in Waring v. Waring [1848] EngR 693; (1848) 6 Moo. PC 341 at 355.

[30] (1867) L.R. 1 P. & D. 398 at 436: "the Court or the jury must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied". The passage in the judgment of Sir J.P. Wilde referring to the shifting onus appears at 434.

[31] [1857] EngR 738; (1857) 3 C.B. (N.S.) 87 at 97 [140 E.R. 671 at 675]: "unless [the jury] are convinced of the affirmative". Sutton v. Sadler is in fact also cited by Williams, J. in Bull at 343.

[33] At 571, proposition 8, per Isaacs, J., with whom Gavan Duffy, J. and Rich, J. (on this occasion) concurred.

[34] At 570. The "circumstances" are listed in some detail in proposition 7 at 571.

[36] At 283. As with his reference to Bailey, Williams, J. does not cite any specific passage from Timbury.

[37] At 235-236, as set out (in part) in para.[[]] (fn.[)] above.

[39] I am indebted to the librarian of the High Court for supplying me with a copy of the reasons for judgment which seem to have been read in open court and later revised.

[40] At p.2 of his judgment: "The court ... must be able, affirmatively, on a review of the whole evidence, to declare that the testator was of sound mind" etc., citing Smith v. Tebbitt and Landers.

[41] At p. 9 of his judgment: "unless the evidence as a whole is sufficient to establish affirmatively that the testator was of sound mind ...".

[42] Williams, J. in Bull also cited Mortimer's Probate Law and Practice, 2nd ed. (1927) at pp.53-55. It would seem the most relevant passage appears at p.53 where, citing Sutton and Smith among other cases, the learned author says that where there is evidence as to the incompetence of the testator the decree must be against validity "unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it." (Emphasis added.) See also at p.54 ("the burden of proving, and very satisfactorily proving ...") and p.62 ("rouse the vigilance of the court"). Lest it be forgotten, the author, whose knowledge of probate law was unequalled, was the father around whom his unhappy but better-known son "voyaged" before turning to the creation of his fictional character Rumpole.

[43] At 283. The passage immediately precedes the passage Dixon, J. cited and quoted from Landers: see para.[[] fn. and para.[] fn. above.

[45] See para.[[]] above.

[46] At 343, per Dixon, C.J., Webb and Kitto, JJ.

[47] (1955) 29 A.L.J. 179.

[48] At 180. They quoted the passage in the judgment of Williams, J. in Bull at 66 C.L.R. at 338, set out earlier in para.[[]].

[50] See, e.g., McKinnon v. Voigt [1998] 3 V.R. 543, although the issues were somewhat different.

[51] I would not treat the word "affirmatively" as merely emphatic, for an adverb of that kind would not be used gratuitously so often by members of the High Court.

[52] It should be noted that Mayo, J. gave his judgment before either Worth or Boreham was decided.

[55] At 235-236. See at para.[[] fn..

[61] [1940] HCA 20; (1940) 63 C.L.R. 691 at 712 per Dixon, Evatt and McTiernan, JJ.

[62] (1960) 33 A.L.J.R. 521 at 524 per Dixon, C.J. See also, in the context of criminal trials, Sodeman v. The King [1936] HCA 75; (1936) 55 C.L.R. 192 at 216 per Dixon, J.

[63] [1992] HCA 66; (1992) 67 A.L.J.R. 170 at 171. Cited with approval by the majority in Krakowski v. Eurolynx Properties Ltd. (1995) 183 C.L.R. 563 at 573 per Brennan, Deane, Gaudron and McHugh, JJ.

[65] At 362. The passage here quoted begins at p.361.

[66] I would not assume that Dixon, J. intended those broad categories to be exclusive, and it would appear that in Neat Holdings the High Court made no such assumption.

[69] [2003] H.C.A. 49; 77 A.L.J.R. 1629 at 1653 para.[135].

[71] Ibid, the latter phrase also quoted by Hayne, J. in CEO Customs v. Labrador at 1653 para.[135].

[72] At 363 and over the subsequent pages to 369.

[73] Alexander v. Alexander [1860] 2 Sw. & Tr. 95 at 101; 164 E.R. 928 at 931.

[77] It may be noted that category (2) does not appear to have been reproduced in s.140(2) of the Commonwealth Evidence Act 1995 and the New South Wales Evidence Act 1995, for reasons which are not apparent. Although the section contains some broad categories, the relevant factors must be such as to affect the answer as to what amounts to reasonable satisfaction and, as expressed in the section, they seem (to an outsider) too general to comprehend the strict mode of examination required by Briginshaw and Worth. Fortunately the meaning of the section is irrelevant to the decision of the case in this jurisdiction, in which common law principles as applied and adapted by the courts still operate.

