Kozak v Berwecki

Supreme Court of NSW|2012-05-10|Before: White J, Santow J

Judgment 1HIS HONOUR: These proceedings concern the estate of Stanley William Church who died on 18 October 2009 aged 88. He left an estate valued for probate purposes at a little under $6 million. He was unmarried and had no children. His closest relatives were his younger half-brother, Robert Church, and half-sister, Marjorie Mason. For ease of reading I will call the deceased and the parties by their first names. I intend no disrespect. 2The issue in this case is the validity of a will made by Stanley on 14 August 2009, by which he appointed his sister Marjorie as the executrix and sole beneficiary of his estate. The deceased's brother, Robert, contends that the will is not valid. He contends that Stanley did not have testamentary capacity. He also contends that Stanley did not know of and approve the contents of the will and that there were suspicious circumstances surrounding the execution of the document. He says that Marjorie has not removed the suspicion by proving affirmatively by clear and satisfactory evidence that Stanley knew of and approved the contents of the will. 3Robert filed a caveat against a grant of probate on 5 February 2010. On 22 February 2010, Marjorie filed a summons seeking a grant of probate of the will dated 14 August 2009 in common form. By administrative error of the court, probate was granted on 17 March 2010, notwithstanding the filing of the caveat. On 20 August 2010, Robert filed a statement of claim seeking revocation of the grant of probate and an order that letters of administration of the estate be granted to him and Marjorie on the basis that the deceased died intestate. Although Marjorie did not file a cross-claim seeking a grant of probate in solemn form, which would have been the appropriate procedure (Kozak v Berwecki [2008] NSWSC 39 at [5]), the matter proceeded on the basis that if I found that the will was valid, there should be a grant of probate of the will in solemn form. The only parties with claims on the estate are Robert and Marjorie. It was common ground that the onus of establishing that the document is the last valid will of the deceased lies on Marjorie.

The deceased's admission to Peter Cosgrove Nursing Home 4Stanley was a war veteran, having served in World War II. In 2003 he was diagnosed with early Parkinson's disease. In 2006 he was diagnosed with a carcinoma of the prostate. He was partially deaf. He suffered from chronic lymphocytic leukaemia, dysphagia, gastric ulcers, and chronic gastritis. 5Stanley was admitted to Mona Vale Hospital on 28 January 2009. He had been found by Marjorie, Marjorie's husband, James Mason, and by Robert, lying on the floor or his house. He had collapsed because he had become extremely weak through not having eaten. His dysphagia meant he had difficulty in swallowing. 6Stanley remained in Mona Vale Hospital until 24 February 2009, when he was discharged to Peter Cosgrove Nursing Home at Narrabeen. He remained in the Peter Cosgrove Nursing Home until he was readmitted to Mona Vale Hospital on 18 September 2009. His condition was then pronounced terminal and he was discharged back to Peter Cosgrove Nursing Home, where he died on 18 October 2009. 7The will was made in the Peter Cosgrove Nursing Home on 14 August 2009.

Making the will: a summary 8On 7 August 2009, a solicitor, Mr Bruno Gelonesi, attended on Stanley at the nursing home with Marjorie, at which time Stanley signed an enduring Power of Attorney and an Appointment of an Enduring Guardian appointing Marjorie as his attorney and enduring guardian. Mr Gelonesi asked Stanley if he had a will, but Stanley said words to the effect "No, I don't need one". Mr Gelonesi gave evidence that he recommended to Stanley that he have a will, saying words to the effect: "You might want to consider it because once you die, administratively there will be all sorts of problems. You may not find that the people who you want to get your property will get it. If you decide you want a will in the future, let me know." 9Marjorie deposed that when she visited Stanley on 11 August 2009, he said that he thought he should have a will. She telephoned Mr Gelonesi and put Stanley on the phone to speak to Mr Gelonesi. Mr Gelonesi gave evidence that Stanley confirmed that he had changed his mind and now wanted to make a will and instructed him that he wanted Marjorie to be the sole beneficiary and executor. 10Marjorie gave evidence that she became aware that the deceased was going to leave his whole estate to her. She said that to be sure that that was what he really wanted to do, she prepared a document that she took to Stanley on 13 August. The document contained four alternatives as to how his estate might be divided. Marjorie said that Stanley confirmed that he wanted to give the whole of his estate to her. She wrote "OK" against that part of the document, and "No" against the other three alternatives (which provided for different shares of the estate to be left to Robert). She deposed that the deceased then signed the document on 13 August 2009. 11On 14 August 2009, Mr Gelonesi brought a will which he had drafted to Stanley and he discussed it with Stanley when Marjorie was not present. The will left the estate to Marjorie and appointed her as executrix. According to Mr Gelonesi, he asked Stanley questions about his property and his testamentary wishes. Stanley confirmed that he wished to leave his estate to his sister. Mr Gelonesi read the will to Stanley. The will was then executed and witnessed by Mr Gelonesi and Mr Gelonesi's wife, who had attended for that purpose. Mr Gelonesi was satisfied that Stanley had capacity to make the will.

