Lim v Lim - [2022] NSWSC 454 - NSWSC 2022 case summary — Zoe

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Lim v Lim

[2022] NSWSC 454

Supreme Court of NSW|2022-02-10|Before: Hallen J, Powell J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2022-02-10

Before

Hallen J, Powell J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 Hughes v Pritchard [2022] EWCA Civ 386 In re Berger, dec'd [1990] Ch 118 In re Groffman, decd [1969] 1 WLR 733 In re Munn [1943] SASR 304 In re R (dec'd) [1950] 2 All ER 117 In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5 In the Will of England (1900) 22 ALT 86 Jolley v Jarvis [1964] P 262 at 272; [1964] 1 All ER 596 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Key v Key [2010] WLR 2020; [2010] EWHC 408 King v Hudson [2009] NSWSC 1013 Kuhl v Liebcheschel [1933] SASR 394 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lewis v Lewis [2021] NSWCA 168 Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286 McNamara v Nagel [2017] NSWSC 91 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Neilson v Public Trustee; The Estate of Ellen Letitia Neilson (Supreme Court (NSW), Powell J, 8 May 1992, unrep) Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 51; [1918] HCA 73 Oakes v Uzzell [1932] P 19 Paraskov v Paraskos [2002] WASC 109 Parton v Johnson (1868) LR 1 PD 549 Payne v Parker [1976] 1 NSWLR 191 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 Perrins v Holland [2009] EWHC 1945 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Re Levy [1953] VLR 652 Richardson v Rearden [2006] NSWSC 1252 Ridges v Watson (Supreme Court (NSW), Powell J, 1 May 1992, unrep) Robertson v Barker [2021] NSWSC 1682 Romascu v Manolache [2011] NSWSC 1362 Rowe v Sudholz [2019] QSC 306 Ruskey-Fleming v Cook [2013] QSC 142 Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 Stanley v Stanley [2000] NSWSC 1133 Starr v Miller [2022] NSWCA 46 Starr v Miller; Starr v Miller [2021] NSWSC 426 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 Tsagouris v Bellairs [2010] SASC 147 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 Wharton v Bancroft [2011] EWHC 3250 (Ch) Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197 Texts Cited: A Learmonth, C Ford, J Clark and J Ross Martyn (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, London, Sweet and Maxwell) G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) Guidelines for Solicitors Preparing an Enduring Power of Attorney (December 2003) I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) Jarman on Wills (8th ed, 1951, London, Sweet and Maxwell) Judicial Council on Cultural Diversity, "Recommended National Standards for Working with Interpreters in Courts and Tribunals" (2017) K Laster and V Taylor, Interpreters & the Legal System (1994, The Federation Press) M Barnett, "Mind Your Language - Interpreters in Australian Immigration Proceedings " (2006) 10(1) University of Western Sydney Law Review 109 New South Wales Law Society "When a client's capacity is in doubt: A Practical Guide for Solicitors" (2016) New South Wales Law Society's Client Capacity Guidelines: Civil and Family Law Matters (2003) O Wood and G L Certoma, Hutley, Woodman & Wood: Succession: Commentary and Materials (4th ed, 1990, Law Book Co) Category: Principal judgment Parties: Tong Boon Lim (Plaintiff) Sony Tong Yew Lim (Defendant) Representation: Counsel: D C Price (Plaintiff) D M Flaherty (Defendant)

[3]

Introduction

In In re Berger, dec'd [1990] Ch 118 at 133E, Sir Denys Buckley wrote: "The function in English law of a probate court is to ascertain and determine what testamentary paper or papers is or are to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative."
In Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]: "The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."
In Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74, Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), wrote at [14]: "I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death."
In Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, also a probate case concerning a challenge to a will brought on the grounds of lack of testamentary capacity and want of knowledge and approval, Lord Neuberger MR, the Master of the Rolls, highlighted the need for caution in dealing with challenges to wills by disappointed beneficiaries, writing at [16]: "…. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs."
This is the Court's judgment following the hearing of a contested probate action brought by one sibling against another in relation to their mother's last will. The issues to be determined relate to whether that will is valid.
Mr D C Price of counsel, instructed by Ms L Gidley, solicitor, appeared for the Plaintiff, whilst Mr D Flaherty of counsel, instructed by Ms J Mullick, solicitor, appeared for the Defendant. I am grateful to the legal representatives for the manner in which they conducted the hearing, and for their industry, and effort, in the submissions, which I have found helpful.
The hearing was listed to proceed, principally, as an attended live hearing. However, by the time the hearing commenced, the parties had agreed that a number of the witnesses, mostly the experts, to whom I shall refer, should give evidence, remotely, by video link using Microsoft Teams. The Court acceded to this course.
The hearing was listed for three days and was completed within that time. Naturally, the Court followed the Supreme Court's then most recent Coronavirus (COVID-19) announcement of 25 January 2022 and required masks to be worn by everyone in the courtroom with the exception of those speaking. The physical distancing rules remained in operation.

[4]

The nature of the dispute

Daisy Ut-Mui Lam ("the deceased") died on 16 November 2019 leaving property in New South Wales. At the date of her death, she was almost 90 years old, having been born in November 1929. Two of her five, now adult, children are the parties in these proceedings.
Whilst litigation involving family members about a will often becomes a proxy for disagreements between the parties about quite different matters occurring during the lifetime of the deceased, this is not such a case. The drama of the family rifts, if any, did not unfold in the evidence. To the contrary, there was scant information about the deceased and members of her family, and about other important matters to which I shall refer. None of the family members gave detailed evidence about the deceased's relationship with her children and the role each played in the deceased's life (except about the Plaintiff and his wife). Perhaps, it is because there was no dispute that the deceased "got along with everyone": Tcpt, 8 February 2022, p 51(30). Counsel for the Plaintiff, in my view correctly, described the evidence as "manifestly deficient".
The limited evidence given by those witnesses does not enable the Court to paint any clear picture of the deceased's personality or abilities. In any event, as a number of the witnesses gave divergent accounts of her mental state and language abilities in October 2019, it will be necessary to examine the evidence bearing upon the execution of the disputed Will with care.
I shall refer to the party/family members as "the Plaintiff" or "the Defendant" where appropriate, or, after introduction, by the name used by the parties. I do so for clarity, and convenience, and without intending to convey undue familiarity or disrespect.
The Plaintiff, Tong Boon Lim ("Boon") brought the proceedings against Sony Tong Yew Lim ("Sony"), the executor, to whom this Court, on 28 September 2020, granted Probate in common form of the deceased's duly executed Will dated 16 October 2019. Two of the other executors named in that Will, being Lily Sok Lei Chan ("Lily") and Ping-Ping Sok Peng Lam ("Ping"), who are also children of the deceased and siblings of the Plaintiff and of the Defendant, renounced probate on 15 July 2020 and 1 September 2020 respectively. In making the grant of Probate of the 2019 Will, leave was reserved to Boon, who is the other executor named, to come in and prove the 2019 Will. I shall, without prejudgment, refer to this Will as "the 2019 Will".
Another child of the deceased, Rose Sok Keow Tan ("Rose"), is neither a party to, nor a witness in, the proceedings, and is not a beneficiary named in the penultimate Will to which reference will be made.
Pursuant to a direction made on 8 February 2021, the Defendant delivered to the Senior Deputy Registrar in Probate, for inclusion in the Court file, the original Probate document to which the 2019 Will was attached. It was tendered, without objection, and marked Ex D1.
The Plaintiff commenced the proceedings by Statement of Claim filed on 24 November 2020. Relevantly, he sought revocation of Probate of the 2019 Will and an order that Probate in solemn form of a Will made by the deceased on 29 July 2011 be granted to him. I shall refer to this Will as the 2011 Will. He also sought an order that his costs, calculated, on the indemnity basis, be paid out of the estate of the deceased.
The original of the 2011 Will was also delivered to the Senior Deputy Registrar in Probate for inclusion in the Court file. It was tendered, without objection, and marked Ex P1.
There was no dispute that the Plaintiff satisfied the foundation of title to be a party to the suit, namely that he has an "interest" in the estate of the deceased. Probate litigation is "interest" litigation and an applicant for revocation of a grant must be able to show that his, her, or its, rights will, or may, be affected by the outcome of the proceedings. An interest sufficient to entitle a person to oppose a grant of probate or letters of administration is sufficient to entitle a person to apply for revocation of a grant of probate or letters of administration: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [212]-[213] (Lindsay J).
Shorn of detail, the Plaintiff alleges that the deceased did not have testamentary capacity when she executed the 2019 Will and that she did not know and approve of its contents. He also alleges "suspicious circumstances". As will be read, principally what underlies the litigation is the fact that, in the 2019 Will, the Plaintiff's share of the estate has been reduced significantly.
Included in the Statement of Claim, as one of the particulars of the lack of knowledge and approval, and of the allegation of "suspicious circumstances", was "[T]he deceased was told that she needed to re-sign her 2011 Will as it had not been signed": Paragraph 8(e).
At the commencement of the hearing, the Court raised with counsel the question whether this particular, if proved, amounted to fraud, which had not been specifically pleaded as a ground for invalidating the 2019 Will in the Statement of Claim.
Uniform Civil Procedure Rules 2005 (NSW) rule 14.4, relevantly, provides: (1) In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. … (3) Matters which must be pleaded pursuant to sub-rule (2) include (but are not limited to) fraud …
In O Wood and G L Certoma, Hutley, Woodman & Wood: Succession: Commentary and Materials (4th ed, 1990, Law Book Co) at 92, the learned authors wrote: "A will may be invalidated either wholly or partly if execution of the will is induced by fraud. Fraud exists where the testator is misled by means of wilfully false statements or by suppression of material facts for the purpose of either gaining benefits under the will or preventing benefits being received by the natural objects of the testator's bounty. Failure to advise the testator as to the effect of his testamentary act may amount to fraud. Generally, the person responsible for fraud is seeking to obtain benefits for himself, but this is not necessarily so."
In Ridges v Watson (Supreme Court (NSW), Powell J, 1 May 1992, unrep), Powell J wrote: "the concept of 'fraud' in this area of the law, although not entirely clear, is, as I understand it, not limited to wilfully false statements, or the suppression of material facts, going to the execution of the will which is impugned, but may extend to statements, or the suppression of material facts, which statements were wilfully false and were made, or which facts were material and were suppressed, for the purposes either of gaining benefits under the will, or of preventing benefits being received by the natural objects of the testator's testamentary bounty."
Reference should also be made to Nock v Austin (1918) 25 CLR 519 at 528; [1918] HCA 73, in which Isaacs J had written that "[T]he doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud, or dishonesty, may be relied on without distinctly charging it" and to Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 at [69], in which Ipp JA (with whom Mason P and McColl JA agreed) wrote that although there were suggestions in some probate cases that it may not be necessary to make positive allegations of fraud, such an approach is contrary to the modern notion of justice and "consistent with the modern approach to allegations of fraud, generally, in probate actions, fraud must be explicitly pleaded".
In response to the Court's question, and without hesitation, counsel for the Plaintiff disclaimed reliance upon fraud as a ground for the invalidity of the 2019 Will and for revoking the grant of Probate: Tcpt, 8 February 2022, p 3(13-17).
Before departing the reference to the Statement of Claim, the Plaintiff, orally, sought leave to amend it, by adding, in Paragraph 8, the following particular of the lack of knowledge and approval: "The deceased did not wear her hearing aids during the conference on 16 October 2019 with Mr Lee. The deceased had longstanding bilateral hearing loss such that she had extreme difficulty hearing conversations in quiet conditions in a room unless she was wearing her hearing aids."
Without opposition from the Defendant, I granted leave to the Plaintiff to amend the Statement of Claim. (To save time and costs, rather than requiring the filing of an amended Statement of Claim, a hard copy of the particular is Ex P4 in the proceedings. It should be read as part of the Statement of Claim.)
The Plaintiff did not make a claim for a family provision order out of the estate or notional estate of the deceased. Nor is there any claim by him alleging a testamentary contract with the deceased, or reliance upon some form of estoppel because of representations allegedly made to him by the deceased.
In the Defence, filed on 18 December 2020, the Defendant disputed the Plaintiff's entitlement to have Probate of the 2019 Will revoked. He also asserted that the 2011 Will had been revoked by the 2019 Will. In a Statement of Cross-Claim, filed on 18 December 2020, he sought a declaration that the 2019 Will constituted the last will of the deceased and sought an order that Probate in solemn form be granted to him.
There was no dispute, in the circumstances of this case, that even though Probate in common form had been granted, there was a sufficient case to raise doubts about the 2019 Will so as to require the probate to be brought in, and that it was for the Defendant to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2019 Will.
Counsel also agreed that if the Statement of Claim were dismissed, it was not necessary to revoke the grant in common form of Probate of the 2019 Will and to make a grant of Probate in solemn form of that will. They accepted that where Probate in solemn form is granted after Probate in common form has been granted, the usual practice of the Court is not to revoke the original grant of Probate, but to make an order that the original grant, and the newly made grant in solemn form, are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [21], and Chisak v Presot [2021] NSWSC 597 at [22]. (I should mention that an appeal in Starr v Miller was dismissed by the Court of Appeal in Starr v Miller [2022] NSWCA 46 and that an appeal in Chisak v Presot was heard on 25 March 2022, but judgment has not been delivered.)
The Defendant accepted that if the 2019 Will were found not to be a valid will, then Probate of the 2019 Will should be revoked, and that there should be a grant of Probate, in solemn form, of the 2011 Will, to the Plaintiff, who is the sole executor named in that will. In such circumstances, even though the parties agreed, the Court, independently, must still be satisfied of the due execution of the 2011 Will.
Notice of the Plaintiff's application for probate of the 2011 Will was published in the NSW Online Registry website on 10 January 2020.
Notice of the Defendant's application for probate had been published in the NSW Online Registry website on 15 July 2020.
The parties provided a Tender Bundle of Documents comprising 63 pages and a copy of the Notice of Proceedings: Ex D2.

[5]