[78] A not dissimilar approach was taken by Smith, J. to proof of a lost will or codicil, relating the caution there required to Briginshaw: see Re Plunkett [1965] VicRp 16; [1965] V.R. 118.

[80] The first example was probably in R. v. Atwood and Robbins [1788] EngR 39; (1787) 1 Leach 464; 168 E.R. 334.

[81] [2004] HCA 57.

[82] [1989] HCA 60; (1989) 168 C.L.R. 79 at 91 per Brennan, Dawson and Toohey, JJ.

[84] [2003] VSC 81.

[85] The present appellants are also the executors to whom probate was granted of the 1996 will. While they might be thought to have an equal interest in supporting the one will or the other, no point has been made about their standing to appeal.

[87] Reasons for judgment, paragraph 8.

[88] [1924] HCA 21; (1924) 34 C.L.R. 558 at 566-7 per Knox, C.J. and Starke, J. (dissenting, but not in respect of the principles).

[89] Reasons for judgment, paragraph 12.

[94] Objection was taken to Dr. Cunningham's report, Exhibit MLC1 to his affidavit of 1 February 2003, and the report was not admitted into evidence.

[95] Reasons for judgment, paragraph 22.

[97] Unreported, 14 February 1995, SC Vic, Eames, J. at p.14.

[98] [1942] HCA 13; (1942) 66 C.L.R. 295 at 343.

[100] [1857] EngR 738; (1857) 3 C.B. (N.S.) 87, 140 E.R. 671. (See especially 3 C.B. (N.S.) at 98-99, 140 E.R. at 676.)

[101] [1914] HCA 74; (1914) 19 C.L.R. 222.

[102] [1924] HCA 21; (1924) 34 C.L.R. 558.

[103] [1941] HCA 22; (1941) 66 C.L.R. 277.

[104] Unreported, High Court, 4th February 1942.

[105] (1859) 1 Sw. & Tr. 401 at 402, 164 E.R. 785 at 785-6.

[106] (1867) L.R. 1 P. & D. 398 at 436-7.

[107] (1879) 5 P.D. 84.

[108] [1920] S.C. (H.L.) 63. In Bull v. Fulton at 341-2, Williams, J. discussed Sivewright and was prepared, if necessary, to distinguish it as a case on Scottish law. Alternative justification was suggested by Gresson, J. in In re White, deceased [1951] N.Z.L.R. 393 at 424. Anyway, if Lord Haldane did reverse the onus, that view has since been clearly rejected.

[110] In both appeals, all the evidence at trial was weighed and a positive (or "affirmative") conclusion reached that testamentary capacity had been established.

[113] [1942] HCA 13; (1942) 66 C.L.R. 295 at 343.

[114] (1897) 23 V.L.R. 197 at 199.

[115] [1943] S.A.S.R. 304 at 307.

[116] (1818) 2 Phill Ecc. 449, 161 E.R. 1196 (Sir John Nicholl, Prerogative Court).

[118] (1867) L.R. 1 P. & D. 398 at 436-7.

[119] [1924] HCA 21; (1924) 34 C.L.R. 558 at 570. At 577, his Honour returned to the need for vigilance.

[120] [1942] HCA 13; (1942) 66 C.L.R. 295 at 338.

[122] [1951] N.Z.L.R. 393.

[126] [1952] HCA 67; (1952) 86 C.L.R. 439 at 453.

[127] (1955) 29 A.L.J.R. 179 at 180.

[128] [1992] HCA 66; (1992) 67 A.L.J.R. 170 at 171[1992] HCA 66; , 110 A.L.R. 449.

[129] [1951] N.Z.L.R. 393.

[131] [1927] A.C. 515 at 520, 521.

[133] Reasons for judgment, paragraph 30.

[135] Both of which would end at her death.

137] The deceased thought that the house was worth "at least $200,00" according to Dr. Kantor in evidence. Some years later, however, and after the deceased had gone into care, the house was sold for $775,000 and, even more shortly before her death, the deceased inherited a share in a cousin's estate, estimated to be worth in the order of $850,000, according to Dr. Kantor on affidavit.

[138] Reasons for judgment, paragraph 18.

[139] As described by the trial judge, in paragraph 20.