Family relations 12Stanley was on good terms with both Marjorie and Robert, but was closer to Marjorie. She drove Stanley to do his shopping and to attend his medical appointments, particularly from about 2005 as his health deteriorated. From about that time, she prepared hot midday meals which she delivered to Stanley every day. She also arranged payment of his accounts and bills and took him to his bank. She visited him daily in the nursing home and was the main point of contact for staff in Mona Vale Hospital and the nursing home. 13Robert also had quite close contact with the deceased. He said that he saw him nearly every week of his life after World War II. Marjorie said this was an exaggeration, but there was no dispute that they saw each other regularly. After Robert's wife died in 1997, they saw each other more often. Robert deposed that they kept each other company several times each week. They had a mutual interest in repairing old electrical equipment. Robert was also a regular visitor to the deceased when he was in hospital and the nursing home. 14In a letter to Robert's solicitors of 6 May 2010, GP Legal, Mr Gelonesi's firm, wrote: "When Mr Gelonesi ascertained that the deceased's closest next of kin were siblings and that his siblings included not only Mrs Mason, but also a brother, he specifically asked the deceased if he wanted to leave anything to his brother. The deceased's clear response was that he did not. We understand that the rift between the half-brothers, the deceased and your client, commenced when they were young men building a home for your client on their mother's land. That disagreement culminated in your client commencing proceedings against both the deceased and their mother. ... Apparently the deceased never entirely forgave your client for failing to carry out his end of the building agreement and thereafter suing both himself and their mother. ..." 15Mr Gelonesi did not obtain any information about a rift between Stanley and Robert from Stanley. He obtained the information from Marjorie, who was his client, or from Marjorie's husband. 16The dispute between Robert and Stanley and their mother concerned land in Dee Why owned by Stanley and his mother. Robert said that it had been agreed that a portion of that land would be transferred to him and in reliance on that agreement he had built a house on the land. He commenced proceedings on 26 March 1954 for specific performance of the agreement. The proceedings were settled in 1954. Mrs Church and Stanley agreed to transfer the land to Robert and Robert agreed to pay £250. Marjorie said that the proceedings caused their mother great distress and that Stanley had kept the documents relating to the case until his death. James Mason also said that Stanley accused Robert of having reneged on an agreement he made with Stanley about each helping the other to build a house. 17I do not accept that Stanley considered these to be reasons for excluding Robert from his will. Counsel for Marjorie attempted to lead evidence from her to establish that the deceased had not forgiven Robert about the dispute, but without success. Her husband, James Mason, had known the deceased for about 60 years and had seen him regularly. He deposed that on several occasions, the deceased had complained that Robert had not honoured an oral agreement between them that although he, Stanley, had helped Robert build Robert's house, Robert had not helped Stanley with the building of a house on a property in Bix Road owned by Stanley. But in his oral evidence, Mr Mason said that the last time Stanley had spoken to him about that matter was some two or three years before he went into hospital. He said that over 60 years Stanley had only made a complaint about Robert not honouring the agreement two or three times. The other complaints had been in the mid to late 1960s. This does not suggest that Stanley continued to have bitter feelings towards Robert over this issue. Unfortunately, Mr Gelonesi did not ask Stanley why he wished to leave all his estate to Marjorie and none to Robert. 18Mr Mason and Marjorie also gave evidence that Stanley had told them that Robert had told him that he (Robert) had just made a new will and had left everything to his (Robert's) daughter, Beverley, to distribute as she thought fit to other members of his family. This conversation was said to have occurred in June 2009. They said that Stanley was upset about it. I do not accept this evidence. Robert did not tell Stanley that he had left all his estate to his daughter, Beverley. In fact, he had made a will before his wife's death which provided that if she did not survive him, his estate would be divided equally between his children. In that event, he appointed his daughter Beverley his executor. He did not tell Stanley that he had left everything to his daughter for her to divide between other members of the family as she thought fit. It is unlikely that Stanley would have got that impression. 19I conclude that there was no feud or bad relations between Stanley and Robert. To the contrary, they were on good terms with each other. Nonetheless, Stanley was closer to Marjorie than he was to Robert. That could be a rational reason for his disposition.