The deceased's Wills

It is next convenient to deal with the various wills made by the deceased. I shall do so remembering what was written by Sir J P Wilde in Parton v Johnson (1868) LR 1 PD 549 at 551: "When several wills are propounded it would be extremely inconvenient to try the validity of the earlier wills before the validity of the will latest in date is decided. The validity of the latest will should be determined in the first instance".
There was no dispute that each of the two most relevant wills to which reference has been made, was professionally drawn; that each was written in the English language; that each had been executed by the deceased in New South Wales; and that each satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW), relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased; (b) the signature was made by the deceased, in the presence of two, or more, witnesses present at the same time; and (c) two of those witnesses attested and signed the will in the presence of the deceased.
Each of the two most relevant wills was also explicitly testamentary in character; was revocatory and dispositive; appointed an executor, or executors, contained incontrovertibly clear specific gifts, and dealt with the entirety of the estate of the deceased. In broad terms, the pattern of distribution was the same although the provision made for each of the deceased's children was different.
The Plaintiff gave evidence, not the subject of challenge, that after the deceased's funeral, he found a copy of the 2019 Will in the deceased's handbag and that it was the first time he had seen a copy of that will.
In the 2019 Will, there was an attestation clause which was in the following terms: "The testator (the testatrix being able to understand the Mandarin Chinese language but having an imperfect knowledge of the English language) after the witness Mei Li who understands both the Mandarin Chinese and the English languages had read the will over to the testatrix in English and then had truly interpreted and read it to the testatrix in the Mandarin Chinese language (which reading and interpreting to the testatrix were both done in the presence of Mei Li and Jeffrey Lee and after which the testatrix stated to Mei Li her understanding and approval of the will, which Mei Li, interpreted to the witness Jeffrey Lee in English) signed in the presence of both of us being present at the same time, and we attested their signature in the presence of them and of each other."
Above the attestation clause was the deceased's signature, written in Chinese, and below it, was the signature of Mr Lee, the solicitor who drafted the 2019 Will, and of Ms Li, the interpreter who attended the conference which took place on the day the Will was prepared and executed.
Relevantly, part of Clause 7 of the 2019 Will provided for the estate to be held on trust, firstly to "pay any and all death, estate or succession duties, debts, legacies, funeral and testamentary expenses and any other costs, fees, or expenses, associated with my death or the administration of my estate" and then to "give the rest and residue of my estate equally between such of Tong-Boon Lim, Lily Sok Lei Chan, Sony Tong Yew Lim and Ping-Ping Sok Peng Lam who survive me and attain the age of 18 years". (Each had earlier been named as an executor.)
The 2019 Will comprised 2.5 pages, with the whole of the second page detailing a list of the powers given to the executors and trustees in Clause 8.
The Plaintiff also gave evidence, not the subject of challenge, that he found a copy of the 2011 Will when he attended at the Burwood branch of the Commonwealth Bank to clear the safety deposit box held by the deceased. It was the first time he had seen a copy of that will.
The 2011 Will comprised 5 pages. Relevantly, the 2011 Will provided: 1. the appointment of the Plaintiff as the sole executor and trustee: Clause 2. 2. a gift, free of all duties, death estate or succession, State or Federal, of "all my monies held in the Commonwealth Bank of Australia to such of my grandsons, Toon Lim and Darren Lim, as shall survive me in equal shares": Clause 3. 3. a gift of all jewellery to be shared equally between Boon and Ping, with the executor making the decision as to the division, in his absolute discretion and finally: Clause 4. 4. the division of the rest and residue, as to 62 per cent to Boon; as to 30 per cent to Ping; as to 3 per cent to Lily; and as to 5 per cent to Sony: Clause 5. 5. Boon was also given the right to buy the Burwood property at a value determined as set out in Clause 6, which right could be exercised by him within 5 years of the date of death, with the proceeds of sale to be paid to the residuary beneficiaries as provided for in Clause 5. 6. Clause 8 provided: "I am giving a greater proportion of my estate to the said TONG BOON LIM in recognition of his living with me and looking after me for many years in my own home and his stated commitment to continue to do so during my old age."
(There was no evidence by any witness that Boon had not continued to live with the deceased, and, with his wife, Alice, had continued to look after the deceased until she died.)
The attestation clause in the 2011 Will was in the following terms: "The Testatrix not being able to read or speak the English language. Hainanese dialect being the customary Chinese language understood by her. The Will was read to her translated into Hainanese dialect in our presence by Doris Lee of 2 Glenarvon Street, Strathfield, whereupon the Testatrix had such that she knew and approved the contents of the Will. It was then signed by the Testatrix in the presence of Doris Lee and Winnie Cheung."
Adjacent to the attestation clause was the deceased's signature, written in Chinese, and below it, was the signature of Winnie Cheung, a secretary, and the signature of Doris Lee, a solicitor.
On the second day of the hearing, without opposition, and with the leave of the Court, the Plaintiff's solicitor filed an affidavit of Doris Lee, the solicitor and one of the attesting witnesses, in which affidavit she confirmed that the 2011 Will had been duly executed.
(Because the Plaintiff had sought a grant of Probate in solemn form of the 2011 Will, he was required to have at least one of the attesting witnesses give evidence in order to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19; Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].)
There were a number of other wills made by the deceased. They are not being propounded by anyone because there is no dispute that the 2011 Will is the last valid will of the deceased if it was not revoked by the 2019 Will. These prior wills are relevant because each reveals the testamentary intentions of the deceased, albeit at different times, and the pattern of her testamentary disposition, all of which is relevant in the proceedings.
I shall refer to the two prior wills in a summary way.
The third last will in time, a copy of which is in evidence is one dated 8 December 2000 ("the 2000 Will"). Following the deceased's death, the Plaintiff found a copy of this Will, which he acknowledged bore her signature, "in an envelope in a drawer of the dressing table in the deceased's bedroom".
The 2000 Will appointed Boon as executor and trustee; gave a pecuniary legacy of $40,000 to Rose; divided the residue of the estate, as to 50 per cent, to Boon; as to 30 per cent, to Ping; as to 10 per cent to Lily; and, as to 10 per cent, to Sony.
The 2000 Will had an attestation clause, which referred to the deceased not being able to read, or speak, the English language and that the Will was read, and translated, to her in the Hainanese language.
Next to the attestation clause was the deceased's signature, written in Chinese, and below it, was the signature of Doris Lee, solicitor and J L Foo, who was referred to as "Housewife".
The first will in time is one dated 4 November 1986 ("the 1986 Will"). The Plaintiff gave evidence that he found a copy of this will, which he acknowledged bore the signature of the deceased, in a separate envelope in a different drawer of the dressing table in which he located the found the 2000 Will. (He also found a copy of his father's will, signed on 4 November 1986. It was not produced.)
In the 1986 Will, the deceased appointed her husband, David Pen-Kung Lam, as the executor of her estate and left the whole of her estate to him if he survived her. If he did not, she left the residue of her estate, as to one-third, to Boon; one-third to Ping; one-sixth to Rose; one twelfth to Sony; and one twelfth to Lily.
There was an attestation clause, but, on this will, it did not refer to the deceased not being able to read, or speak, the English language, or that the will had been read, and translated, to her. Next to the attestation clause was the deceased's signature in English and in Chinese and below it, was the signature of D Yeung, solicitor and an illegible signature of someone described as "Secretary".
According to the evidence, the fact that the deceased had made each of the wills, other than the 2019 Will, appears to have been a secret not revealed to her family, in the sense that none of the children gave evidence of having known about the contents of any of the earlier wills. The Plaintiff, however, gave evidence of having "conversations on multiple occasions" many years before her death about her Will: Tcpt, 8 February 2022, p 50(4-11).
This examination of the testamentary intentions of the deceased, reveals a dramatic change between the 2019 Will and the earlier Wills. As will be obvious, the 2019 Will had several effects. First, by revoking the 2011 Will, it altered the identity of the executor and trustee, making Boon only one of the four executors and trustees, rather than the sole executor; second it lessened the percentage share in the residue of the estate given to Boon, with the result that he received significantly less than he had received in any of the earlier wills made by the deceased; third, it effected a division of the whole of the deceased's residuary estate equally between four of her five children; and fourth, it gave Boon no right to buy the Burwood property at a value determined by the deceased, which right could be exercised by him within 5 years of the date of death.
No witness gave evidence of any conversation with the deceased, which revealed any explanation by her, for the changes. Nor did any witness give evidence of any precipitating event or events, that led, or that might have led, to the subsequent changes of the deceased's testamentary dispositions shortly prior to her death.

[9]

Dramatis Personae

Like all other Probate proceedings, these proceedings pose problems for the Court because the protagonist, the will-maker, is dead. Her personality, state of mind, desires, and prejudices, her relationship with family members for whom she did, or did not, provide, and the reasons or justification for the change in her testamentary dispositions, are all matters that the Court needs to examine, carefully, in order to come to a finding about the validity of the disputed will. With her death, most of these matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J). As stated earlier, in this case, much of that evidence is lacking.
Each of the witnesses who feature in the case and to whom I shall refer, was cross-examined. I shall return to the nature of the evidence given by him, or her, and to my views on his, or her, credibility, respectively, later in these reasons. However, in relation to some witnesses, I shall refer to her, or his, evidence if it was not the subject of real dispute, or if I am satisfied that it has been established on the balance of probabilities.
The Plaintiff gave evidence in a number of affidavits and orally. His version of events was somewhat abbreviated. For example, he did not disclose much information about the deceased in his affidavits. He also gave limited evidence about the events of 16 October 2019 to which I shall return.
Alice Soo Eng Lim is Boon's wife. They were married in 1979 and, thereafter, she, with the Plaintiff lived with the deceased and the deceased's husband, until 1991, when he died. Thereafter, Boon and Alice remained living with the deceased in the Burwood property until her death in November 2019.
Alice gave evidence that she and the deceased "spoke a patois of Teochew, Hainanese, Hokkien and Cantonese as I am not a fluent speaker of Hainanese and speak Teochew as my native language … She did not speak or understand more than a few words of Mandarin… All [the deceased's] social life with friends was conducted in Hainanese". Alice also gave evidence of the role that she and the Plaintiff had played in the life of the deceased whilst they were all living together.
Alice Han is the sister of the deceased. She was born in the Chinese province of Hainan in 1947. She gave evidence that she and her siblings "grew up in Singapore…". She also gave evidence that the deceased was "unable to get an education and, therefore, could only read, or write, at a very simple level". She communicated orally with the deceased very regularly, but only in the Hainanese dialect.
Ms Han's evidence was somewhat limited because she gave evidence that the deceased "did not share with me if she had made a will and did not give details of how she wanted to distribute her estate". As will be read, however, what she had written was explained.
The Defendant gave very brief evidence, which was largely uncontroversial. He had seen the deceased, for about 3 hours, at the Burwood property on 16 October 2019 (the day the 2019 Will was drafted and executed). He did not stay longer, as he was told that the deceased and his siblings, "were going to travel to the city that afternoon to see a solicitor". He said that, on this occasion, he had spoken to the deceased in Mandarin Chinese, and sometimes in the Hainanese dialect, or a combination of both.
The Defendant did not give evidence of any conversations with the deceased, either before, or after, 16 October 2019, about her testamentary intentions.
Lily lives in the ACT, but frequently travelled to Sydney. In about early October 2019, she travelled to Sydney "to stay with the Deceased at her Burwood home as my brother, Tong Boon Lim … who resided with the deceased was about to travel overseas". She also gave some evidence about the events of 16 October 2019 to which I shall return.
Overall, it seems clear from the evidence of the three children, that the deceased being taken to visit a solicitor was discussed shortly prior to, and on, 16 October 2019. Furthermore, as will be read, at the meeting with the solicitor, 3 of the 5 children attended and were there when the 2019 Will was made and executed. As will also be read, none of the 3 children who had attended with the deceased gave evidence, in his, or her, affidavit, of any conversation with the deceased on the way to, or from, the solicitor's office, or otherwise, following the making of the 2019 Will. Indeed, each said that there was none.
Jeffrey Lee is a solicitor. He drafted the 2019 Will and is one of the two attesting witnesses to the deceased's signature thereon. He affirmed an affidavit on 14 January 2021 in which he set out "[T]o the best of his knowledge, information and belief, the details of the circumstances in which the subject will of the deceased dated 16 October 2019 was prepared and executed". There was no dispute that he had not had any previous, and did not have any subsequent, contact with the deceased.
There were documents annexed to Mr Lee's affidavit to which reference will be made. It was not suggested that he was qualified to give, and did not seek any professional, medical opinion about the deceased's cognitive state at the time he met her.
Mei Li is a qualified Mandarin Chinese language interpreter certified by NAATI (National Accreditation Authority for Translators and Interpreters). She did not identify the accreditation NAATI tier into which she fell, although she wrote that she has been providing interpretation services, in the Mandarin Chinese language, for over 37 years.
Ms Li was the other attesting witness to the deceased's signature on the 2019 Will. It was not suggested that she was qualified to give any professional medical opinion on the deceased's cognitive state at the time she met the deceased. There was no dispute that she had not had any previous, and did not have any subsequent, contact with the deceased.
Ms Li acknowledged her signature on the 2019 Will and confirmed, by reference to the Tax Invoice issued for the interpreting services she provided, at the request of Mr Lee, that she had been available between 2:30 p.m. and 5:20 p.m. on 16 October 2019.
In her affidavit affirmed on 26 June 2021, Ms Li wrote that she was "unable to specifically recall the event of, or the parties involved in, the signing of the Will".
There were several expert witnesses called to give evidence and who were cross-examined.
Associate Professor John Cullen, a Senior Specialist, Geriatric Medicine of Concord Repatriation General Hospital gave evidence in an affidavit sworn on 31 January 2022. He stated in a report dated 16 December 2019 that the deceased was admitted to Concord Hospital under his care between 29 August 2019 and 3 September 2019, from 12 October 2019 to 15 October 2019 and from 31 October 2019 until her death from hepatic failure on 16 November 2019.
Bruce James Brew is a Professor of Medicine (Neurology) at the University of New South Wales, practising at St Vincent's Hospital. He was a single expert engaged in the proceedings. He was clearly an "expert witness" within the definition of that expression in r 31.18 of the Uniform Civil Procedure Rules. He did not meet the deceased during her lifetime.
A copy of Professor Brew's report, dated 9 July 2021, his supplementary report, dated 6 October 2021, and his further supplementary report, dated 6 December 2021, were tendered, together, as Ex D3.
Dr Simone Strasser is a Consultant Physician (Hepatologist) "with specific expertise in the care of patients with advanced liver disease and hepatocellular carcinoma (primary liver cancer)". There was no specific order in relation to Dr Strasser's appointment as a single expert. However, no objection was taken to the reading of Dr Strasser's reports and, at the hearing, she was cross-examined. She, too, was clearly an "expert witness". She, also, did not meet the deceased during her lifetime. A copy of Dr Strasser's report, dated 17 October 2021, and a copy of her supplementary report dated 13 November 2021 was tendered as Ex P2.
Dr Hui Ling Xu is a linguist who provided an opinion "on the history of the Chinese language, sometimes referred to as Sinitic language family" and also on Chinese "dialectology". This evidence was said to be relevant because of the assertion that the deceased communicated only in the Hainanese language and was far from fluent in the Mandarin Chinese language. A copy of her report, dated 28 July 2021, was tendered as Ex P3.
Dr Xu was a single expert engaged in the proceedings and was clearly an "expert witness". She also did not meet the deceased during her lifetime.

[10]

Persons who did not give evidence

As a matter of general principle, the unexplained failure by a party to call a witness, may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.
Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.
In Payne v Parker [1976] 1 NSWLR 191 at 201, Glass JA (although in dissent as to the application of the principles to the facts), wrote that whether the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.
As has recently been written by Rees J in In the matter of Mediation & Online Dispute Resolution Operating Network Pty Ltd [2022] NSWSC 5 at [7]: "An adverse inference may be drawn in respect of the absence of documentary evidence to support a party's case, where the party might be expected to be in possession of documents to corroborate their account: Jones v Dunkel (1959) 101 CLR 298 at 320; [1959] HCA 8 (Windeyer J), citing with approval John Henry Wigmore, Wigmore on Evidence (3rd ed, 1940), vol. 2, page 162: "The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party …"; Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17 at [134] (Callinan J); Ronchi v Portland Smelter Services Ltd [2005] VSCA 83 at [44] (Eames JA, with whom Buchanan JA agreed); Challenger Property Asset Management Pty Ltd v Stonnington City Council (2011) 34 VR 445; [2011] VSC 184 at [131]-[132] (Croft J); Sino-Resource Imp & Exp Co Ltd v Oakland Investment Group Ltd [2018] QSC 98 at [112] (Henry J)…"
Furthermore, as Gleeson J explained in BCI Finances Pty Ltd (In Liq) v Binetter (No 4) (2016) 348 ALR 227; [2016] FCA 1351 at [125], relevantly affirmed on appeal in BCI Finances Pty Ltd (In Liq) v Binetter (2018) 362 ALR 597; [2018] FCAFC 189: "All evidence "is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970. This maxim also bears upon the appropriateness of deciding whether a fact has been proved when only limited evidence is available. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [14], [15], Hodgson JA (with whom Beazley JA agreed) said: [I]n deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision … In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so …"
The deceased's daughter, Rose, did not give evidence and did not, otherwise, play any role in the proceedings. There is no suggestion that she was present in the Burwood property on 16 October 2019, or that she accompanied the deceased and 3 of her siblings to see Mr Lee. She is not a beneficiary named in the 2019 Will, or in the 2011 Will, but she did receive a pecuniary legacy in the 2000 Will, and a one-sixth share of residue (as a substitute beneficiary) in the 1986 Will.
I am satisfied from the evidence that, on 2 September 2021, a Notice of Proceedings was served upon Rose. (That evidence consists of an email from the Plaintiff's former solicitor, acknowledging that instructions had been received to accept service thereof: Ex D2/62-63. A copy of the Notice of Proceedings was also included as part of the exhibit.) On the first day of the hearing, her husband, Dr Tan, was identified as being present in Court: Tcpt, 8 February 2022, p 9(38-46).
I do not draw any inference in respect of Rose's absence since there is no suggestion that she was able to give any evidence that would elucidate a particular matter going to the matters in dispute.
The deceased's daughter, Ping, did not give evidence in the proceedings and her failure to do so was unexplained. A number of witnesses gave evidence that Ping was living in Hong Kong with her family. The Defendant suggested that there may have been a problem with "the COVID virus situation": Tcpt, 8 February 2022, p 72(21-28).
The Defendant was unaware of any reason why Ping could not have provided an affidavit or have given evidence remotely by video-link: Tcpt, 8 February 2022, p 72(15-45).
As will be read, she was the person who was said to have had some discussions with Lily; who had contacted Mr Lee to arrange for him to meet with the deceased; who had discussions with her siblings about what was to occur; and, with Boon and Lily, who was present at the conference held at Mr Lee's office on 16 October 2019.
Whilst Ping may not have been present during all of the discussions between Mr Lee, the deceased, and the interpreter, there was evidence that she had been present, with her two siblings, when they are said to have re-entered the conference room and when the broad content of the 2019 Will was said to have been discussed.
As will be read, she was also the person to whom the invoices of the solicitor, and of the interpreter, were emailed, although the solicitor's invoice itself was addressed to the deceased: Ex D2/47-53.
It is clear that Ping was a key participant in the events leading up to the making of the 2019 Will. Presumably, she could have given material evidence of the events that occurred both before, at, and after, the conference with the solicitor, in relation to the 2019 Will. One might have expected her to be called by the Defendant. Yet, Ping might have been called by the Plaintiff, because the provision made for her in the 2011 Will was greater than the provision made for her in the 2019 Will. She may have been able to give evidence about the matters referred to above that would have supported the Plaintiff's case. It is curious that neither party called her to give evidence.
I shall bear in mind that Ping was not called as a witness by either party. However, the determination of "[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led": Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165]; Starr v Miller [2022] NSWCA 46 at [69] (Mcfarlan JA).

