Q. And after this discussion where he told you that you had bought more expensive oil he stopped the money for a while but eventually started giving you money again to purchase food--
A. Of course. He was very happy and normal again, becoming normal, but he was not as I used to remember dad, the loving, the affectionate - he was treating me to cook, he was not treating me, take me out, he was not taking me, the father that I used to know.
20 Joyce came back to visit her father in Australia for his ninetieth birthday. This was in 1997. On one occasion during her visit she went with her father to Raymond's home in Wollongong. While there she went for a drive with Raymond's second wife which upset her father. He said to her "You have come to serve me, not to have a good time" and tried to hit her with his walking cane. There were other occasions during the visit when the behaviour of the deceased was abusive and difficult, but not necessarily irrational. She came to Australia again in 1999 after the deceased had suffered a stroke. She and Maurice arranged for their father to move to the Rose Bay Gardens Nursing Home.
21 Edward Arthur was a business colleague of the deceased. They worked together on the silica mining leases. The deceased offered Mr Arthur 20% of the enterprise but did not carry this through. Neither it seems did he pay him the wage which he agreed to pay. Nevertheless Arthur worked as a consultant and a type of mining agent for the deceased from 1984 until 1992. He worked full time and saw the deceased nearly every day at the Darling Point unit during this time. He said that in 1989 the deceased read an article about silica tiles being used in space shuttles and told some CSIRO scientist that he was going to build silicon space suits. He and the deceased had a major falling out in 1992 about the need to spend money on research and development. This ended in abuse and seems to have brought about an end to the relationship until January 1995. He said that on one occasion the deceased said it was necessary to complete an environmental impact study on the lease and when he told him this had been done in 1987 and a copy of it was on the file, the deceased said that he had never seen it and again became abusive. None of this was seriously challenged in cross-examination, apart from the space suits evidence in respect of which there was evidence of Mr Muhlbauer, whom I shall refer to later in more detail, that at a dinner party at the deceased's apartment there was a guest who was an inventor who talked about designing a suit to enable people to fly, and that the deceased expressed interest in this. Perhaps the most relevant evidence of Mr Arthur was of an occasion in 1992 when he and his wife were to drive the deceased to Wollongong to visit Raymond. He said that the deceased was in bed when they arrived, that he had three showers and shaved himself three times before they left, apparently not remembering the previous occasions. When Mr Arthur said to him, after one of these, that he had already had a shower and a shave he said, "No I haven't".
22 In 1995 the relationship between the deceased and Mr Arthur resumed for a period, but not on a business basis. He said that the deceased had become something of a recluse. He said that he was seeing Dr Iland regularly. They seemed to meet each other every day and they talked about "nothing in particular", but he did say that he talked about his health. He was there for three or four hours a day and it was difficult to believe that he would have been there if there was nothing sensible being said.
23 A Mrs Paciano commenced to clean for the deceased in about 1988 and continued to do so until 1997. She said that when she commenced the deceased was polite and kind to her and they got on well, but she said his behaviour changed about 1995. An incident occurred, probably in 1996, when the deceased accused her of stealing his money. The deceased, she said, was shouting and screaming. Mrs Paciano said that she asked him to calm down, after which they went to look for the money, and found it, which was eighty dollars, in his trouser pocket. On another occasion in late 1996 or early 1997, the deceased accused her of stealing women's clothes from the unit although she said there had never been any women's clothing in his unit. Late in 1997 the deceased accused her of breaking the Hoover, which had stopped probably through old age. She said he screamed at her and hit her across the face. She left for a while but Mr Muhlbauer asked her to return which she did for a month, but found the atmosphere too tense and then left. Nevertheless, she did visit the deceased on three or four occasions after that.
24 Joyce's daughter, Nathalie Azar, received considerable help from her grandfather which enabled her to go to the Boston Medical School. She kept in touch with him by telephone. She said that during the early 1990's these telephone calls became shorter. There were three or four occasions between 1991 and 1995 when the deceased discussed putting her through the Harvard Medical School, when she him told that she had already graduated through Boston.
The plaintiffs' evidence on the issue of capacity
25 The only affidavit evidence of Raymond was his formal affidavit as one of the executors required to obtain the grant and a further affidavit expanding the evidence of assets, but not as to their value. He gave no evidence relevant to the issue and was not cross-examined on it.
26 Mr Kerr, the other executor, had known the deceased since 1968. They had met when Mr Kerr, who is an accountant, was doing some work for a friend of the deceased. He and the deceased became friends and met regularly. He said that they talked about complex commercial transactions, about his family, but in 1995 mostly about the Queensland mining leases. He deposed to many conversations when the deceased said words to the following effect:
Deceased: I have educated most of Joyce's children at Harvard University in the U.S. I could not believe Maurice took me to Court and I could not believe he thinks I would not do things right by him. All Maurice wants is money from me. I have helped him out financially on many occasions and also bailed him out when he went bankrupt with his business in the U.S. I am happy with the work that Raymond is doing with the business. He is a very hard worker.
27 Mr Kerr said the deceased said nothing good about Maurice. He, Mr Kerr, knew that the deceased and Raymond were shareholders in all the businesses. He had no discussions about a will until 1997 when the deceased discussed changes and leaving Joyce and Maurice out and removing Raymond as an executor to make things easier, but did not go ahead. In cross-examination Mr Kerr said he had conversations with the deceased about his financial affairs. These were limited to the Wollongong assets, although he knew that there were some funds in Switzerland at one stage as $98,000 was transferred from the Clariden Bank in Zurich to his, Mr Kerr's, bank account on instructions from the deceased as part of the purchase moneys for a unit which he bought above his own unit in "Ranelagh". This was the unit where Mr Muhlbauer lived and which was transferred to Mr Muhlbauer by the deceased in 1993.
28 Mr Cordell is the solicitor who prepared both the 1985 and the 1995 wills. In affidavit evidence he said the deceased gave clear instructions for the 1995 will. He had two conferences with the deceased and Mr Dransfield prior to execution of the will. The first meeting took place on 2 December 1994. Much of the time seems to have been spent discussing the possible transfer of the deceased's shares in the silk company to Raymond. Mr Cordell had little independent recollection of what was discussed. He made notes of the meeting and the subsequent meeting and his evidence really comes from those notes. His notes indicate that Mr Dransfield was to provide a list of assets of the deceased. Three Wollongong companies are named in the note of the first meeting. The note states:
In will - may not want Joyce to get shares in her name and therefore perhaps a trust for her. I to consider this when I have details of Michel's assets. Told Michel won't stop Maurice if he wants to challenge the will.
29 A second meeting took place on 18 January. The same people were present. Again notes were taken. Mr Dransfield said that the deceased's assets were the Woollahra unit, shares in the three companies and the Normandie Hotel. The notes refer to the Phoenicia apartment block units being ten units and one penthouse worth about $200,000 each. The notes refer to the annuities to Joyce and Maurice and that these would be taxable. Mr Cordell said in one of his affidavits that the deceased had said:
I will provide each of Maurice and Joyce with an annuity of $20,000 for ten years. I have given Joyce a lot. I bought a unit in Beirut and put her kids through university. I want to give everything else to Raymond. Don't transfer the shares at this stage. Do the transfers via the will.