Associate Professor Peisah's evidence: the deceased's medical condition 20In this case there is no reason to doubt that the deceased understood the nature of a will. It is also likely that at least in general terms, he understood the nature and extent of his property. As Associate Professor Peisah, a psychiatrist called by Robert, said, "The deceased's estate had not changed in recent times so that the nature of his estate would be old 'crystallised knowledge' that he would probably have retained". This was so notwithstanding that, in her opinion, Stanley suffered a disorder of mind. 21The question of whether Stanley did suffer any cognitive impairment, and if so, its extent, was in dispute. He was very ill, but he had not been diagnosed with dementia, nor any other cognitive impairment, prior to 1 September 2009, shortly before his readmission to Mona Vale Hospital. Nonetheless, Dr Peisah considered it likely that he had a disorder of mind. This opinion was partly based upon his having been diagnosed with Parkinson's disease in 2003, partly because of other risk factors and partly based upon conclusions she drew from the hospital or nursing home notes. Dr Peisah said that at least 75 per cent of Parkinson's disease patients who survive for more than 10 years will develop dementia. The mean time for onset of Parkinson's disease to dementia is approximately 10 years. In the deceased's case, he had only been diagnosed with Parkinson's disease less than seven years before his death. Dr Peisah said that there were considerable variations and some patients developed dementia early in the disease's course. She also said that "even in the absence of frank dementia, a high percentage of patients show cognitive impairments primarily concerning executive functions and feedback processing ... causing impairment in decision-making." 22The deceased's treating general practitioner, Dr Timothy Harpur, said that prior to Stanley's readmission to Mona Vale in September 2009, he had not picked up on any specific symptom of cognitive deficit. He said there may have been some minor cognitive deficits which could be associated with his Parkinson's disease, but it was not anything that affected his normal day-to-day functioning. Dr Harpur's notes of his visit to Stanley on 1 September 2009 recorded "Episodes of confusion. Also episodes of being very languid and looks grey. Seems bright but somewhat confused." His notes for 7 September 2009 reads "? Part dementia". At that time Stanley did appear to be showing some signs of difficulty of understanding what Dr Harpur was saying. Dr Harpur had seen Stanley on 28 July 2009, but not again until 1 September 2009. He observed a marked deterioration in his condition from 28 July to 1 September. He said that there had been what could be called a watershed in Stanley's condition that marked a substantial deterioration at some time between 28 July and 1 September. After being taken to the nursing notes for the period from 6 August to 1 September 2009, Dr Harpur expressed the opinion that the watershed would have occurred some time after 28 August because that was a time when, according to the notes, his general condition had deteriorated. I accept that evidence. This was a fortnight after the will was made. 23The notes of the Mona Vale Hospital following Stanley's admission on 29 January 2009, prior to his discharge to the Peter Cosgrove Nursing Home on 24 February 2009, do not contain any reference to any examination to test his cognitive ability. From time to time the nursing notes record Stanley as having been alert and oriented, but there are also notes from time to time recording his having been confused. 24It appears from the hospital notes that by 17 February 2009 the medical staff had assessed Stanley as requiring respite care in a nursing home. An ACAT assessment was arranged for Thursday, 19 February 2009. The hospital notes for 17 February 2009 record "patient is cognitively good and seemingly has capacity to decide". The ACAT assessment was that high level respite care and permanent residential care were both appropriate. Part of that assessment was of the patient's cognitive behaviour and psychological aspects. The assessment was that Stanley never suffered from short or long-term memory problems, at risk behaviour, aggressive behaviour, hallucinations/delusions, wandering, disturbed sleep, depressive symptoms, confusion or disorientation. 25The nursing notes of 21 February 2009 record Stanley as having engaged in inappropriate behaviour by pulling off his gown and exposing himself, and refusing to use an emesis bag, but spitting into a towel. He was reported as stating that he would speak to the doctor about the staff of the hospital. The following day the nursing notes record Stanley as having been very demanding overnight and having been preoccupied with pressing the remote control of his bed to make it go up and down. The nursing notes for that day recorded Stanley as having been confused and having taken a long time to start eating his breakfast, and of "waiting for a machine to have a bang sound". He refused his medication and refused to take a blood test. Later that day he refused food and drink. The notes of the following day also show a refusal of care and medication and of his having been confused and restless. Notes of 23 February 2009 record Stanley as having been confused and with behavioural problems. 26Stanley was admitted to the Peter Cosgrove Nursing Home on 24 February 2009. He was in the high care section. The notes of Peter Cosgrove Nursing Home for 24 and 25 February 2009 record that he could be quite confused at times. On the other hand, on 25 February 2009 the notes record that he presented as alert and oriented at the time of initial contact. He was particular about the placement of suction tubing, bed control and the call bell. 27The speech pathologist's notes for 12 March 2009 describe Stanley as being lucid and communicative. He gave an apparently accurate history of his illnesses. On 19 March the nursing notes recorded that he was looking much improved and there was discussion with the physiotherapist as to the possibility of his starting to walk the following week. The notes recorded Marjorie saying that Stanley was finishing his tax return. 