[11]

Affidavits of different experts served shortly before the hearing

On Sunday 6 February 2022, the Plaintiff's solicitor served an affidavit of Rakhee Chandra, described in the affidavit as "the Head of Audiology at Amplifon". She had been asked "to prepare a short report on [the deceased's] hearing loss".
The deceased, so it was said, had her hearing tested at Amplifon in September 2007, March 2013, June 2016, and in November 2018. Ms Chandra had not met the deceased and was not the person who had conducted the tests to which she referred in the affidavit. However, the conclusions reached were set out in the report and were based on those records.
Counsel for the Plaintiff provided no satisfactory, or other, explanation why the report had not been sought earlier in time and, when sought, had been sought without notice to the Defendant, or to the Court. Indeed, there was no evidence of when instructions were provided to Ms Chandra and why the matter had not been foreshadowed with the Defendant's legal representatives.
Counsel for the Defendant, somewhat faintly, opposed leave being granted to read the affidavit. He submitted that no application to adduce expert evidence on this topic had been sought, or granted; that a copy of the report had been served 1 working day prior to the commencement of the hearing; and that the particulars relied upon in the Statement of Claim did not include any assertion that the deceased suffered significant, or any, hearing loss that would lead her to not understand what was said to her at the time she gave instructions for, or when she executed, the 2019 Will.
Naturally, the late service of the report rendered the Defendant unable to obtain any expert evidence in response.
(It was as a result of the debate on the topic of the admissibility of this report that the Plaintiff sought to amend the Statement of Claim and add the particular to which reference has already been made.)
Ultimately, after argument, with some hesitation, I allowed the affidavit to be read as, it seemed to me, that there was really no dispute that, in 2019, the deceased suffered hearing loss, and that she was required to wear hearing aids, which she did not like doing. There was also no dispute that she had not been wearing hearing aids when she met with Mr Lee on 16 October 2019.
Ms Chandra was cross-examined.
The Defendant also sought to read an affidavit sworn on 31 January 2022 from Dr Joseph Emmanuel, a medical practitioner and lecturer at the University of NSW. The deceased had been a patient of his practice from 1994 until her death. Annexed to his affidavit was a copy of a report dated 16 December 2019. The Plaintiff objected to this affidavit being read.
I did not permit the Defendant to read this affidavit, principally because the report related to a matter about which other expert evidence had been given; it had been served so late; and because Dr Emmanuel's medical records, which might have been relevant, were not produced as they had not been the subject of a subpoena by the Defendant's legal representatives. I also considered the report to be of limited weight as it recognised that the deceased's cognition had not been tested at the relevant time: Tcpt, 8 February 2022, p 23(31)-24(10).

[12]

Some factual background

In order to set the dispute in its proper context, it is next necessary to set out an overview of the factual background which led to the dispute. As with all probate disputes, a proper understanding of the events is critical.
The remarkable things about this case are the paucity of evidence, despite the number of witnesses, and the relatively few contemporaneous documents upon which the Court can safely rely in order to test the recollection of a number of the witnesses. Furthermore, most of the experts had not met the deceased during her lifetime and very few of the contemporaneous medical records were tendered.
As I have already stated, virtually no evidence was given, by either of the parties, or other family members, about the deceased's life, or about her character. For example, the Court knows virtually nothing about her nature or her personality traits. There was, however, some information given about her.
I have taken what follows, in part from the evidence and, as to some dates, from a chronology provided by counsel for the Defendant which did not appear to be in dispute.
The Plaintiff gave evidence that the deceased did not attend school. He wrote that she "grew up during the Japanese war and was unable to receive an education".
It seems that the deceased, for about 36 years (1929 to mid-1965), lived in Singapore. She then lived in Beijing for about 3 years (mid-1965 to early 1968), in Macau, for about 7.5 years (mid 1968 to late 1975) and in Sydney for 44 years (late 1975 until her death in 2019).
The deceased married David, the father of the five children, on a date not disclosed in the evidence. As stated, he died in July 1991. The deceased did not remarry, or enter into a de facto relationship, thereafter.
The deceased did not work outside the home and did not drive.
There is no evidence of the deceased having attended any English classes after coming to Australia. It is clear that she was neither fluent, nor literate, in the English language.
On a date not known, the deceased and David purchased a property at Burwood. It was in this property that the deceased lived from that time until her death. As was previously stated, the Plaintiff and his wife, Alice, lived there from about 1979.
Whilst there is no dispute that the deceased conversed in Hainanese, the extent of her proficiency in Mandarin Chinese was a matter of real contention. From the evidence of Dr Xu, Chinese is a language, whilst Mandarin and Min is each one of the seven major dialect groups or branches of that language. Hainanese is a further sub-dialect of the Min (Southern Min) dialect group and is spoken in the southern part of China.
The deceased was admitted to Concord Repatriation General Hospital on 29 August 2019 due to bleeding. She was discharged on 3 September 2019, after having been diagnosed with pneumonia and being treated with antibiotics and provided with an inhaler. The bleeding was managed with tranexamic acid, which I understand to be a medication used to treat or prevent excessive blood loss. She was admitted, again, to hospital on 9 October 2019, on this occasion, with extensive bruising to her right arm. She was discharged the same day. She was re-admitted on 12 October 2019 due to her upper right arm still being swollen, with continuing pain. She was discharged on 15 October 2019. She was admitted to hospital, for the last time, on 31 October 2019 where she died some weeks later.
At the time of making the 2019 Will, the deceased had a history of chronic hepatitis B, for which she was being treated with an anti-viral medication, Entecavir. She also had cirrhosis of the liver.

[13]

The principles regarding evidence

In Robertson v Barker [2021] NSWSC 1682 at [77]-[78], [132]-[147], I noted some general principles which I consider bear repetition, and which should be kept in mind in coming to conclusions on the issues in the case: "There is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker's capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records. This does not mean that there is no wisdom in the view that "the vital evidence is very often not given by medical experts, but is given by experienced lay observers … [and] that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes" (Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Young JA)); or that an experienced solicitor's evidence is capable of being "valuable evidence of testamentary capacity" because an "experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path": Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing). … It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [74]-[75]: "… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. 'Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough': John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66: 'Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.' Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will. It will be necessary to repeat some of the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence. For the most part, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state, of the deceased at various times. It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly confirm or deny statements made. That need may even be greater where the person giving evidence of the conversations has a self-interest. McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20]. Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined." Also, I refer to what was written in Wesley v Wesley (1998) 71 SASR 1, by Debelle J at 5: "Evidence might also be led from persons other than the testator's solicitor to whom the testator had spoken either before or after the execution of his will. Care must be taken with such evidence. The evidence may be tainted by self-interest or by a desire to enable a particular person to benefit. Alternatively, a testator who has expressed an intention to benefit a person not named in the will might have been intending to appease a member of his family. It is not uncommon in human experience for a testator to give divergent accounts of his will to different persons either to maintain harmony or to curry favour with family or friends. Each case will have to be determined on its own facts and each will suggest the kind of caution which should be exercised." In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that: "... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." His Honour's observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt [2014] NSWCA 47 at [56]. I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at [107]; [1989] HCA 60: "The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling." … Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply "emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed": Kogan v Martin [2019] EWCA Civ 1645. Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J). I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd's Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J)."

[14]