28From time to time there were notes which Dr Peisah said indicated that Stanley was resistant to care, or which showed his becoming upset with the nursing staff. Dr Peisah said that it is the norm rather than the exception that cognitive impairment is missed by medical and nursing staff and that a description in the nursing notes of a patient as confused is likely to indicate severe impairment, whereas a reference in a nursing note to a patient's being alert and oriented provides little information about the patient's cognition, unless it was made as the result of an examination designed to test the patient's cognition. 29A speech pathologist's report of 29 June 2009 recorded that Stanley was hoarding dirty plastic teaspoons saying that these were the only ones he felt he could lift independently. Marjorie was to purchase bags of plastic teaspoons. Dr Peisah said (T53): "His behaviour was described at times as odd, he was described intermittently as confused. He was described as rigid. He was described at times as hoarding plastic, dirty spoons as his answer to his swallowing difficulties. This is in the context of a man with a dropping haemoglobin, a man with Parkinson's disease, a man with a sodium borderline. So it is highly likely he did have a cognitive disorder." 30The notes recording the deceased as being confused or behaving inappropriately related mostly to the time of his admission to Mona Vale Hospital, to the early period of his admission to Peter Cosgrove Nursing Home, or to periods from September 2009 when there was a marked deterioration in his physical condition. Dr Peisah said that the episodic nature of the reported incidences of confusion or abnormal behaviour meant that the most likely explanation was that from time to time Stanley suffered from delirium, which she described as an altered mental state, that is, altered cognition, as a result of a medical illness. Dr Peisah said that elderly people are prone to delirium by virtue of physical illnesses such as infection, metabolic disturbances, low oxygen, pain, or constipation, and that people with a pre-existing brain disorder such as dementia can be particularly prone to delirium. She said that, at a minimum, he suffered from delirium in January through to February, and that something was causing abnormal behaviour between January or February and the last month of his life, but whether that was Parkinson's disease, or cognitive deficits that would be expected with Parkinson's disease, she could not say. 31I accept this evidence. But it does not of itself indicate a lack of testamentary capacity in August. 32In the course of cross-examination of Dr Harpur, counsel for Robert explored the possibility that Stanley's experiencing episodes of syncope was indicative of a lack of testamentary capacity. Syncope referred to a loss of consciousness. The deceased suffered from such episodes, but this did not demonstrate any loss of cognition.

Mr Gelonesi's Evidence 33As noted earlier in these reasons, Stanley executed a power of attorney and an instrument of appointment of an enduring guardian on 7 August 2009. Marjorie telephoned the firm GP Legal to arrange for that to be done. That firm had been her and her husband's solicitor for many years. She arranged for Mr Gelonesi to attend on the deceased on 7 August to execute those documents. Although he gave no evidence about it in his affidavits, Mr Gelonesi said that he did not prepare those documents without first having spoken to Stanley by telephone to obtain instructions from him. I accept that evidence. As noted earlier, after the documents were signed, Mr Gelonesi asked Stanley if he wished to have a will made, but Stanley said that it was not really necessary as far as he was concerned at that stage. 34Marjorie's evidence about the execution of the power of attorney was confused. She thought that the power of attorney had been signed at or prior to the time of Stanley's admission to the Peter Cosgrove Nursing Home. She was definite that the purpose of Mr Gelonesi's visit was to bring a will for the deceased to sign. 35A file note of Mr Gelonesi's personal assistant dated 7 August 2009 records what appear to be instructions given by Mr Gelonesi that included an instruction that "Marjorie to advise re will". 36Mr Gelonesi denied that he gave any such instruction to his personal assistant, but could offer no explanation as to how the note would have been made unless such an instruction had been given. Mr Gelonesi's personal assistant also recorded that "If Marjorie doesn't call, phone her re will and posting documents". 37I infer that, notwithstanding that Stanley had told Mr Gelonesi on 7 August that he did not see a need to make a will at that stage, Marjorie told Mr Gelonesi that her brother would be making a will. 38On 11 August 2009, Marjorie telephoned Mr Gelonesi and put Stanley onto the telephone to speak to him. Mr Gelonesi deposed that the deceased confirmed that he had changed his mind and now wanted to make a will. Mr Gelonesi deposed that he asked Stanley to whom he wanted to leave his property and asked him who he wanted to look after his property after he died. Mr Gelonesi deposed that Stanley instructed him that Marjorie was to be his executor and sole beneficiary. In his oral evidence, Mr Gelonesi said that Stanley said "I need a will", and that after Mr Gelonesi had explained what an executor did and what happened when a will was made, Mr Gelonesi asked "Who do you want as your executor?" and "Who do you want to leave your property to?". Stanley named his sister as both his executrix and beneficiary. These instructions were given over the telephone. Mr Gelonesi was not alone with Stanley. Stanley was giving instructions in his sister's presence. Mr Gelonesi said that in the telephone conversation on 11 August, he asked Stanley if he owned any land, where he lived, what other land he owned and whether he owned other personal assets, such as shares or money. Mr Gelonesi said he went through a list of such questions. He said that he kept a file note of his conversation with the deceased on 11 August, but he had not been able to locate that piece of paper. He said (T179) that he did not know what had happened to the file note, that it had been a loose sheet of paper that had since disappeared. 39Mr Gelonesi deposed that after the conversation with Stanley on 11 August, he prepared Stanley's will. Having done so, he attended with his wife on Stanley in the nursing home on 14 August 2009. He asked Marjorie to leave the room. He said that Stanley clearly had his wits about him and was completely lucid. Mr Gelonesi deposed that he ran through the instructions the deceased had given him, that he confirmed that he had multiple properties, shares and money in the bank. He asked the deceased if he was married (and he said "no"). He asked if he had any children (and he said "no"). He asked him to confirm that he wanted his whole estate to go to his sister and he said he did. Mr Gelonesi deposed that he asked the deceased whether he had any other brothers or sisters and the deceased told him that he had a brother, Bob. Mr Gelonesi deposed that "I said to Stan words to the effect of 'You've told me you want to leave everything to Marjorie, but do you want to leave anything to your brother?' And he simply said 'No'". He said that he then read through the will which he had already prepared, one paragraph at a time, confirming with the deceased as he went, and the deceased was extremely clear, definite and precise. The will was then signed. 40In a later affidavit, Mr Gelonesi gave more details of his discussion with the deceased in the nursing home on 14 August. He deposed as follows: "9. Marjorie left the room and I began discussing the matter of the Will with Stan in the presence of my wife Ann. I said words to the effect of 'I have drafted a Will for you which I have here, when you spoke to me on the phone you told me that you wanted your sister Marjorie to be your executrix and you were going to leave everything to her, is that correct?' and Stan either nodded or said 'Yes'. 10. I recollect Stan and I had a conversation in words or words to the following effect - Me: 'Do you have a home?' Stan: 'Yes' Me: 'Do you own any other properties?' Stan: 'Yes' Me: 'Do you have any investments in the stock market?' Stan: 'Yes' Me: 'Do you have any cash in the bank?' Stan: 'Yes' (I think I asked Stan how much cash he had in the bank and he gave me a round figure, but I am not completely certain about this now). Stan and I also had a conversation in words or words to the effect of - Me: 'Are you married?' Stan: 'No' Me: 'Do you have any kids?' Stan: 'No' Me: 'Are you sure you want to leave everything to Marjorie?' Stan: 'Yes' Me: 'Do you have any other sisters or brothers?' Stan looked at me for a moment and I said 'Does that mean you do or you don't?' and Stan said 'Bob'. I recall saying 'Where does he live?' but cannot now recall Stan's answer. Me: 'You've told me that you want to leave everything to Marjorie but do you want to leave anything to your brother?' Stan: 'No'". 41I do not accept that Mr Gelonesi asked the deceased any questions as to whether he had any other sisters or brothers, or that the deceased told him that he had a brother, Bob, or that he asked the deceased whether he wished to leave anything to his brother. Robert gave evidence that on 12 November 2009, he telephoned the firm, GP Legal, and asked for "Bruno". A male voice answered and said "I am Bruno". Robert said that he was Robert Church, Stan Church's brother. The man to whom he spoke said "I didn't know he had a brother". Robert was not cross-examined on this evidence. Mr Gelonesi, whose firm acted for Marjorie in these proceedings, did not respond to this part of Robert's affidavit. I accept this evidence from Robert. There was no evidence that there was anyone working in the firm, GP Legal, whose name was Bruno, who had done work for Stanley, other than Mr Gelonesi. It is clear that Robert spoke to Mr Gelonesi. If Mr Gelonesi had had the conversation with Stanley to which he deposed in which he asked him about his brother, and whether he wanted to leave anything to his brother, he would not have responded to Robert in the way he did three months later. 42In cross-examination, Mr Gelonesi said that he made a file note of his conversation with the deceased on 11 August 2009, but he had not been able to locate it. In a letter to Robert Church's solicitors dated 6 May 2010, GP Legal stated that: "We advise that Mr Gelonesi did not retain his notes regarding the instructions for the will after it had been prepared and executed. Had Mr Gelonesi considered there was any doubt as regards testamentary capacity, he would have likely retained his notes, but Mr Gelonesi assures the writer he had no such doubts at all." This suggests that the notes were thrown out because Mr Gelonesi had no doubt about the deceased's testamentary capacity. That would be an extraordinary decision for a solicitor to make. His evidence that the notes had been lost was not consistent with the advice his firm conveyed on 6 May 2010. 43On the only occasion he was alone with Stanley taking instructions for the will Mr Gelonesi did not ask an open question as to whom Stanley wished to leave his estate. If, as he deposed, he ascertained that Stanley had a brother, he did not ask why Stanley was leaving all his estate to his sister. 44I give no weight to Mr Gelonesi's opinion that Stanley had testamentary capacity. Mr Gelonesi was a psychologist before he became a solicitor. I did not admit evidence of his opinion as to Stanley's capacity as evidence of that fact pursuant to s 79 of the Evidence Act 1995 (NSW). There was no evidence that the opinion he formed was the result of the application of specialised knowledge or experience in relation to the question of testamentary capacity. His failure to ask appropriate, non-leading questions about Stanley's property and testamentary intentions, or to ask for his reasons as to why Robert was to excluded from his will, coupled with my rejection of his evidence that he asked Stanley any questions that elicited information of the existence of Robert, means that his opinion about Stanley's testamentary capacity carries no weight.