The evidence of the family members

The Plaintiff swore four affidavits in these proceedings, being one sworn 28 January 2021, comprising 38 paragraphs, and spanning 6 pages; an affidavit sworn 14 April 2021, comprising 9 paragraphs, and spanning 3 pages; a third affidavit, sworn 15 January 2022, comprising 4 paragraphs, and spanning 2 pages; and an affidavit in reply sworn 29 January 2022 comprising 16 paragraphs, and spanning 2 pages.
It is clear that the Plaintiff has a significant financial interest in the result of the case since his interest in the 2011 Will is substantially greater than it is in the 2019 Will. I have borne this in mind when assessing his evidence.
Boon was born in November 1951, in Singapore, but he has lived in Australia since 1976: Tcpt, 8 February 2022, p 51(46)-52(3). He had also lived for about 3 years in Beijing. He maintained that he had not learned to speak Mandarin Chinese whilst he lived there. He works as a small business operator in food distribution.
Boon had a close and loving relationship with the deceased and gave unchallenged evidence that, since 1979, he had lived in the Burwood property with his wife and parents. During this time, they had looked after, and had financially supported, the deceased: Affidavit, Tong Boon Lim, 28 January 2021 at par 4. He said that from 1977, he had made monthly repayments of $600 to his parents to assist with the repayment of the mortgage: Affidavit, Tong Boon Lim, 14 April 2021 at par 5.
He asserted that from 2015, he and his wife had provided more daily care for the deceased, including feeding her, administering medication, and taking her to medical appointments. He also said that he had paid for all her expenses, the running costs of the Burwood property, and had provided her with an allowance of $600 per month: Affidavit, Tong Boon Lim, 28 January 2021 at par 5.
When the deceased's health declined further in 2019, Boon arranged for a carer to come 5 times a week to assist in bathing the deceased: Affidavit, Tong Boon Lim, 28 January 2021 at par 5.
Boon stated that in about 2006-2007, the deceased had been diagnosed with breast and liver cancer. In addition, she suffered from arthritis, eczema, lymphoedema and hearing loss: Affidavit, Tong Boon Lim, 14 April 2021 at par 7.
He gave evidence, which was also not disputed, that the deceased had been admitted to Concord hospital due to extreme pain in her limbs on 9 October 2019, had been discharged the next day, but had been readmitted on 12 October 2019, and discharged on 15 October 2019: Affidavit, Tong Boon Lim, 28 January 2021 at pars 6-7, 10.
Boon wrote that after the deceased was discharged, she complained that she was in severe pain and she would rarely speak. He stated that she was taking a great deal of medication and that the medication, at this time, made her drowsy and tired: Affidavit, Tong Boon Lim, 28 January 2021 at par 10; Affidavit, Tong Boon Lim, 14 April 2021 at par 9.
On 9 October 2019, Boon flew to Singapore for five days and returned to Sydney on 14 October 2019: Affidavit, Tong Boon Lim, 28 January 2021 at pars 13-15. Upon his return, Lily approached him and asked him to drive the deceased into the city to see a solicitor. He said that she told him "something about Mum had not signed her 2011 Will".
On this topic, Boon, initially, said that Ping had told him that the deceased was visiting Mr Lee to sign her will: Affidavit, Tong Boon Lim, 28 January 2021 at par 19. He maintained in cross-examination that the conversation had occurred: Tcpt, 8 February 2022, p 40(25-49). Despite having written in his affidavit that he had first been asked to do so on 14 October 2019, in cross-examination, Boon maintained that the first time he had been asked was on 16 October 2019.
Boon gave evidence that he did not speak to the deceased about this event. When asked why he had not done so, he simply answered "Because this is what my sister told me": Tcpt, 8 February 2022, p 34(9-21). He added, when asked again, that he did not do so because "she's filled with - full of pain and she's so weak, sleepy": Tcpt, 8 February 2022, p 34(36-42), p 42(11-19).
He also said that he did not ask the deceased, or either of his sisters, about the purpose of the visit to the solicitor. He maintained that he "trusted his sister that we are going down to sign the old will": Tcpt, 8 February 2022, p 36(11-16). (This statement, it was said, related to his own state of mind in the lead up to taking the deceased to the solicitor's office, rather than as to its truth: Tcpt, 8 February 2022, p 38(22-24).)
In answer to a question from the Bench, he stated that he had said something to his sisters about the deceased being very sick, frail and in pain. However, a conversation along those lines did not appear in any of his affidavits. Nor did he explain why he had agreed to, and did, drive the deceased to see a solicitor when she was in that condition.
In the circumstances of the case, and Boon's evidence about the deceased's condition, the lack of any discussion with the deceased, his siblings, and with Mr Lee is difficult to comprehend.
On 16 October 2019, Boon drove the deceased, Lily, Ping and Ping's daughter (a minor), to the city to meet Mr Lee at his office. He said that there had been no conversation, before the deceased entered the car, and none whilst in the car, on the way, about the purpose of the visit to the solicitor: Tcpt, 8 February 2022, p 36(42-49).
Boon maintained that the deceased was very quiet on the drive to the solicitor's office and during the 20 to 30 minute trip, there was no conversation with the deceased about why they were going there.
Boon stated that he had never seen a copy of any of the deceased's previous wills before her death. He said that the deceased had never discussed the details of her will with him, other than once, when she said that the will would allow him to continue to live in the Burwood property after her death: Affidavit, Tong Boon Lim, 28 January 2021 at par 17.
But, in cross-examination, he said that he and the deceased had spoken many times about her will, many years before her death, and that the last time she had done so was "two weeks before she passed away": Tcpt, 8 February 2022, p 50(04-24).
He also maintained that the deceased did not have knowledge of the Mandarin Chinese, or English, languages, other than she could say, and understand, basic words including: "hello, goodbye, yes and no." He stated that the deceased had some basic knowledge of Cantonese and Hokkien, but that Hainanese was the only language in which she could effectively communicate: Affidavit, Tong Boon Lim, 28 January 2021 at pars 35-37.
The Plaintiff explicitly denied that the deceased ever spoke to Sony, Lily or any other family members, in a combination of Hainanese and Mandarin: Affidavit, Tong Boon Lim, 29 January 2022 at pars 9 and 14.
He also stated that the only languages that he spoke were Cantonese and English, although he is able to speak, and understand, a few simple words in Mandarin Chinese. He stated that he did not know the Mandarin Chinese words which meant "equal" or "equality": Tcpt, 8 February 2022, p 32(35-37).
Bearing in mind the evidence quoted above, he did not explain, in any of his affidavits, or otherwise, how he and the deceased communicated with each other.
Boon gave evidence that the deceased was not wearing her hearing aids when they left for the solicitor's office. He said this was because generally she "refused to put it [the hearing aids] on" because they made an unpleasant noise: Affidavit, Tong Boon Lim, 14 April 2021 at par 8; Tcpt, 8 February 2022, 53(20-24). He accepted that, at no point before leaving the Burwood property, or otherwise, did he raise, with the deceased, the fact that she was not wearing her hearing aids: Tcpt, 8 February 2022, p 33(37-46), p 42(31-41). Again, he provided no reasons why he did not do so when he knew that she was going to see a solicitor, who, presumably, would speak to her.
Boon gave evidence that when they arrived at Mr Lee's office, he wheeled the deceased, who was then in a wheelchair, into the conference room. The other family members also went into the conference room. He said that a short time later, they left, and waited outside, whilst the deceased remained there with Mr Lee and the interpreter: Affidavit, Tong Boon Lim, 28 January 2021 at pars 20-21.
He also gave evidence that, after a period of time, Mr Lee came out to the reception area to confirm with the family members, the spelling of his, and her, names respectively: Affidavit, Tong Boon Lim, 28 January 2021 at par 22. In cross-examination, he explained that he did not write down his own name and address, saying that Lily and Ping wrote down the details of each of the children: Tcpt, 8 February 2022, 44(15-20), 45(23-33); Ex D2/17.
Boon stated that Mr Lee came back later to advise that the meeting was finished, and that he then went back into the conference room, only to push the deceased's wheelchair outside: Affidavit, Tong Boon Lim, 28 January 2021 at par 23. He specifically denied that he had been shown a copy of any will or that he had been told about the contents thereof.
Although in his affidavit in reply, Boon stated that he did not recall the deceased telling him, Ping and Lily why she was leaving Rose out of her will at the meeting with Mr Lee, in cross-examination, he denied being told that Rose was being left out of the will. He maintained that he had no conversation with anyone when he went into the conference room to escort the deceased out: Tcpt, 8 February 2021, p 47(24-27), p 49(16-18), 54(43-50). The Plaintiff simply said: "I did went back when they finish the meeting where I get my mum in a wheelchair and I bring her out".
Pausing there, I do not accept Boon's evidence on this topic. Mr Lee and Lily, each gave evidence of Ping, Lily, and the Plaintiff, being ushered back into the conference room prior to the 2019 Will being signed. They also gave evidence that there had been a discussion, whilst the family members were present, about the terms of the will, which had not yet been signed. Whilst the version of what was said, and by whom, may have differed, the complete omission, from Boon's affidavits, and then his denial, in the witness box, of returning to the conference room and there having been some discussion about the contents of the 2019 Will, affects his credit.
Whilst Boon also denied seeing the deceased sign the 2019 Will (Affidavit, Tong Boon Lim, 29 January 2022 at pars 5, 11-13), I do not find this evidence to be untrue. The other witnesses were equivocal about this aspect of the event.
Boon also gave evidence, with which Lily agreed, that his mother did not speak on the way home. He also said that she did not mention her visit to Mr Lee at any later point in time: Affidavit, Tong Boon Lim, 28 January 2021 at par 24. There is no reason to disbelieve his evidence on this topic as none of the other witnesses gave different evidence on this topic.
Boon did not tell Mr Lee about the deceased being sick, that she was sleepy, or that she could not hear because she was not wearing her hearing aids. He had no direct conversation with Ms Li, the interpreter, a matter not the subject of dispute.
Having seen and heard Boon, I was left with the impression that he did not reveal all that he knew about the events that had occurred at the solicitor's office on 16 October 2019. However, apart from this important aspect, much of his evidence was not the subject of real challenge.
Importantly, Boon was not subjected to any cross-examination about any event, or events, that might have led the deceased to change her will. It was not suggested to him that the reasons that she had expressed, in Clause 8 of the 2011 Will, for giving him a greater proportion of her estate, had altered, because he was no longer living with her, no longer looking after her in her own home, or had altered his commitment to continue to do so during her old age.
The Plaintiff's wife, Alice gave evidence that after her marriage in 1979, she moved into the Burwood property with Boon and his parents. She said that she was able to speak Hokkien, Teochew, Cantonese and English, as well as a few words of Hainanese and Mandarin.
She remembered assisting the deceased with the housework and recalled that the Plaintiff contributed to the payments of the mortgage and to the costs of running the household: Affidavit, Alice Soo Eng Lim, 14 April 2021 at pars 2-3.
Alice stated that when the deceased became unwell, she would stay at hospital with the deceased, take her to all her medical appointments, and assist her with her personal care. As the deceased became frailer, Alice said that she attended to the cooking and household tasks, drove the deceased to her outings and holidays, and was authorised to operate the deceased's bank accounts: Affidavit, Alice Soo Eng Lim, 14 April 2021 at pars 5-7.
In the 12 months prior to the deceased's death, Alice stated that the deceased "was totally dependent on me as a carer to feed her, dress her and wash her. She could not move from place to place without help": Affidavit, Alice Soo Eng Lim, 14 April 2021 at par 7.
Alice observed that in the deceased's final months, she spent most of her time sleeping; that she had lost interest in her surroundings; and that she did not initiate conversation: Affidavit, Alice Soo Eng Lim, 14 April 2021 at par 10.
Alice believed that the deceased did not understand any more than a few words of Mandarin Chinese and that she could not have understood anything complex if it were said to her in Mandarin Chinese. She observed that the deceased's social conversations were held in Hainanese: Affidavit, Alice Soo Eng Lim, 14 April 2021 at par 9.
Alice stated that while the deceased required hearing aids to hear what was going on, she did not wear them often because she "hated" wearing them. This was said to be due to feedback noise: Affidavit, Alice Soo Eng Lim, 14 April 2021 at par 8. In cross-examination she admitted that the deceased could "hear a little bit" without her hearing aids, but the speaker had to speak loudly: Tcpt, 8 February 2021, p 61(26-28).
Much of what Alice stated was corroborated by other evidence. Her cross-examination was limited, and it related mainly to how she and the deceased would communicate. Alice was not asked any questions about the deceased's ability to speak, or understand, Cantonese.
Alice did not give any evidence of being present at any conversation with the deceased, or with any other family member, including the Plaintiff, regarding the events of 16 October 2019. Nor did she corroborate the Plaintiff's evidence regarding the occasion when the deceased was alleged to have said that the will that she had would allow the Plaintiff to continue to live in the Burwood property after her death.
Like Boon, Alice was not subjected to any cross-examination about any event, or events, that might have led the deceased to change her will.
I am satisfied that Alice was endeavouring to tell the truth and that her evidence was not tainted by the fact that Boon had much to gain in successfully challenging the validity of the 2019 Will.
Alice Han, the deceased's sister, gave evidence. Her affidavit, which was sworn on 28 January 2021 comprised of 16 paragraphs, spanning 3 pages. She said that when she spoke with family members, they would speak only in Hainanese, even though she could speak a little Cantonese Chinese and Mandarin Chinese. She said that she did not speak English well. The family members had never communicated with each other in Mandarin Chinese.
Ms Han stated that since living in Australia, she had only known the deceased "to have a very limited knowledge of the Mandarin and Cantonese Language". She said that she "did not believe that [the deceased] could understand more than very basic conversations": Affidavit, Alice Han, 28 January 2021 at par 6. She said that the deceased could understand simple Mandarin Chinese words.
Ms Han stated that during her telephone conversations, the deceased mentioned, on many occasions, that Boon and his wife "constantly supported, cared and provided, for her and that she would leave him a big share of her estate to thank him for always caring for her": Affidavit, Alice Han, 28 January 2021 at par 10.
Ms Han recalled that the deceased mentioned that Boon deserved "a bigger share than his siblings" and that the deceased had said that she intended that Boon would continue to live in the Burwood property after her death: Affidavit, Alice Han, 28 January 2021 at pars 13-14.
In her affidavit (at [11]), Ms Han recalled a telephone conversation with the deceased simply said to have occurred "[b]efore her death", where the deceased said: "I am lucky to have my eldest son who has looked after me for so many years, he takes me to the doctors and supports me at home. If I make a will, I will have to give a big share to Boon because he has looked after me."
In cross-examination, Ms Han admitted that this conversation, and the others to which she had referred in her affidavit, had occurred two to three years before the deceased died: Tcpt, 8 February 2022, p 67(5-49). However, later she stated that some of the conversations had occurred before she went into hospital, but she did not identify the hospital admission to which she was referring.
I accept Ms Han's evidence about the conversations with the deceased although when, precisely, these conversations occurred, was a little vague. They are corroborated by the unchallenged evidence of Boon and his wife about what they did for the deceased and because it had not been suggested that the sentiment expressed by the deceased had changed.
Sony, the Defendant, was hardly cross-examined at all. I found him to be the most open of the family members, although his evidence about the events of 16 October 2019 was limited. He, too, had made only one affidavit, being an affidavit sworn on 20 January 2021, which comprised 7 paragraphs, spanning 3 pages. As stated, it is clear that he has a significant financial interest in the result of the case since his interest in the 2019 Will is substantially greater than it is in the 2011 Will. I have borne this in mind when assessing his evidence.
In cross-examination, Sony stated that, generally, he had spoken with the deceased in Hainanese dialect, Cantonese Chinese and Mandarin Chinese, for about 50 years. He denied that the deceased mostly spoke Hainanese, or that she could speak very little Mandarin Chinese. He denied that "she could really only say hellos and make greetings in Mandarin": Tcpt, 8 February 2022, p 71(45)-72(13).
He gave evidence that on the morning of 16 October 2019, he had visited the deceased at the Burwood property. He said that he knew, from earlier discussions with the deceased and his siblings, that they were going to visit a solicitor in the city that afternoon. However, he decided not to accompany them because he was not feeling well: Affidavit, Sony Tong Yew Lim, 20 January 2021 at par 6; Tcpt, 8 February 2022, p 73(43-47).
He said that he did not have any detailed conversation about what was to happen that day when Boon was present, although the other children of the deceased who were there, apparently, had discussed the deceased being taken to the solicitor's office.
Sony gave evidence that Ping had said, in English and in Cantonese, that the deceased wanted to make a will and that she had requested them all to accompany her to the solicitor's office. Ping had not revealed anything about the contents of any will that the deceased might make, or whether there were to be changes to any prior will that she had previously made.
Sony observed that the deceased seemed alert and aware of what was going on around her: Affidavit, Sony Tong Yew Lim, 20 January 2021 at par 7.
In cross-examination, Sony repeated that he was not aware that the deceased had made any previous wills and had believed that this was the first time she had made a will: Tcpt, 8 February 2022, p 74(32-37).
Sony gave no specific evidence of the deceased, herself, saying anything to him about making a will. However, he gave evidence that after the deceased had seen the solicitor, she telephoned him "wondering why I didn't make the trip down". He told her that he had suffered from a headache and that "Lily, Ping, and Boon, accompanied you, so that's why I excuse myself not going down there…". He also said that he "didn't realise she was so determined want me to go down there, so that's the reason why I explained it to her on the phone": Tcpt, 8 February 2022, p 74(12-17).
In light of the deceased having telephoned him, following having seen a solicitor, it seems surprising that they did not speak about what the deceased had done at the solicitor's office or the terms of any Will that she had made when there.
Lily who gave evidence in the Defendant's case, made only one affidavit which was sworn on 21 January 2021. It comprised 14 paragraphs, spanning 4 pages.
She clearly had an interest in supporting the Defendant's case because the 2019 Will provides substantially greater provision than the provision made for her in the 2011 Will. I have borne this in mind when assessing her evidence.
Lily asserted that the deceased spoke to her, and others, in Hainanese, also in Mandarin Chinese, or in a combination of both. She stated that the deceased could also speak Cantonese Chinese and had some limited English: Affidavit, Lily Sok Lei Chan, 21 January 2021 at par 14.
Lily stated that whilst the deceased was in hospital, she had said that "she need to change her will" or "I need to make another will" and that the deceased asked her to find a lawyer: Affidavit, Lily Sok Lei Chan, 21 January 2021 at par 5.
Lily said that she knew that the deceased had made another will but did not know on what date. She did not know that Boon was to receive much more under the deceased's earlier Will.
Lily also gave evidence that she did not ask whether the deceased already had a lawyer. Nor did she ask the deceased who had made the earlier will, about the contents of her earlier will, or how she intended to change that will. She did not give evidence of any reasons stated by the deceased for the need to make another will.
Lily explained that as she was only aware of solicitors in the ACT, she rang Ping, at some time, thereafter (the precise timing was unclear), and asked her to recommend a solicitor in Sydney: Affidavit, Lily Sok Lei Chan, 21 January 2021 at pars 5-6. Subsequently, Ping told her that an appointment for the deceased had been made to see Jeffrey Lee, solicitor, whose office was situated in the city of Sydney: Affidavit, Lily Sok Lei Chan, 21 January 2021 at par 7.
Lily said that she did not tell any of the siblings about the appointment and that she left that to Ping because she had organised it: Tcpt, 8 February 2022, p 78(39-41). She denied having had a conversation with the Plaintiff on his return to Australia, on 14 October 2019, in which she said that the deceased had to sign a will, or that she needed to change her will or that she wanted to make a new will.
Lily said that she had said to "all my brother [sic] and sisters, Ping have organised it. So Ping was the one telling them where, and the … time and the date.": Tcpt, 8 February 2022, p 78(40-41).
There was no dispute that on 16 October 2019, Lily travelled with the deceased, with Ping and her minor daughter, and with the Plaintiff, who drove, to the city to meet with Mr Lee. Lily agreed that there was not much discussion, in the car, on the way to the appointment and that it was "a quiet trip": Tcpt, 8 February 2022, p 80(39-48).
Lily maintained that she did not have any conversation with Mr Lee before the meeting on 16 October 2019. Lily stated that when they arrived at the solicitor's office, there was a quick greeting and that then Mr Lee went into the conference room with the deceased and the interpreter, whilst the family members waited outside: Affidavit, Lily Sok Lei Chan, 21 January 2021 at pars 8-9.
Lily gave no evidence about Mr Lee emerging during the conference to ask for the name and address of each of the deceased's children, or that any document was written containing that information. Rather, she said that, after approximately an hour, Mr Lee came out and asked the family members to join him in the room.
Once the family members went into the conference room, the deceased said "I don't want to sign until you all know what is in it. I want you to all read it.": Affidavit, Lily Sok Lei Chan, 21 January 2021 at pars 10-11. Lily did not reveal what language the deceased spoke when they entered the conference room.
Mr Lee was said to have then provided each of the children with a copy of the will to read. Whilst the deceased also had a copy, it lay on the table. The deceased then asked her children, in the Hainanese language: "Are you all happy with it?" following which Lily observed that each responded affirmatively, either saying "yes" or with a nod of the head: Affidavit, Lily Sok Lei Chan, 21 January 2021 at par 11. The copy will, received by each of the children, was left on the table when the children left the conference room.
Although in her affidavit, Lily had said that the deceased then signed the Will in the presence of Mr Lee, the interpreter and the three children, in cross-examination, Lily gave slightly different evidence. She said she could not actually remember whether she saw the deceased sign the 2019 Will: Tcpt, 8 February 2022, p 89(18)-90(11).
Lily observed that the deceased was alert and appeared to know why she was in Mr Lee's office: Affidavit, Lily Sok Lei Chan, 21 January 2021 at par 14. She did not describe the observations that had led her to describe the deceased in that way and it was not the subject of cross-examination.
Lily gave evidence that when the deceased spoke to her, or to others, in Lily's presence, she spoke in either Mandarin, or the Hainanese dialect, or a combination of both. She also said that the deceased could speak Cantonese, but she did not say whether the deceased was fluent.
Lily admitted that Boon and his wife had been looking after the deceased for many years, and she thought that they had provided care and assistance to the deceased. She confirmed Boon's evidence that at a time closer to the deceased's death, carers had been retained to assist with the deceased's care. On this topic, I had the impression that Lily, intentionally, was attempting to play down the care and attention that Boon and his wife had provided to the deceased over many years.
As with the Plaintiff and the Defendant, what is surprising in Lily's evidence, is the lack of detail, not only about the deceased, but also about the precise sequence of events whilst at Mr Lee's office and the lack of any discussion, with the deceased, about the whole of the will-making event before, or after, it occurred. Like others, Lily gave no evidence about any matters involving Boon, his wife, or others, that might have motivated the deceased to change the 2011 Will.
The apparent lack of discussion between any of her children and the deceased about what was to occur, and what had occurred, on 16 October 2019, is hard to comprehend. (I have wondered whether there may be cultural reasons involving the view that death should not be openly discussed, and that wills and formal discussions about inheritance should not be the subject of conversation. However, this speculation appears inconsistent with the evidence, quoted above, about the discussions that one or other of the witnesses had with the deceased about her will.)
There is one particular matter, in Lily's evidence, that requires mention. In re-examination, Lily stated that following the meeting with Mr Lee, the Plaintiff drove them to the Casino, where they had a buffet dinner and that the deceased played the poker machines: Tcpt, 8 February 2022, p 91(26)-92(30).
On the following day of the hearing, Lily was recalled in order to correct her evidence on the topic of the date of the trip to the Casino. She gave evidence that following the adjournment of the hearing, she had talked to her son and had then realised that she had confused the date of the visit to the Casino. In fact, the visit to the Casino had occurred on 17 October 2019, the day after the visit to the solicitor's office: Tcpt, 8 February 2022, p 131(20-40).
Counsel for the Plaintiff did not submit that Lily had intentionally given false evidence in order to assist the Defendant's case. He seemed to accept that Lily had made a genuine mistake: Tcpt, 9 February 2022, p 133(26-47), 135(9-18); 10 February 2022, p 178(21-29).
In the circumstances, I am prepared to ascribe her incorrect evidence simply to a fault in recollection.

[15]

Medical evidence

I repeat some principles regarding the treatment of medical evidence which I have outlined in Robertson v Barker at [155]-[158]: "In relation to the medical evidence, particularly the evidence of [the expert], I respectfully refer to what Windeyer J wrote in Revie v Druitt [2005] NSWSC 902 at [34]: "As I have pointed out quite recently in Kerr v Badran, lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased." A similar view was expressed, more recently, in Attwell v Morgan [2019] WASC 182 at [75]-[76] (Curthoys J): "It is important to bear in mind that: The evidence of those with experience in dealing with elderly people, and who have personally observed the testator at and around the relevant time, is of considerable significance, often more than the opinions of others, medically qualified or not, who have not personally observed the testator at relevant times (Ridge v Rowden, 50 (citing Kirby P in Easter v Griffith, NSWCA, unreported, 7 June 1995)). It is also important to bear in mind what Vickery J stated in Nicholson v Knaggs: The parties called expert neuro‑psychiatrists, Professor Peisah and Dr Lloyd, as witnesses in this case. In relation to medical opinion on the question of testamentary capacity, I accept that it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first‑hand. The expert, who has not met the testator, is by necessity compelled to rely on secondary evidence in making his or her assessment, such as the untested affidavits of other witnesses, medical records and other relevant documents. Consistently with the approach of Judd J in Foster & Ors v Mellor [2008] VSC 350 [145], I respectfully adopt what was said by Windeyer J in Revie v Druitt [2005] NSWSC 902 [34]: 'As I have pointed out quite recently in Kerr v Badran lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased.' In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance." I also refer to the statements of Hodgson JA (with whom Young JA and Bergin CJ in Eq agreed) in Zorbas v Sidiropoulous at [65]: "The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation." In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133], the Court (comprising Gleeson, Leeming and Simpson JJA) noted that the trial Judge had "discounted the evidence of both experts on the basis that they had never met [the deceased]. Contrary to some of the submissions advanced by [the appellant, cross-respondent], there is no difficulty with his Honour having done so"."
I should refer to Key v Key [2010] WLR 2020; [2010] EWHC 408 at [98], in which it was said: "Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges."
Neither party tendered any contemporaneous hospital records or medical reports relating to the deceased. I have taken what follows from the expert reports to which I shall refer in more detail.
Neither party referred to the particulars recorded in a Register in New South Wales, pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) (Ex D2/54), which reveals that the cause of death and duration of the last illness to be "(a) decompensated liver failure, weeks"; "(b) hepatocellular carcinoma, year; (c) cirrhosis, years"; and "(d) Hepatitis B, years". The informant referred to in the Death Certificate is identified as Boon.
(There is no doubt that a Death Certificate has evidentiary effect. Section 49(2) of the Births Deaths and Marriages Registration Act provides that a certificate issued under subsection (1)(a) is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry.) The Death Certificate is, and was, not the only way to prove the facts stated in it and it was not the only evidence relevant to the issues to be determined.
Dr Cullen acknowledged that he was not a liver specialist. He said that he had trained in general medicine and geriatric medicine, that he had been a physician for almost 40 years and had looked after a number of people with end stage liver disease over the years.
Dr Cullen said in cross-examination that he had no clear memory of the deceased. He said that the letter annexed to his affidavit, which stated that at all times, the deceased "presented as being fully alert, with a good memory and intact cognition and preserved ability to express her thoughts clearly. There was no clinical need to formally assess [the deceased's] cognition", "was written at the request of the family, who asked me to provide an opinion about [the deceased's] cognition. The letter was intended to express that I was unable to do so because … [the deceased] did not undergo any formal assessments of her cognitional capacity while she was in hospital, under my care, on … two occasions, including her … final admission and her death from … the consequences of hepatic failure. … we did not need to undertake any formal assessment of her cognition using an interpreter because there was nothing from her presentation that suggested the need to do so": Tcpt, 8 February 2022, p 83(24-32).
He said that when he had looked after her during her admission between 29 August to 3 September 2019, the clinical records suggested that she was alert, orientated, and co-operative, whilst in her final admission, on 31 October 2019, when under his care, she was encephalopathic, and increasingly so as the admission progressed and her liver failure worsened. He described this condition as a brain dysfunction as a result of an encephalopathy, which was the response of the brain to toxins. He said she had severe liver failure with progressive accumulation of the toxins that the liver normally deactivates and clears.
In cross-examination, Dr Cullen confirmed that he did not speak any language other than English. He was unable to say whether all of his communications with her were translated to, and from, her, as he had no clear memory of the deceased.
Dr Cullen said that he had not looked after the deceased during her admission from 12 to 15 October 2019 and was unable to express a view as to her level of cognition in that period. For the purposes of giving evidence, he had not looked, in detail, at the clinical notes for that admission. However, in relation to that admission, Dr Cullen stated that the medical records he had read depicted that she "was calm, co-operative, responsive, alert; her behaviours did not give rise to any concern as documented by the nursing staff in the … medical record." He said that capacity would be assumed unless there was reason to doubt that, and if there were reasons to doubt that hospital staff would have undertaken a formal assessment. He said that based on his review of the hospital records, it appeared that there had been no need to undertake a formal assessment based on her presentation during that admission: Tcpt, 8 February 2022, p 84(12-18).
Dr Cullen also said that during her last admission, between 31 October 2019 and her death on 16 November 2019 "she had severe fluid retention and she became increasingly confused, drowsy and, and obtunded as a result of the failure of her liver to clear the … toxins produced by metabolic processes": Tcpt, 8 February 2022, p 85(20-23). ("Obtunded" means having a dulled or reduced level of alertness or consciousness.)
Professor Brew noted that there was no record of her medical conditions on 16 October 2019. However, there were records from Concord Hospital to which she had been admitted earlier in 2019. He described "several chronic conditions that were noted in her admission" on 2 September 2019. These "consisted of previous cancer of the breast requiring lumpectomy and radiotherapy, with treatment more recently consisting of Tamoxifen. She was also known to have hepatitis B with cirrhosis and presumed hepatocellular carcinoma, osteoarthritis, psoriasis of the scalp, urinary incontinence, and depressed blood counts related to her cirrhosis. This was also the explanation for her abnormal liver function tests. That admission to Concord Hospital was in the context of pneumonia from which she made a full recovery."
Professor Brew noted that it was "possible that the cirrhosis could have affected her cognition, as she was known to have abnormal liver function tests and was at risk of going into liver failure. None of the other medical conditions, however, would be likely associated with impaired appreciation of the act of making the Will". However, he noted that "[t]here is no documentation that liver failure affecting her condition had been an issue before. Indeed, on 31 October 2019, it is stated that she was awake and following commands". He concluded his first report stating, "I can find no evidence that would lead me to think that her testamentary capacity was impaired".
In his second report, he added "There is no medical documentation of an impaired conscious state that would impact on her ability to understand and approve making her Will on 16 October 2019".
In cross-examination, Professor Brew confirmed that he could find no evidence, in the documents provided to him, that the deceased's cognition was impaired at the time of making her will on 16 October 2019. He accepted that it did not follow that the deceased's cognition was not, in fact, impaired, only that there was no evidence of impairment in the records provided to him.
Professor Brew confirmed that the deceased had suffered with Hepatitis B for most of her life; that Hepatitis B is a disease that affects the liver; that in October 2019, she had quite advanced cirrhosis of the liver, meaning scarring of the liver, which interferes with the proper functioning of the liver; and that this condition could not be reversed. In addition, in October 2019, she suffered hepatocellular carcinoma, which in lay terms was liver cancer, as well as from portal hypertension, which is high blood pressure in a vein leading to the liver.
Professor Brew questioned that she was encephalopathic on her admission on 31 October 2019, because some of the medical records revealed that she was awake and following commands. He thought that was "not consistent with encephalopathy. She may have been encephalopathic later that day but, and alternately, it might have been a mild degree of encephalopathy allowing some, allowing the statement 'Awake and following commands', but usually a patient who is encephalopathic is not awake. They usually have some impairment of consciousness and usually, as a consequence, following commands is not possible or limited": Tcpt, 9 February 2022, p 169(20-26).
In cross-examination, Professor Brew was referred to some studies regarding the conditions from which the deceased suffered and in answer to questions agreed that it was fair to say that it was "not now possible to ascertain the level of her cognition, because simply no-one did the requisite testing at or around 16 October 2019" adding however, "[b]ut I don't think it therefore follows that because if we propose that she had covert encephalopathy, then as I've stated in my reports, that does not follow that she would not have testamentary capacity. From the behaviour that was recorded in the data that I have access to, there's nothing to support that her behaviour was unusual, or that she had difficulty in comprehending what was said to her, and she was able to be taken to the solicitor. All, all these activities would, would make it very unlikely that there would be significant encephalopathy": Tcpt, 9 February 2022, p 171(20-30).
Professor Brew also agreed that "covert encephalopathy potentially would impact cognitive abilities" but added that it was "by no means correct … to say that it would affect decision making capacity in regard to making a will", and that it depended upon the complexity of the will, his understanding "in broad terms from what I've been told is that it's not a complex will. It does not involve financial instruments that, that are obscure. It seems to be fairly straight forward. In that context, I don't see how it follows that therefore you can say covert encephalopathy, if it was present, would compromise her ability to reach decisions in regard to the will": Tcpt, 9 February 2022, 174(03-22).
Dr Strasser, the other expert, confirmed that she had found a similar medical history. She referred to pancytopaenia (deficiency of all three cellular components of the blood (red cells, white cells, and platelets). She provided more details of some of the conditions from which the deceased suffered. She wrote: "13. Mrs Lam's chronic hepatitis B infection was complicated by cirrhosis and portal hypertension, as well as the development of hepatocellular (HCC) a form of primary liver cancer. Her liver cancer was successfully treated with transaterial chemo-embolisation on 2 occasions on 08/05/19 (segment 7/8 HCC) and 21/8/2019 (segment 6 HCC) and there was no evidence of active HCC on follow-up CT scan on 22 Oct 2019. 14. Mrs Lam had evidence of hepatic decompensation at the time of her admission to Concord hospital from 20 August 2019 to 3 September 2019. Her liver function during that hospitalisation appeared worse at this time. The Model for End-stage Liver Disease (MELD) score is a validated means of assessing liver function based on results of serum bilirubin, creatinine and INR. The higher the score, the worse the liver function. 15. Mrs Lam's MELD score was 18 during hospitalisation late August/early September. Her liver function had deteriorated since November 2018, when the MELD score was 12. The MELD score was 15 on 7 August 2019 and peaked at 17 during hospitalisation to Concord hospital late August/early September 2019. There was some improvement in the MELD score (to 16) on 9 October 2019 following discharge from hospital, and again a slight worsening to MEL 17 on 15 October associated with admission for assessment of marked swelling and bruising of the right arm. 16. A liver ultrasound performed on 2 Sep 2019 showed a small amount of ascites. Ascites is free fluid in the abdominal cavity, that accumulates when liver function is poor. A CT scan on 20 Oct 2019 reported moderate ascites. It is difficult to assess relative volumes of ascites across different modalities of imaging, and it is unclear if there was a significant worsening of ascites during from September to October 2019. The presence of ascites is a feature of decompensated liver disease. 17. It is likely that the deterioration in MELD score, and liver function was related to an episode of community acquired pneumonia identified during hospitalisation 29 Aug 19 to 3 Sep 2019, as well as the performance of a TACE procedure as treatment for a 35mm HCC in the right lobe of the liver on 21 Aug 2019. This treatment involved delivery of microspheres containing chemotherapy directly into the branch of the hepatic artery supplying blood to the tumour, and can be associated with a reduction in liver function. The subsequent slight improvement in MELD score was likely related to recovery from pneumonia following treatment with oral antibiotics, and further recovery from the TACE procedure. Overall, however, it would seem that her liver function was progressively declining. 18. Mrs Lam had evidence of stable decompensated liver disease on assessment on 15 October 2019. 19. I have reviewed all the medical records provided. At no time can I see that a healthcare interpreter was used to facilitate direct communication between Mrs Lam and the medical and nursing staff at the hospital or community-based care. All communication was provided through family members and use of some limited English with the health care providers. 20. In review of the medical records provided, Mrs Lam appeared alert, orientated and appropriate to the medical and nursing staff at all times. I note she was transferred by ambulance to Concord Hospital on 9 Oct 19 for assessment of bruising of the right forearm. She was discharged the same day from ED. She was noted to be alert and greeted the assessing Aged Care Services Emergency Team (ASET) Nurse with a smile. 21. She was then admitted 12 Oct 19 to 15 Oct 19. She was discharged one day prior to making the 16 October 2019 Will. She was admitted for assessment of extensive bruising, swelling of the right arm, which was attributed to minor trauma, underlying low platelet count and abnormal blood clotting related to liver disease. 22. In review of all the medical records provided, I can see no evidence that Mrs Lam suffered from overt Hepatic Encephalopathy (HE), a cognitive disorder that may be associated with decompensated liver disease. HE was never mentioned in the medical record, nor were any of the features of overt HE, being confusion, disorientation or drowsiness. She was not treated with medications that one would expect to be used if there were clinical features of overt hepatic encephalopathy, being lactulose or rifaximin. It is noted that a low dose of lactulose in conjunction with coloxyl with senna was prescribed for constipation during admission 12-15 October - this was not prescribed for HE. 23. It is not possible to exclude a subtle cognitive deficit due to undiagnosed covert, or minimal, HE as this would require formal specialised neuropsychometric testing. Covert HE is present in up to 80% of patients with cirrhosis, with patients with decompensated liver disease being at the highest risk. Covert HE may be associated with difficulty with executive decision-making and psychomotor speed, as well as with falls. It is clear that Mrs Lam was frail and wheel-chair bound, requiring 24 hour care. It is not possible to determine if subtle HE contributed to her poor mobility and falls as there were other reasons for these features. It is not possible to determine if Mrs Lam had covert HE resulting in impairment in executive decision-making, however in my opinion, it is possible. 24. As Mrs Lam appeared to interact normally with her family, with her lawyer and with the interpreter in my opinion it is likely that Mrs Lam was aware she was making a Will. 25. In my opinion, covert HE related to decompensated liver disease if present, may have impacted Mrs Lam's capacity to appreciate the nature and value, in general terms, of her Estate. As mentioned, it is not possible to determine if covert HE was present as no formal neuropsychometric testing was performed. None of her medications at discharge from hospital on 15 Oct 2019 would be likely to impact her cognitive state. 26. In my opinion, covert HE related to decompensated liver disease, if present, could have affected Mrs Lam's ability to identify the natural objects of her testamentary affection. 27. In my opinion, covert HE related to decompensated liver disease, if present, could have affected Mrs Lam's ability to comprehend and appreciate any claims to which she ought to give effect. 28. If Mrs Lam did have covert HE, it might lead to 'disorders or impairment' of the mind as the cognitive deficit may particularly impact executive and complex thought processes. It is unlikely that Mrs Lam suffered from 'insane delusions' as none were reported to her family members or health workers. 29. As a liver specialist, I am unable to comment on the impact of hearing impairment and language skills on Mrs Lam's ability to comprehend the processes associated with making a Will."
Professor Brew responded to some of what Dr Strasser stated in his second report: "6. (…) As stated in paragraph 4, I relied on the totality of the medical records provided to me. There is no medical documentation of an impaired conscious state that would impact on her ability to understand and approve making her Will on 16 October 2019. 7. (…) I reiterate. The records do not have any medical documentation of impaired consciousness that would impact on her ability to understand and approve making her Will on 16 October 2019. It is wrong to assume that just because a patient has cirrhosis with portal hypertension, abdominal ascites, enlarged spleen, splenic varices, deranged liver function tests, coagulopathy, critically low platelet count, caput medusa and therapeutic procedures (TACE), therefore the patient has liver failure affecting cognition and therefore cannot understand or approve making a Will. Patients can definitely have evidence of cirrhosis and liver failure and yet be otherwise medically stable. This is precisely why the term 'decompensated liver failure' is used. 8. (…) My response is exactly the same as in the previous paragraphs. I stand by what I have written It should be noted that the f[r]aming of the questions seems to be relying on the line of reasoning that if there is no positive exclusion of cirrhosis impacting cognition, then there must be a significant risk of cirrhosis causing impaired cognition. This is incorrect. As stated above, it cannot be reasoned that patients with cirrhosis automatically have impaired cognition. If there was impairment of cognition related to cirrhosis, it would have been recorded in the medical records. Mrs Lam was in a tertiary teaching hospital, namely Concord Hospital. The hospital and its staff are well versed in the management of patients with cirrhosis and its complications, including those affecting cognition. The absence of any documentation of cirrhosis causing impairment of cognition I consider to be very strong evidence for cirrhosis not impairing her cognition."
In his third report, Professor Brew stated: "Following the teleconference held on 3 December 2021, I have been asked to review the reports from Associate Professor Simone Strasser and determine whether my views as expressed in my report 9 July 2021 have, in any way, altered. My views are not changed by the reports of Associate Professor Simone Strasser. My reasons are as follows: Essentially, Associate Professor Simone Strasser is arguing that "it is quite likely that Mrs Lam did suffer from covert or low grade hepatic encephalopathy as this is very commonly associated with advanced liver disease being present in up to 80% of people with this condition." I disagree with this conclusion. Firstly, grade 1 hepatic encephalopathy as per the Westhaven Criteria is described as "Trivial lack of awareness, Euphoria or anxiety, Shortened attention span, Impairment of addition or subtraction" and "Altered sleep rhythm". As stated in my reports and as reiterated in Associate Professor Strasser's two reports, there is no documentation of any cognitive impairment relevant to the date of 16 October 2019. No testing was performed. No interpreter was engaged in any assessment. Lastly, she did not have the latter mentioned features of grade 1 hepatic encephalopathy. There is no mention in the records of any lack of awareness or euphoria or anxiety, nor altered sleep rhythms. The other components to grade 1 hepatic encephalopathy (namely shortened attention span and impairment of addition or subtraction) requires some further focussed testing which, as stated above, did not occur according to the records. In the attached table documenting the Westhaven Criteria, under the column "Suggested Operative Criteria" it states, "Despite oriented in time and space, … the patient appears to have some cognitive/behavioural decay with respect to his or her standard on clinical examination or to the caregivers". Again, there is no objective evidence of this in the records. The second issue that I have with Associate Professor Strasser's reports is her figure of up to 80% having covert hepatic encephalopathy. Unfortunately this statement is not referenced. According to the attached articles, the prevalence of grade 1 hepatic encephalopathy varies. In the article by Thomsen et al, their study of 106 patients with clinically stable liver cirrhosis with a MELD score of 15+/- 6 (compatible with [the deceased], as per page 3 of Associate Professor Strasser's report dated 17 October 2021, section 15) the prevalence of grade 1 hepatic encephalopathy was 44 out of 106, namely 41.5%. The review article from Weissenborn quotes a figure on pages 57 and 58 of 22% in one study and 42.7% in another. The study by Labenz quotes a prevalence of 36.7%. Thus, the argument that covert encephalopathy is common and therefore is more likely that not to have been present in Mrs Lam is not supported by the literature. I wonder whether the quoted figure from Associate Professor Strasser includes patients with subclinical grade 0 or otherwise known as minimal hepatic encephalopathy. As per the tabulated commentary on the Westhaven Criteria, there are "No universal criteria for the diagnosis (of minimal hepatic encephalopathy), Local standards and expertise required". Importantly, minimal subclinical or grade 0 encephalopathy is defined by abnormal test results on neuropsychological assessment but "without clinical manifestations". It is invalid to reason that neuropsychological test performance impairment, without clinical manifestations, would be more likely than not to impair testamentary capacity. As stated in my previous reports, indeed, patients with mild (and sometimes moderate) severity dementia may still have testamentary capacity." [footnotes omitted]
It is also necessary to refer to the following evidence from Professor Brew in answer to matters put by the Court (Tcpt, 9 February 2022, p 174(49)-175(19)) which: "Q. … Some of the evidence suggests the following facts. Firstly, the deceased told one of her children that she wanted to make a will. Secondly, she asked the daughter to whom she was speaking to find a solicitor. Thirdly, after the solicitor was found, she attended at the office of the solicitor with three of her five children. She spoke to the solicitor through an interpreter and she told him, through the interpreter, what she wanted to do in her will. At that time no one else, other than the solicitor and the interpreter, were present. After she told the solicitor what she wanted, she asked the solicitor to inform her children of what she wanted and they were brought into the room and were told what her instructions had been. With those facts in mind, do they assist you in correcting your view or corroborating your view of what you've told me this afternoon and in your reports one way or the other? A. No, that's, that's helpful because they do speak to an ability to plan. They speak to ability to organise, and they speak to ability, an ability to attend, to focus her mind on what she wanted to do. She planned her action; she organised or at least got family to organise what she wanted to do. So, I, I think those are strong indicators of the absence of an encephalopathy, or if encephalopathy was present, it would have to have been minor, without impacting in any significant way planning, organisation, or attention."
It is probably unnecessary to determine which of the two experts' evidence should be accepted on the topic of cognition, as a result of the oral evidence given by Professor Brew that "because of the presence of the various factors that were identified, to say that "doubt" over her cognition at the middle of October 2019 was (Tcpt, 9 February 2022, 174(24-40)): "too strong a phrasing of it. I think there can be some concern given those factors that we've agreed upon earlier, in terms of her age, and given that she did seem to become encephalopathic some two weeks later. But it's critical to understand that … you can have compensated liver disease, compensated liver failure, and that's what it means, without any encephalopathy…. the fact that she was stated to be encephalopathic some two weeks later in no way means that she was more likely to be encephalopathic in the preceding two weeks. I agree that it, she's at risk, and I agree that you can have some suspicion, but I contend that doubt is too strong a phrasing of the circumstances."