Marjorie Mason's evidence 45Marjorie gave evidence of two matters that throw light on the deceased's testamentary capacity. The first concerns a letter that she said she wrote on Stanley's instructions concerning the construction of a fence on a property he owned in Dee Why. Marjorie deposed that she took the letter to Stanley on 12 or 13 August 2009. The letter was written by the neighbours of the adjoining property. It is undated. It concerned what were asserted to be inconsistencies in a survey report and a proposal for the construction of a dividing fence. It also concerned quotations that had been received in relation to the construction of the fence. Marjorie deposed that, on Stanley's instructions, she replied to the letter. She replied by saying that Stanley had indicated a preference for a particular quote for a three-rail fence in accordance with his original request. She conveyed his agreement to a re-survey of the boundary owing to the fact that the survey pegs used by the neighbours' builder to mark the neighbours' building alignment had not been found. She conveyed his agreement to sharing half of the cost of the re-survey, but said that Stanley's instructions were that the cost of a retaining wall, said to be a separate structure not relating to the fence, should be met by the neighbours. The letter indicates a very rational approach to the issues raised about the adjoining fence that would indicate a quite acute intelligence concerning financial matters. The letter is undated, except for a handwritten date in Marjorie's handwriting, but the quote, invoice and survey are consistent with the date put on the letter. 46The second significant matter concerns the document that Marjorie said she took to the deceased and discussed with him on 13 August 2009 referred to at [10] above. In her first affidavit, Marjorie deposed that: "On 13 August 2009, between when Stan gave instructions for and executed his Will, I asked Stan whether he was sure he wanted to give his whole estate to me and alternatively whether he would like to leave some proportion of his estate to his only other close relative Robert Church. Stan was very clear and succinct that he wanted me to have the whole of his estate and did not wish to leave any of it to the plaintiff, his brother Robert Church." 47In her later affidavit of 10 April 2012, Marjorie deposed: "Having become aware that Stan was going to leave me his whole estate, I wanted to make sure that that was what he really wanted to do. Annexed and marked 'D' is a copy of a document I typed up and printed out at home. When I went for my daily visit with Stan, on 13 August 2012 [sic], I took the document with me and showed it to Stan and put it on his bed table in front of him and Stan appeared to read it. I also read it to Stan paragraph by paragraph and Stan responded to each of the individual paragraphs by saying either 'no' or 'ok' and I noted his response in the margin next to the relevant paragraph by handwriting 'no' or 'ok'. After I had written Stan's response next to each of the paragraphs, Stan signed the document in my presence." 48The document to which Marjorie referred provided as follows: "LAST WILL & TESTAMENT of me Stanley William Church of 16 Arthur St Dee Why 2099 1. I revoke all Wills & other documents, this to be my last Will & Testament. 2. I appoint my sister Marjorie Elaine Mason of [x yyyyyyyyyy] St Narrabeen 2101 to be my Executrix & Trustee of this my Will. Suggestions: 1. I give my whole estate to be divided equally 50/50 between my sister Marjorie Elaine Mason and brother Robert Church. 2. I give my whole estate to my sister Marjorie Elaine Mason. 3. I give my whole estate to be divided: 2/3 two thirds to my sister Marjorie Elaine Mason and 1/3 to my brother Robert Church 4. I give my whole real estate to be divided equally between my sister Marjorie Elaine Mason and brother Robert Church and I give all Cash, Trusts, Bonds and Shares to my sister Marjorie Elaine Mason, exclusively. Signed Stanley William Church Date 13.8.09" 49Marjorie wrote "OK" against the first paragraph numbered 2, being the clause appointing her as executrix and trustee of the deceased's will, and against the second paragraph numbered 2, stating that the whole of the estate was to be given to her. She wrote "No" against paragraphs numbered 1, 3 and 4 under the word "Suggestions". The document bears what appears to be the signature of the deceased. The document also bears a date 13 August 2009 which appears to have been written by Marjorie. 50Dr Peisah said that Stanley's passive acquiescence to Mr Gelonesi's closed questioning said little about his testamentary capacity, but that his responses to the document provided to him by Marjorie showed a higher level of functioning. The consistency between the wish described in that document and the will he executed was itself a hallmark of testamentary capacity (T46). The fact that Stanley had been given four choices, but had chosen only one of them was an internally coherent response which was also indicative of testamentary capacity. It was consistent with the expression of an ordered mind. Dr Peisah did remark that there was an undecided question as to whether testamentary capacity required there to be an ability to spontaneously generate options, as distinct from choosing between options that had already been presented to the testator. On Marjorie's and Mr Gelonesi's evidence, Stanley had spontaneously generated the option of leaving his estate to her. The document proposed variations of that choice which would have provided his brother with different proportions of the estate to be shared with her. Stanley's rejection of those alternatives would be consistent with his having testamentary capacity. 51Dr Peisah did not conclude that Stanley lacked testamentary capacity. She said that it was probable that he suffered from a disorder of mind, but whether or not that made him unable to evaluate and discriminate between the respective strengths of the claims of his half-brother and half-sister depended upon whether or not there had been a rift between him and Robert concerning their mother's land. Dr Peisah said that: "If indeed the conflict persisted throughout Mr Church's life and provided the rationale for his disposition, then my opinion would be that he was able to weigh and discriminate between the claims of his beneficiaries. If however, there was a change of perception of his brother which coincided with the course of his disorder of mind, then my opinion would be that he was unable to weigh and discriminate between the claims of his beneficiaries. If there was evidence of a positive relationship in the intervening period between the initial episode of family conflict and his later alleged feelings of estrangement towards his brother at the time of writing his will, this would point to a 'poisoning' of the relationship in the later years, possibly fuelled by his disorder of mind ... ". 