[16]

The solicitor's evidence

Mr Lee affirmed one affidavit dated 14 January 2021, which spanned 4 pages and comprised 23 paragraphs. He stated that he believed he had a good recollection of events, and he had stated what he could recall to the best of his ability: Tcpt, 9 February 2022, p 159(45-47), 160(6-22). However, he accepted that he had "great difficulty recollecting" some of the events in answer to questions from the Court: Tcpt, 9 February 2022, p 159(21-23).
With leave, he was asked questions by counsel for Sony about some of the events that had occurred. Leave was granted, following which he was cross-examined (although not on the basis that he was dishonest).
Mr Lee was admitted as a solicitor in 1998 and he has practised, continuously, in New South Wales since that time. He denied that in 2019, he "did very little work preparing wills" but admitted that whilst he had experience in preparing wills he was "not a specialist": Tcpt, 9 February 2022, p 148(01-03), 151(05-06). He disagreed with the proposition put to him that, in October 2019, he was not particularly experienced in drafting wills.
Mr Lee said that he was first contacted by Ping, who he previously knew, by telephone, on 13 October 2019. Ping had been a client of his, but he had not spoken to her for "possibly months" before this telephone conversation: Tcpt, 9 February 2022, p 146 (20-22). Following the conference, he did not speak to her again, other than at the deceased's funeral. He had not spoken to her about these proceedings.
It was not suggested by any of the parties, in my view, correctly, that Mr Lee was not impartial, or that his testimony was the result of some motive, bias or influence, such as an ongoing relationship with Ping.
Although there is no evidence that Mr Lee asked why Ping, and not the deceased, was telephoning him, he gave evidence that Ping informed him that the deceased was in hospital for the treatment of a swollen left arm and that the deceased wished to make a final will, to make an enduring power of attorney, and to make enduring guardian appointment: Affidavit, Jeffrey Lee, 14 January 2021 at par 4.
Ping did not mention the deceased's age in this telephone conversation, but he had assumed that the deceased was "an older lady": Tcpt, 9 February 2022, p 146(37-39).
In cross-examination, Mr Lee agreed that during the telephone conversation, he did not ask Ping whether the deceased had an existing will. Nor did Ping tell him that the deceased wished to divide her estate between her four children, or that she wished each of those children to be executors.
However, he stated that since the deceased was in hospital, he did enquire about the capacity of the deceased to make a will, and that he had accepted Ping's response that the deceased "was fine": Tcpt, 9 February 2022, p 146(47)-147(2).
Mr Lee did not make a file note of this telephone conversation with Ping: Tcpt, 9 February 2022, p 147(4-6).
Mr Lee gave evidence that he then contacted Ms Li, a NAATI (National Accreditation Authority for Translators and Interpreters) accredited Chinese (Mandarin) interpreter, with whom he had previously worked, to attend the conference with the deceased: Affidavit, Jeffrey Lee, 14 January 2021 at par 7. He did not state whether their professional dealings were in the context of interpreting evidence in Court, or in the context of taking instructions from, and providing advice to, a client about a matter, such as a will.
Mr Lee did not give any evidence about his experience in working with an interpreter in the context of taking instructions for a will.
Mr Lee admitted that he spoke "very little" Mandarin which is why he said he needed the interpreter: Tcpt, 9 February 2022, p 144(38-40).
When cross-examined, Mr Lee said that he had formed the belief that a Mandarin Chinese language interpreter was necessary from his earlier communication with Ping: Tcpt, 9 February 2022, p 148(9-15). How he came to this conclusion was not explored, or explained, further. There is nothing to suggest that he asked either Ping, or, subsequently, the deceased, whether she was fluent in Mandarin, or would prefer to speak in another language.
Mr Lee and Ping arranged the conference to take place at 2:30 p.m., on 16 October 2019. Neither he, nor Ms Li, gave any evidence that prior to the conference, there had been any discussion between them about the objective of the conference, or that Mr Lee had explained any of the technical words or concepts to be discussed to her.
In preparation for the conference, Mr Lee prepared what he described as pro-forma precedent documents, including a will, an Appointment of Enduring Power of Attorney and an Appointment of Enduring Guardianship: Affidavit, Jeffrey Lee, 14 January 2021 at pars 8-10. He said that to obtain the pro-forma documents "I don't do anything. I just click on it and it just gets it ready sitting there for me when I need it": Tcpt, 9 February 2022, p 147(16-23).
It appears that what were described as "pro-forma documents" did not form part of the documents produced to the parties. He said that they were not available as they had changed when he made amendments to them, leaving only the completed documents on his computer. He did not specifically describe what amendments had been necessary to the pro-forma documents.
There was no evidence that Mr Lee had ever met the deceased at the time of the telephone conversation with Ping. His first meeting with her was on 16 October 2019. However, at the conference which followed, he obtained a copy of her passport, Medicare card and pension card for the purposes of identification: Ex D2/14.
In his affidavit, Mr Lee recorded that the deceased arrived at his office accompanied by some of her family members, namely, Lily, Ping, Ping's minor daughter, and Sony: Affidavit, Jeffrey Lee, 14 January 2021 at pars 11-12. However, in his examination in chief, Mr Lee accepted that he had been mistaken, and that he now believed that it had been the Plaintiff, Boon, rather than the Defendant, who had attended his office: Tcpt, 9 February 2022, p 140(45)-141(1).
Mr Lee also agreed that in his file note he had identified the possibility of a family provision claim made by Rose and by Boon. He agreed that he had been mistaken in referring to Boon as 'her' but said this was because, at the time, he had believed Boon was a woman: Tcpt, 9 February 2022, p 143(4-11). In relation to Boon, the basis of the concern, it appears, was "as Daisy lives with her (sic)": Ex D2/16.
Mr Lee stated that he had greeted the family in the conference room. He thought Ping introduced the deceased, Boon and Lily, and he introduced the interpreter. He observed that the deceased was sitting in a wheelchair in which she remained throughout the conference.
In his oral evidence, Mr Lee stated that "It was then explained to all present that only deceased, Ms Li, and myself, could remain in the conference room." He had spoken in English, and the interpreter spoke in Mandarin Chinese. He said in his affidavit that everyone else then left the room: Affidavit, Jeffrey Lee, 14 January 2021 at pars 13, 15. He estimated that the time taken in these greetings was approximately five to ten minutes: Tcpt, 9 February 2022, p 154(47-48).
In examination, Mr Lee added that after the family members left the conference room, he had asked Ms Li to ensure that she and the deceased could understand each other, and he only continued once Ms Li had confirmed she was so satisfied: Tcpt, 9 February 2022, p 142(3-7), p 155(15-18).
Neither he, nor Ms Li, gave any detailed evidence of the nature of the interaction before the process of obtaining instructions commenced, or how long it lasted. Nor did he say that what he spoke with the deceased about was designed to test her cognitive powers or was otherwise raised for the purpose of ascertaining testamentary capacity. He also did not say that the deceased's responses led him to form the view that he had ultimately expressed.
One might have expected the evidence of the solicitor, relying upon what had occurred prior to taking formal instructions, for the purpose of testing understanding of the language being spoken, and capacity generally, to be more expansive about the topics and content of the initial discussions.
Mr Lee then started taking instructions. Whilst doing so, he made a diary note which, apart from the 2019 Will, is the only record of the instructions given. Whilst some of his evidence is difficult to follow, it seems that he said that the deceased was there for the purposes of making her will and then he asked her what her wishes were in terms of her assets: Tcpt, 9 February 2022, p 155(23-27).
A copy of the diary note, which is hardly extensive, or detailed, formed part of Ex D2/15-16. It recorded: "16/10/19 2:30pm Jeff Mei Daisy Daughter Son Ping & Jackie 5 children - only want to distribute to 4 younger children Eldest child - don't want to give - Possible claim by Rose for no provision Daisy says for children to work out - Also, possible claim by Tong Boon as Daisy lives with her (sic). She may claim for insufficient provision. Daisy says for children to work out [illegible] 4:40pm + Scan will & amend EG & EPOA"
Mr Lee gave evidence that this diary note was written "during a … sort of a, a break … while the interpreter was interpreting sort of the bulk of the will to the, to the deceased…": Tcpt, 9 February 2022, p 157(41-43). He thought that he made part of the note "during the conference but … after all the details were provided … it wasn't a transcript …. I wasn't taking it down as it was being spoken. … I was listening at that stage, but after I had all the details and, and prepared the document I'd written down the notes": Tcpt, 9 February 2022, p 158(11-26).
Mr Lee stated that he was aware that the deceased had just been discharged from hospital, and that he had asked the deceased about her hand and asked her how she was doing: Tcpt, 9 February 2022, p 155(15-21). He said he could see that she had a swollen hand although in answer to a question she said it was fine. He said that she could speak "some English": Tcpt, 9 February 2022, p 150(25-26).
Furthermore, after he had spent one and a half hours taking instructions, he had formed the opinion that "she was actually in, in better condition than, than my, my own mother who was ten years younger": Tcpt, 9 February 2022, p 150(36-43).
Mr Lee stated that he proceeded to take instructions from the deceased in relation to her testamentary wishes, using the assistance of Ms Li as interpreter, and then documented those instructions into the pro-forma will document which he had previously prepared. He described this as asking her "what her wishes [were] in terms of her assets": Tcpt, 9 February 2022, p 155(24-27).
Whether Mr Lee read out what he had written sequentially, whether Ms Li adopted consecutive interpretation, meaning that she interpreted immediately what he said, or whether it was done in another way, was not made clear in the evidence of either of them. Whichever form of discussion took place would have required the deceased to listen carefully to what Ms Li said in Mandarin Chinese, to remember, and comprehend, what had been said.
In cross-examination, Mr Lee said that he had asked why the deceased wanted to exclude her eldest daughter and that she had indicated that they were estranged. She did not disclose any reasons for that estrangement and had become quite emotional in discussing this topic: Tcpt, 9 February 2022, p 142(35-39); 161(33-36). He also said that he discussed the possible claim for a family provision order by Rose, and by Boon, with the deceased, and it appears that her only response was that it was "for children to sort out".
It is clear that this part of the file note highlights concerns that Mr Lee recorded himself as having, and how they were resolved by identifying the response of the deceased. Whilst it demonstrates that Mr Lee drew the deceased's attention to the potential for additional claims on her bounty, it was nothing more than that, and her response to the matter does not reveal an understanding of the potential claims or the weighing up of those claims, at least so far as Boon was concerned.
The basis for the need to amend the Appointment of Enduring Guardian and the Enduring Power of Attorney was not identified and not explored in his oral evidence.
It is equally clear, bearing in mind what was said to have been the duration of the conference, and as Mr Lee acknowledged, the diary note was not a complete account, or record, of what may have occurred.
Mr Lee also recalled that while the deceased was explaining how she wanted her estate divided, he recognised her to say the Chinese word "gongping" which he understood to mean "fair, just, [or] even": Tcpt, 9 February 2022, p 152(2-7).
At some point during the conference, Mr Lee recalls that he left the conference room to speak with the deceased's children to confirm the spelling of names and to obtain addresses: Affidavit, Jeffrey Lee, 14 January 2021 at par 19. He clarified that he had spoken, probably to Ping, and asked whether she could write down the details of each of the children: Tcpt, 9 February 2022, p 143(41-43). Following this request, a document was provided to him with the information: Ex D2/17.
In cross-examination, Mr Lee explained it was necessary to obtain this information from Ping because, although the deceased could identify her children, she did not know how to spell their names in English. The interpreter "could only say the name but not give an exact spelling in English of the name": Tcpt, 9 February 2022, p 150(6-10).
Following the taking of instructions, Mr Lee amended the pro forma will document that he had earlier prepared on his computer, and went through it, again, with the deceased. The deceased then said that she wanted to make sure that the children were happy with what her wishes were. He said that he then explained each paragraph of the draft will to the deceased.
He gave evidence that he spoke in English and Ms Li interpreted what he said in Mandarin Chinese. However, he was not able to understand what was being translated by Ms Li to the deceased after he spoke other than "maybe a word here and there": Tcpt, 9 February 2022, p 154(30-32).
Mr Lee was asked how he had formed the opinion that the deceased understood the contents of the will, and he said it was because she said "Yes…when the interpreter asked whether she understood … pretty much [after each sentence or paragraph]": Tcpt, 9 February 2022, p 153(16-24).
Shortly afterwards, but before the 2019 Will was executed, Mr Lee asked the children of the deceased to return to the conference room. He recalls that this was because the deceased had said that she wanted to inform her children that she had excluded her eldest daughter, Rose, from the will and that her assets were to be equally divided.
Mr Lee elaborated on part of his evidence orally. He stated that he thought he had given to the children a working copy of the draft will to read but he was not sure. He recalled that he would have had at least three copies of the will. He had the three copies for himself, the deceased, and Ms Li, but he could not remember whether he had made any additional copies. He could not recall specifically observing the children reading the will but believed they could all see a copy: Tcpt, 9 February 2022, p 158(32-48).
Mr Lee said that he explained that the deceased's wishes were she did not want to give any of her estate to the eldest daughter, Rose, and that she wanted to divide the estate equally between her other children: Tcpt, 9 February 2022, p 144(12-28), 160(09-14). He said that he spoke in English and the interpreter interpreted it into Mandarin Chinese: Tcpt, 9 February 2022, p 144(29-40). After his explanation, the deceased asked her children "[I]s that okay?": Tcpt, 9 February 2022, p 159(05-14).
He stated that the children responded with words which were translated to him as: "Whatever you wish. It is up to you to decide, mum." The children then left the conference room once more: Affidavit, Jeffrey Lee, 14 January 2021 at par 20.
He also recalled that Ping had said, in English, that whatever the deceased wanted was fine, and then the interpreter also said in English that the other children had said in Chinese that was "okay": Tcpt, 9 February 2022, p 144(42-48).
It will be appreciated that there is no reference to this very important aspect of the conference with the deceased and some of her children, including the Plaintiff, in the contemporaneous diary note. It is a glaring omission.
Mr Lee estimated that the process of taking instructions and having the 2019 Will signed had taken approximately one and a half hours: Affidavit, Jeffrey Lee, 14 January 2021 at par 17.
Mr Lee stated the 2019 Will was signed at around 4:30 p.m. on the afternoon of 16 October 2019 in the conference room, and that only he, the deceased, and Ms Li were present in the room at the time. Shortly after executing the 2019 Will, the deceased and her family left: Affidavit, Jeffrey Lee, 14 January 2021 at pars 21, 23.
However, the invoice dated 18 October 2019 sent by him to the deceased, as well as the invoice dated 17 October 2019 sent by Ms Li, each records that the conference ended at 5:20 p.m. on 16 October 2019: Ex D2/46, 52.
Mr Lee sent his invoice by way of email dated 18 October 2019: Ex D2/52-53. This email does not contain a reference to the events that had occurred in conference. The only reference to the Enduring Power of Attorney and Appointment of Enduring Guardian was one to "also drafting Enduring Power of Attorney and Appointment of Enduring Guardianship forms which were not signed".
Mr Lee admitted that, in 2019, he was unfamiliar with the principles regarding testamentary capacity outlined in Banks v Goodfellow (1870) LR 5 QB 549, and with the Law Society Guidelines for taking instructions from an elderly client for a will.
He admitted that he did not ask the deceased whether she had an existing will, assuming that, like many Chinese people, the deceased had not yet made a will, but was now making one because she believed she "was close to needing it". He also said that he did not state that "the new will revokes all prior wills": Tcpt, 9 February 2022, p 151(13-24).
Mr Lee did not give evidence of any discussion with the deceased about the role of the executors. Nor did he ask her any questions about her property although he ascertained the address of the Burwood property, not from the deceased, but from the address on her pensioner card. He then obtained a title search for that property, which he said "was her asset": Tcpt, 9 February 2022, p 155(29-31). He explained that he performed a "reverse address search" through the NSW Land Registry Services online website: Tcpt, 9 February 2022, p 155(47-49).
He stated that at no point did the deceased give any indication that she could not hear, or understand, what was going on: Tcpt, 9 February 2022, p 144(50)-145(29). Nor did he notice whether she was wearing her hearing aids. He recalled, however, that he and the deceased were sitting at opposite ends of a table which seated eight people, estimating that he would have been moderately distanced from her.
In cross-examination, Mr Lee denied that the deceased had difficulty hearing during the conference because she was not wearing her hearing aids. He also stated that he did not observe the interpreter having to repeat herself: Tcpt, 9 February 2022, p 151(40-47).
Mr Lee said he did not ask the deceased about any medical conditions from which she then suffered or suggest to her that a medical certificate confirming her competency to make a will should be obtained. He said he "had no reason to": Tcpt, 9 February 2022, p 150(47-49), explaining that although she was in a wheelchair, the deceased had not appeared very frail to him.
Importantly, Mr Lee stated that it was he, not the deceased, who explained the contents of the Will being prepared to the children when they came back into the room. He answered, when asked whether the deceased had explained anything to them, "Not to the children that I could understand, no".
He added that none of the children who were present had indicated, at any time, that the deceased lacked capacity. Nor did she or he express any concerns about her capacity to him.
I am satisfied that Mr Lee was endeavouring to do his best in recalling the events that occurred on 16 October 2019. However, he stated that he "partly" had a recollection of what occurred and that "I am trying to remember and, … saying … what I can recall to the best of my ability": Tcpt, 9 February 2022, p 159(42-47).
I shall discuss the role of a solicitor in taking instructions for drafting a will for an elderly client later in these reasons. Regrettably, even accepting his evidence, Mr Lee, in my view, did not go very far in satisfying himself of the deceased's testamentary capacity.