52In reaching that opinion Dr Peisah commented upon the inofficiousness of the will that excluded Robert. Counsel for Marjorie attacked that opinion on the basis of observations of Windeyer J in Kozak v Berwecki where his Honour, in commenting on evidence given by Dr Peisah in that case, said (at [44]): "The second expression of opinion of Dr Peisah which requires discussion is her view that the will is 'inofficious'. Such considerations emanating from Roman law need to be treated with considerable care where freedom of testation is the law. Many brothers, sisters, nieces and nephews of a deceased bachelor brother or uncle, who have a close an [sic] affectionate relationship with the deceased person may well be disappointed where such a person leaves his whole estate to charity, but that does not bear upon capacity. Of course the closeness of the relationship may give rise to some doubt as to capacity, for instance, if a child in bad circumstances with a close relationship to the deceased is left out. In the present case a more distant relationship, lack of contact and the claims of at least of one of the beneficiaries would be contrary to some conclusion based on inofficiousness." 53Counsel for Marjorie put to Dr Peisah that the concept of officiousness or inofficiousness had no place in a determination of testamentary capacity in Australia in the 21st century. Her response was that, from a medical point of view, it was something that would be considered, but it was not for her to comment on the legal aspects. It is well settled that what is required for a person to have testamentary capacity will vary according to the complexity of the will and the officiousness or inofficiousness of the will. In Brown v McEnroe (1890) 11 NSWR Eq 134, Owen J said (at 138): "Where the will is officious, that is, where the testator disposes of his property fairly among those for whom he is morally bound to provide, a very small amount of capacity is needed. In that case wills have been upheld which were made almost in articulo mortis; but where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty, then fuller and clearer evidence of capacity is required, and the capacity must extend to a memory and understanding of the extent of the property to be disposed of, and of the claims of those for whom he ought to provide." 54In Bailey v Bailey (1924) 34 CLR 558, Isaacs J said (at 570-571) that: "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 ... As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries ...; (b) the exclusion of persons naturally having a claim upon the testator ..." (Citation of authorities omitted.) 55These authorities were referred to with approval by Santow J (as his Honour then was) in Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43); (Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). The principle expressed does not run counter to freedom of testation. It merely recognises that whether a person has the capacity to exercise the freedom can depend on what the particular will is to provide. As the High Court said in Gibbons v Wright (1954) 91 CLR 423 (at 438): "... the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument ..." 56I do not understand Windeyer J in Kozak v Berwecki to have suggested a different principle. As the concluding part of para [44] of his Honour's judgment makes clear, his Honour did not consider the will in that case to be inofficious. In my opinion Dr Peisah was right in taking account of the inofficiousness of the will in her assessment of Stanley's testamentary capacity. 57Nonetheless, I do not consider that the determination of whether Stanley had testamentary capacity to make the will he did depends upon whether he was motivated to make the will by a long-standing grievance against Robert arising from the dispute in the 1950s concerning the construction of a house at Dee Why, or the litigation brought by Robert. It is understandable that Dr Peisah should have considered that that was the critical question, because Marjorie's solicitors had identified that as the reason for the deceased's testamentary disposition. I do not accept that that was the reason for his will. But there may have been a much simpler reason, namely, that he was closer to his half-sister than he was to his half-brother. She had solicitously attended to his needs. 58The document apparently signed by the deceased expressing his preference that his estate go to Marjorie and that no part of it should go to Robert is highly material both to the assessment of Stanley's testamentary capacity and to whether he knew of and approved the contents of his will. Whilst Marjorie deposed to its authenticity, her own capacity at the time of the hearing was at least doubtful. Her answers to questions in cross-examination were often unresponsive. She was fixated on the idea that the deceased had given a power of attorney when he was admitted to the Peter Cosgrove Nursing Home, whereas he did not sign that document until 7 August 2009. Whilst Marjorie deposed in her first affidavit to having had a discussion with the deceased on 13 August 2009 about his options as to how he would leave his estate, she did not then refer to the existence of this document. In her oral evidence Marjorie said that she had provided the document to her solicitors after it had been signed. It was not produced by GP Legal in response to a notice to produce. The explanation, as I understood it, for the non-production, was that the document had been put in a different file from that from which the documents produced in response to the notice to produce were obtained. 59These circumstances raise a suspicion about the authenticity of the document. But the document bears what appears to be the signature of the deceased. There was no handwriting evidence to cast any doubt on the authenticity of that signature. Accordingly, it is not surprising that Marjorie's evidence that the deceased signed the document was not challenged. Notwithstanding the doubts arising from the late production of the document, I must proceed on the basis of its authenticity. 60Although Dr Harpur did not specifically consider the deceased's testamentary capacity, he was of the opinion that the deceased did not suffer from any material noticeable cognitive impairment. Dr Peisah's doubts about the deceased's testamentary capacity arise from notes of the nursing staff at Mona Vale Hospital and the Peter Cosgrove Nursing Home that suggest episodic delirium. There is nothing to suggest that the deceased was suffering from such an episode at the time he made his will. Dr Peisah considered that such episodic delirium was probably attributable to an underlying dementia, but there is no other evidence of such a dementia. Of most significance is the deceased's rational instructions to Marjorie in relation to the costs associated with the dividing fence for his investment property in Dee Why, the resurveying of the property and the construction of a retaining wall; and his selection of one of the four options as to how he should leave his estate that was consistent with the instructions he gave to Mr Gelonesi. 61On this basis, I conclude that the deceased had testamentary capacity.