[17]

The interpreter's evidence

Ms Li's affidavit affirmed 26 June 2021, comprised 6 paragraphs, spanning 3 pages. She confirmed that her occupation was that of language interpreter. She gave no evidence, and was asked no questions, about her training in interpreting the contents of a will, or her understanding of the concepts, such as that of an executor or trustee or what was meant by a possible claim for a family provision order since no provision was being made for Rose. She did not give evidence of her ability to convey the concepts that Mr Lee was stating or explain the consequences. Nor was she asked anything about any academic positions that she held in 2019.
Nor did she give any evidence that she had been afforded any opportunity to familiarise herself with the pro forma documents that Mr Lee had prepared for the process of interpretation.
As I understand it, "interpreting" is the process by which spoken, or signed, language is conveyed from one language to another orally. The interpretation must express in one language, as accurately and completely as that language and the circumstances permit, the idea, or concept, as it has been expressed in the other language: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; [1999] FCA 507 at [29] (Kenny J), quoting Gaio v R (1960) 104 CLR 419 at 433; [1960] HCA 70 at [5] (Menzies J). Also see, Judicial Council on Cultural Diversity, "Recommended National Standards for Working with Interpreters in Courts and Tribunals" (2017) at 3-4.
It has been said that "interpreters do not simply translate words; rather they translate concepts and ideas from one cultural context to the next" (K Laster and V Taylor, Interpreters & the Legal System (1994, The Federation Press) at 116, referred to in M Barnett, "Mind Your Language - Interpreters in Australian Immigration Proceedings " (2006) 10(1) University of Western Sydney Law Review 109). All human communication is complex. Further complexities of translating the terms of a will, and its meaning and effect, are obvious.
In a case where the solicitor's, or the client's, own linguistic capacities are not, on their own, sufficient to communicate with the other, an interpreter would serve to remove any barriers which prevent, or impede, communication or understanding: Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 425 (Samuels JA). An interpreter is not a mere conduit because interpreting is not a mechanical process. It involves a skill and an art.
In the circumstances of this case, Ms Li might also be faced with the difficulty of having to accurately convey a meaning of a word or phrase where there was no precise, or even similar, equivalent to the word or phrase in the 2019 Will. This is likely to have involved more than core competence, such as a detailed knowledge of the English and Mandarin Chinese languages and a capacity to communicate effectively in both languages. She would also have required an understanding, and a command, of legal terminology (if the 2019 Will was being read out to the deceased and translated by her).
Of course, as a NAATI interpreter, one would assume that she had the necessary qualifications and accreditation. Yet, as was written in Perera v Minister for Immigration and Multicultural Affairs at [31] (Kenny J): "It remains possible, however, that an interpreter, who satisfies a court or tribunal that, by reason of qualifications and experience, he or she would be likely to provide a competent interpretation, may nonetheless provide an incompetent one."
Ms Li stated that she was unable to recall the event, or the parties involved in the signing of the 2019 Will. However, she affirmed that the second signature from the left, at the bottom of pages 1 and 2 of the 2019 Will, and below the attestation clause on page 3 appeared to be her signature: Affidavit, Mei Li, 26 June 2021 at pars 4-5.
In her examination in chief, Ms Li confirmed that she had no recollection of the day in question, or of any of her interactions with the deceased: Tcpt, 9 February 2022, p 163(29)-164(34). However, she agreed, that judging from her invoice, it appeared that she had spent "roughly about three hours" at the conference on the afternoon of 16 October 2019: Tcpt, 9 February 2022, p 163(34-36). She could not recollect how long during that three-hour period, she had spent translating questions asked by Mr Lee and how long she had spent translating what he had said about the 2019 Will to the deceased.
Ms Li stated in cross-examination that she would not have "translated" the 2019 Will but would have "interpreted" it. She defined what she did as involving a verbal interpretation of the document, assisted by Mr Lee who explained, in English, the contents of the will: Tcpt, 9 February 2022, 164(8-10). She added, later, that she understood her job on that day to be "to interpret the conversation he [Mr Lee] would have with this lady, and to interpret the will, and vice versa": Tcpt, 9 February 2022, 165(24-25).
In cross-examination Ms Li did not recall whether the deceased had difficulty in understanding things she said in Mandarin Chinese: Tcpt, 9 February 2022, p 164(32-34). However, she indicated that if she had observed someone was having difficulty understanding, her usual practice, in 2019, was to immediately alert the solicitor and request to withdraw from the task: Tcpt, 9 February 2022, p 165(5-8). She had not done that in this case.
Ms Li gave evidence that she did not recall whether the deceased had difficulty hearing her, whether she had to repeat herself, or whether she had to use a loud voice when speaking to the deceased: Tcpt, 9 February 2022, p 164(16-30).
It is difficult to accept that Ms Li had no recollection at all about the event in which she was involved, particularly the part of the event involving the deceased's children returning to the conference room and the deceased speaking to them about what her wishes were. One might have thought that this was sufficiently unusual to warrant recollection.
Be that as it may, it is impossible to assess how effective Ms Li's interpretation would have been as there could be the risk of inadvertent mistakes in interpretation. Furthermore, the nuances of the discussion may well have been lost in adopting that course. I also wonder whether there are any unique challenges faced by Chinese interpreters in achieving accurate interpretation due to cultural factors.

[18]

The evidence concerning language

Dr Xu stated that although sub-dialect varieties existing within one of the major dialect groups may differ in minor pronunciation, each of these sub-dialects are considered to be mutually unintelligible when compared with sub-dialects outside their respective major dialect groups. These differences are primarily and significantly in the pronunciation of words.
She also stated for that from a linguistic point of view, Mandarin Chinese and the Hainanese dialect, are considered different languages and are mutually unintelligible. She stated, by way of example, that "people who speak different dialects, such as Cantonese and Hainanese … cannot understand each other, if they haven't learned to speak each other's dialect".
Dr Xu accepted that "in multilingual societies/countries such as Singapore and Malaysia, it is not uncommon for people to speak all the common dialects spoken there: Mandarin, Cantonese, Hakka, Hokien and Tiechiew or Chaozhou (the last two being varieties of the Min dialect group)…".
Dr Xu said that whilst she believed "that the deceased was able to speak Mandarin to some extent", she questioned her ability to be able to understand the interpreter's Mandarin Chinese. She wrote: "This is based on these two facts: firstly, although people might speak Mandarin, they may carry different accents, sometimes to the extent that misunderstanding can result if the pronunciation is wrong. So, for example, while 'ten' is pronounced as 'shi' in Mandarin, many southern dialect speakers cannot pronounce it; instead, they would pronounce it as 'si' which is 'four'. As such, there was a possibility that the deceased may not have understood the interpreter if the interpreter may not speak standard Mandarin, but with some dialect accent. On the other hand, if the interpreter spoke standard Mandarin, the deceased may not have understood the interpreter well either, as the variety of Mandarin spoken in Singapore is different from that in mainland China. This is particularly in the use of 'retroflexes' in Mandarin, which is hard for dialect speakers, especially the older generation who did not have a formal education in Mandarin to understand."
Dr Xu stated that she doubted that the deceased had the "cognitive capacity" to engage in processing a lot of conversation. However, in answer to a question from the Court, she stated that she meant the "linguistic capacity".
It is to be noted that Dr Xu did not write anything in her reports about the concepts that would have required explanation in the 2019 Will, such as the role of executors and trustees.
Based upon Mr Lee's file note, the deceased must have been able to understand some of what Ms Li interpreted as she was able to provide what were said to be instructions to Mr Lee. However, based upon Dr Xu's evidence, there must be some doubt about whether the deceased understood all that Ms Li said to her in Mandarin Chinese.

[20]

Revocation of Probate

Wills can be proved in two ways; being in common form or in solemn form. A grant, in whichever form it takes, is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SASR 394 at 398. The power to grant probate of a will vests in the Supreme Court.
A grant in common form is the result of non-contentious proceedings where the validity of the will is not contested. In that case, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262 at 272; [1964] 1 All ER 596 at 600-601; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147 at [35]. It has been described as an interlocutory order. It is usually made on the basis of affidavit evidence, and in the absence of interested parties, by a Registrar exercising the powers of the court. There is no statutory time limit for commencing proceedings to challenge the validity of a will.
In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [8], it was said that a grant of probate in common form is inherently revocable. The grant does not create a res judicata, but is subject to later challenge: Romascu v Manolache [2011] NSWSC 1362 at [174]- [177].
The practice in relation to the admission of a will to probate in solemn form reflects the historic antecedents of the probate jurisdiction of the Supreme Court. That jurisdiction was confirmed by s 33 of the Probate and Administration Act 1898 (NSW). It includes the jurisdiction to revoke a grant of probate: Bates v Messner (1967) 67 SR (NSW) 187; Mavrideros v Mack (1998) 45 NSWLR 80; [1998] NSWCA 286.
The Court has an investigatory role and orders are not made by default. In order to obtain a grant of probate in solemn form, the propounder of the will must establish that the will-maker had capacity at the relevant time to make a will, that she, or he, had the intention, by the instrument, to make a will, and that she, or he knew and approved of the contents of the testamentary instrument: I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [301]; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21.
It is open to a court exercising probate jurisdiction to revoke the grant, at any time, upon a proper case being established: Richardson v Rearden [2006] NSWSC 1252 at [16].
Section 66 of the Probate and Administration Act 1898 (NSW) relevantly provides: "The Court may at any time, upon the application of any person interested in the estate - (a) revoke the administration already granted…"
The section does not specifically provide for circumstances in which the grant may be revoked. It is a matter for the discretion of the court to be exercised where the court is satisfied that there is a good or convenient reason to do so. The grounds upon which the court may, in its discretion, revoke the grant are not closed. The discretion is broad and general. The proper exercise of the discretion will always turn on the particular facts of the case. As will be read, it is clear that the jurisdiction to revoke a grant is a supervisory, and a protective, one.
(Notwithstanding this statutory power, the court is also possessed of an inherent power, by reason of the conferral of the power to make a grant of probate or administration, to revoke or suspend its own grant for just cause.)
The factors influencing the exercise of the Court's discretion were discussed by Powell J in Neilson v Public Trustee; The Estate of Ellen Letitia Neilson (Supreme Court (NSW), Powell J, 8 May 1992, unrep) at 14-15 and applied in Richardson v Rearden at [16] (Campbell J).
More recently, Lindsay J has elaborated on the principles surrounding the exercise of the discretion to revoke a grant of probate in the cases of Estate Kouvakas; Lucas v Konakas at [304]-[306], and in Estate Cockell; Cole v Paisley [2016] NSWSC 349 at [51]-[55]. I have also previously outlined the principles related to the revocation of a grant of probate in Starr v Miller at [378]-[389]. It is not necessary to repeat those principles in full, but I have borne them in mind.