Knowledge and approval 62It is a separate question whether or not Stanley knew and approved of the contents of his will. That question only arises if the deceased had testamentary capacity. I have found he did. The existence of testamentary capacity does not of itself answer the question of whether or not Stanley knew of and approved the contents of the will. He may have had capacity to approve of the will, but nonetheless signed it without knowing and approving its contents. In this case the doctrine of "suspicious circumstances" arises. I have concluded that Marjorie was instrumental in causing the will to be made in her favour. Although it has been said that that is a circumstance that requires the Court to be satisfied of the "righteousness of the transaction", that does not mean that the Court can substitute its own judgment for that of the testator. It only means that the Court must be satisfied that the deceased did know and approve of the contents of his will. What must be dispelled is any suspicion that the will-maker did not understand what the will provided for (Nock v Austin (1918) 25 CLR 519 at 524, 525, 528; Vernon v Watson [2002] NSWSC 600 at [2]-[9]; Fuller v Strum [2002] 2 All ER 87 at [33], [65], [78]). 63In the present case three things point to the deceased having known and approved of the contents of his will. The first is the instructions which he gave to Mr Gelonesi on 11 August 2009. Whilst I have not accepted all of Mr Gelonesi's evidence, there is not sufficient reason to doubt his evidence of those instructions. The second is the intention expressed in the document signed by the deceased on 13 August 2009. The third is the fact that the will was read over to the deceased on 14 August 2009. The reading over of the will is attested to not only by Mr Gelonesi, but also by the other attesting witness, Mrs Gelonesi. 64The first and third matters only demonstrate that the deceased knew and understood the contents of the will. The second matter shows that he also weighed Robert's claims on his testamentary bounty. 65In Hoff v Atherton [2004] EWCA Civ 1554; [2004] All ER (D) 314 Chadwick LJ made pertinent observations on the interrelationship of the requirements of testamentary capacity and the requirement to establish knowledge and approval of a will where there is evidence of a failing mind and suspicious circumstances. His Lordship said (at [62]-[64]): "[62] ... A finding of capacity to understand is, of course, a prerequisite to a finding of knowledge and approval. A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. [63] Whether those are inferences which should be drawn depends, of course, on the facts of the particular case. The fact that a beneficiary has been concerned in the instructions for, and preparation of, the will excites suspicion that the testator may not know the contents of the document which he signs - or may not know the whole of those contents. The degree of suspicion - and the evidence needed to dispel that suspicion - were considered by this Court in Fuller v Strum [2001] EWCA Civ 1879, [2002] 2 All ER 87, paragraphs [32]-[36], [73], [77], [2002] 1 WLR 1097, 1107C- 1109A, 1122A-C, 1122G-1123C. [64] Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred." 66In other words, the will-maker may have testamentary capacity, but it may be found that he or she did not know and approve of the contents of the will, notwithstanding that he or she understood its contents, if the person did not exercise his or her capacity to comprehend and appreciate the claims to which he or she should give effect. If there are suspicious circumstances, evidence will be required that the deceased not only knew the contents of the will, but approved them, and proof of approval may require evidence that the deceased not only was capable of weighing the claims to which he or she might be expected to give effect, but did so. 67I do not decide whether this accurately states the law. In this case Marjorie's evidence, supported by the document Stanley signed, dated 13 August 2009, that he considered and rejected options for leaving Robert a share of his estate, establishes that Stanley knew and approved the contents of the will in the wider sense to which Chadwick LJ referred in Hoff v Atherton at [64]. 68I conclude that the deceased did know and approve of the contents of his will. It follows that the grant of probate of the will to Marjorie should be confirmed. The plaintiff's application to revoke the grant of probate in common form should be dismissed. Although Marjorie did not seek a grant of probate of the will in solemn form, that order should be made. 69I will hear counsel on the appropriate form of orders to get effect to these conclusions and on costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2012

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