[21]

Testamentary Capacity

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory but is derived from the caselaw. Nor does the Court adhere to the language of testamentary capacity in the caselaw as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo [2011] QCA 308 at [66].
I have previously outlined the principles related to testamentary capacity in Starr v Miller at [410]-[465], Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751 at [657]-[718] and most recently in Robertson v Barker at [455]-[493]. It is not necessary to repeat those principles in their entirety. However, I have extracted some of the relevant principles below.
It is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, with whom Bathurst CJ and Gleeson JA agreed): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; 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)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."
("Inofficious" in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker's bounty: McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J).)
Thus, how the elements for testamentary capacity would be regarded as having been established, must vary according to the factual circumstances, that is to say the test is time, situation, person, and task, specific: Choy Po Chun v Au Wing Lun [2018] HKCA 403 at [23] (Cheung, Yuen, and Kwan JJA); Bailey v Bailey at 570 (Isaacs J). This requires a consideration of the particular will-maker, and the particular medical, or mental, conditions, she or he is suffering under in the particular situation. The degree of complexity of the will-maker's affairs and her, or his, testamentary intentions, will also directly affect the level of cognitive function required to make a testamentary instrument. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99 at 109; [2004] EWCA Civ 1554.
What was written in Banks v Goodfellow remains well settled and has proved sufficiently flexible to take account of developments, particularly in medical understanding. The statement of principle has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 at [82], [66]. It has also been described as the "classical exposition": I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [306]).
Banks v Goodfellow does not require perfect mental balance and clarity in the deceased (at 566 (Cockburn CJ)). Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters: Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40] (Lewison LJ). Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect.
This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159] (White J); King v Hudson [2009] NSWSC 1013 at [51] (Ward J)).
As was written in Simon v Byford at [40], by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory…". Thus, comprehension and appreciation of the calls on a will-maker's bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he, or she, must have the capacity to decide for himself, or herself, between competing claims. That means that he, or she, must have the ability to inform himself, or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.
Thus, capacity is not a test of memory, but rather, a test of disposition. It is the soundness of the will-maker's ability to dispose of her or his property that concerns the Court. The issue is not so much her, or his, ability to remember details, but the soundness of her, or his, ability to decide how assets are to be divided: Frizzo v Frizzo at [24].
Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the will-maker's mental state did not influence the will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. It is a question determined on the balance of probabilities: Bailey v Bailey at 570 (Isaacs J).
However, in Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290, Gleeson CJ wrote: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter."
(In the present case, of course, it is Sony, as the propounder of the 2019 Will who bears the burden of satisfying the conscience of the Court.)
In Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244, Giles JA and Brownie AJA wrote at [2]: "Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. In Harwood v Barker [1840] EngR 1087; (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions. (See also Batton Singh v Amirchand [1948] AC 161)."
In Carr v Homersham, Basten JA wrote at [47]: "To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the Court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the Court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, 'a grave matter'. A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity."
In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of appreciating the legal effect of all the clauses of the disputed will. However, it does need to be shown that the deceased understood that she, or he, was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs [2009] VSC 64 at [97]; Brown v Wade [2010] WASC 367 at [95]-[96].
I also note that in A Learmonth, C Ford, J Clark and J Ross Martyn (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) where the authors deal with particular matters which arouse suspicion, noting, at [10-36]: "A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside." [Citations omitted]
I also note that in Bool v Bool [1941] St R Qd 26 at [39], Macrossan SPJ wrote: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation."
More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]: "[Counsel for the appellants] had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what [the testator] should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why [the testator] disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of [the testator] excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator's soundness of mind, and not to general questions of perceived morality."
In Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [32]-[33], the Court wrote: "There are indeed numerous authorities where a major change of testamentary disposition has been seen as supporting an inference of incapacity in the absence of an adequate explanation. Hammond J noted in Re Rhodes: 'Where property is disposed of fairly, and in accordance with moral dictates, then only a very small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required.' Nevertheless, there is no "requirement" that a Banks v Goodfellow assessment involves an inquiry into why a will-maker has made a significant change at the time the will is executed. It would be wrong to deny capacity only because of a failure by a solicitor to so enquire. There are a number of factors taken into account in assessing capacity as outlined in Banks v Goodfellow; including evidence of lucidity and mental command, available medical assessments, and third party observations of behaviour…"
As I have recently reiterated in Starr v Miller at [457] - [458]: "Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J). Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at s19 (Lam VP)."
In Hoff v Atherton, Peter Gibson LJ, with whom Chadwick LJ and Lindsay J agreed, noted at [44] that: "In Masterman-Lister at para. 82 Chadwick L.J. pointed out that on a question of capacity the outcome was likely to be an important, although not conclusive, indicator of the existence or lack of understanding."
The same may be true in the present case.

[22]

Knowledge and Approval

In addition to showing that the deceased had testamentary capacity, the Defendant, as the propounder of the 2019 Will, must also show that she knew and approved its contents. This means no more than that the deceased "truly knew the terms of a will and intended to give effect to them": Estate Rofe [2021] NSWSC 257 at [129(b)] (Lindsay J).
The requirement of knowledge and approval is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] (Lewison J).
I have previously outlined the principles related to knowledge and approval in Starr v Miller at [466]-[485], Chant v Curcuruto at [719]-[725], and most recently in Robertson v Barker at [494]-[500]. It is not necessary to repeat those principles in full. However, I have extracted some applicable points below.
The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin.
More recently, these principles were stated in Tobin v Ezekiel. Meagher JA, with whom Basten and Campbell JJA agreed, wrote, at [46]-[48]: "Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. ... Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case ... Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator. … prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw … or, now, s 140(2) of the Evidence Act 1995".
In Starr v Miller, at [472]-[474], I discussed the development in the law's approach in situations where knowledge and approval is in issue. At [474] I concluded: "In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana, at [165] (Leeming JA)."
Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face: In re R (dec'd) [1950] 2 All ER 117 at 121. The relevant circumstances are those surrounding the preparation and execution of the will: Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [81] (Kunc J).
It is the will-maker's understanding that is decisive. The sufficiency of evidence going to whether she, or he, knew and approved the contents of the Will depends upon the circumstances of the case: Estate Rofe at [152]-[154] (Lindsay J); Paraskov v Paraskos [2002] WASC 109 at [50] (Pullin J).
Where any such suspicious circumstances exist, the proponent has the burden of removing the suspicion by proving affirmatively, by clear and satisfactory proof, that the deceased knew and approved of the contents of the document.
If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the will-maker, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
Finally, in relation to the matter generally, I emphasise that the ultimate question before the court, when assessing the validity of a will, is not whether the will is a fair one in all the circumstances of the case. A will, the provisions of which are unfair, vindictive or perverse, may still be a valid will.

[23]

The evidence of a solicitor

In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, I set out the relevant principles in relation to a solicitor taking instructions from a will-maker in circumstances where there may be a dispute. However, for the benefit of the parties in these proceedings, I shall restate what I said there, with additional principles, where necessary.
It is trite that a solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving instructions freely and voluntarily.
In Jarman on Wills (8th ed, 1951, London, Sweet and Maxwell) Vol 3 at 2073, it is written: "Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills."
If a duly executed will has been professionally prepared and then explained to the maker by an independent, and experienced, solicitor, it may be markedly more difficult to challenge its validity on the grounds of lack of capacity than in a case where those prudent procedures have not been followed.
Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed) concluded in Hawes v Burgess at [57], that it would be: "a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational."
His Lordship continued at [60]: "My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property."
Sir Scott Baker also added at [69]: "Where a will is drafted by an experienced solicitor who oversees its execution and records at or close to the time that the testatrix was compos mentis and able to give instructions persuasive evidence to the contrary is required."
Recently, in Hughes v Pritchard [2022] EWCA Civ 386, Lady Justice Asplin, after quoting the passages referred to above in Hawes v Burgess, at [79]-[80], wrote: "Miss Reed was right not to suggest in her oral submissions that Mummery LJ's dicta in Hawes v Burgess amounts to a true presumption. It seems to me to be no more than a statement of the obvious. Where the will is explicable and rational on its face, the conclusion reached by an independent lawyer who is aware of the relevant surrounding circumstances, has taken instructions for the will and produced a draft, has met with the testator, is fully aware of the requirements of the law in relation to testamentary capacity and has discussed the draft and read it over to the testator, is likely to be of considerable importance when determining whether a testator has testamentary capacity. It is a very strong thing, as Mummery LJ described it, to find that such a testator was not mentally capable of making a will. It seems to me that Mummery LJ's use of "presumption" was no more than a means of expressing the considerable importance of such evidence particularly in comparison with evidence from a medical expert who did not meet the testator and arrived at his conclusions on the basis of the papers only. I do not suggest that the evidence of such a solicitor is definitive and nor did Miss Reed. Although it is of very considerable importance and should be given due weight, obviously, the judge must evaluate all of the relevant evidence in relation to capacity. There may be clear evidence contrary to that of the solicitor. Furthermore, it should be borne in mind that the weight to be given to the conclusions reached by the lawyer drafting the will depends on the circumstances. As Christopher Pymont QC, sitting as a deputy high court judge, quite properly pointed out in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43]: "Any view a solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless". There may be good reason to place less reliance on the solicitor's evidence, depending on the circumstances."
In Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA (with whom Beach and Kyrou JJA agreed), wrote: "A solicitor who prepares a will comes under professional duties to exercise proper care and attention. In the United Kingdom, there are several decisions that inform the duty of a solicitor when taking instructions from an infirm testator. In Kenward v Adams, and Re Simpson, Templeman J said that, where a solicitor is making a will for an old or infirm testator, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Needless to say, this is a counsel of prudence that must be subject to the circumstances of the case. The exigencies of the situation may make it impracticable; nor would it need to be followed where, despite the age of the testator, he is obviously well and is proposing to make a will that distributes his estate in a manner which is uncontroversial. Where it is evident that a will may be controversial and a solicitor does not take elementary precautions, the court will have to look elsewhere if it is asked to determine capacity and knowledge and approval…"
In Rowe v Sudholz [2019] QSC 306 at [149], Applegarth J did not go as far as Santamaria JA in Veall v Veall, but preferred to say: "if the solicitor's view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little."
What was written by Vickery J in Nicholson v Knaggs at [664] is also relevant: "A considered and appropriately structured interview with the testatrix was also called for to ensure that Ms Dyke had testamentary capacity at the time. In particular two enquiries ought to have been pursued. The first was to establish whether there was any rational basis for the significant reductions proposed in the gift structure of the new will. A second line of enquiry should have been directed to ensuring that Betty Dyke comprehended the nature and extent of her estate. This was an essential step in determining whether or not this elderly person had testamentary capacity. However, this was neither done, nor attempted."
I should also mention the Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 at 107, in which Kroft J in the Manitoba Court of Queen's Bench, wrote: "5. Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity. 6. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous. 7. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood."
Even in cases where a solicitor may genuinely believe that the will maker had testamentary capacity at the time, he, or she, executed the will, that opinion does not displace the Court's role in deciding whether in fact the testator had testamentary capacity: Ruskey-Fleming v Cook [2013] QSC 142 at [63] (Mullins J). The weight to be given to the solicitor's evidence will depend on his, or her, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker's presentation to the solicitor, and whether there are any "red flags" suggesting a possible challenge to capacity. It will also depend on "the level of enquiry and discussion on the part of the lawyer of, and with, the deceased": Loosley v Powell at [51].
Red flags might include recency of hospital admissions or other medical attention received by the will-maker; whether the will-maker is making significant changes to her, or his, will; or that the will-maker is not an existing client of the firm of the solicitor. In circumstances where there are any red flags, the solicitor would be prudent to exercise more caution. In such cases, she, or he, may consider that the only way to be satisfied that the will-maker has testamentary capacity is by obtaining a medical report.

[24]

The solicitor in this case

In what follows, I remember that this case is not about the professionalism of Mr Lee, but whether the Court is satisfied of the validity of the 2019 Will.
Having read and heard Mr Lee's evidence, there are a number of aspects that satisfy me that I must consider that evidence with some care. I have already noted that there was no attack on his integrity. The attack related more to what he ought to have done, compared with what he did, as a solicitor, in relation to the deceased, in the circumstances known to him on 16 October 2019.
There is no suggestion that any of the children of the deceased participated in the instructions for, or the drafting of, the 2019 Will. Indeed, Mr Lee asked those children who were present to leave the conference room while he and Ms Li spoke with the deceased.
It appears that there is no direct evidence that Mr Lee asked the deceased, specifically, about the reasons for her attending the conference, or that he asked her age, or anything about her background. He did not describe the way the deceased looked, other than as set out above, or the way she presented to him, or the manner in which she had communicated with him or with the interpreter. He did not record any part of the opening discussion he, or the interpreter, had, with the deceased.
Yet, I am just satisfied that what he did discuss with her is sufficient to demonstrate that the deceased had the capacity to understand the nature of the act of making a will. It is likely, bearing in mind the three Wills that she had made previously, that she knew what a Will was and when it had effect.
Mr Lee acknowledged that he did not ask the deceased any questions about her assets and liabilities, although he did ascertain that the Burwood property was her asset. Thus, based upon the evidence, it is not possible to say whether the deceased was capable of telling him about any other assets that she may have had, or whether she understood the extent of the property of which she was disposing. In this regard, I remember that in the Inventory of Property, the deceased's only property referred to was the Burwood property, but also that the 2011 Will made a specific gift of monies held in the Commonwealth Bank of Australia and of the deceased's jewellery.
I am also satisfied that the conversations that Mr Lee had with the deceased demonstrated that she was aware of, at least, the persons who could be thought to have a claim upon her testamentary bounty, namely her five children.
But Mr Lee did not ask her about any prior Will, or whether there were any changes being made in the Will that he was to prepare. Had he asked, he may have ascertained the contents of the 2011 Will and the deceased's previously expressed statement in Clause 8 thereof, to the effect that the deceased was giving Boon a greater proportion of her estate in recognition of his living with her and looking after her for many years in her home and his stated commitment to continue to do so during her old age. Had he delved further, he might have ascertained that she had an enduring, and stable, pattern of bequests, which had provided a greater share of her estate to Boon.
With such information, he might have asked whether Boon had continued to look after her in the 8 years following the making of the 2011 Will. Indeed, with the exception of Rose, he does not appear to have asked about what the deceased's relationship was like with any of her children. He may have been given far more information, particularly about the relationship of Boon, and his wife, with the deceased, and about what they did, and had done for her. Perhaps, then, he would have been able to discuss Boon's potential claim for provision based upon much more than the fact that he and the deceased "lived together".
There was nothing in Mr Lee's affidavit evidence that fleshed out enquiries to demonstrate the deceased's ability to weigh the strength, if any, of the claim of any of her children. Whilst he appears to have discussed the possibility of a claim by Rose, and by Boon, for a family provision order, he did not delve into the deceased's capacity to weigh up the strength such a claim, other than noting no provision was to be made for Rose, and that Boon lived with the deceased.
Nor, it would seem, did he discuss any potential claim that could be made by Boon's wife, Alice, for a family provision order. Indeed, she was not even referred to as a potential eligible person and there was no discussion by the deceased about any claim that she may have.
Nor is there any evidence that he made enquiries about the circumstances of, particularly, Boon, in order to discuss, with the deceased, and to ascertain her understanding of the risks associated with a claim made by Boon or the extent to which he might be successful.
It is difficult to conclude that the deceased had the capacity to give, any, or any real, consideration to the competing claims upon her bounty before giving final instructions as to her testamentary dispositions.
Stating that it was for her children to sort out any issues, also does not assist in concluding that the deceased had capacity. It suggests that she may not have had the capacity to evaluate, and to discriminate between, the respective strengths of the claims of the persons with claims upon her bounty.
Nor did Mr Lee state in his evidence that he explained to the deceased that the draft will that he had prepared, when executed by the deceased, would revoke all prior wills.
As I have stated earlier, the contemporaneous diary note made by Mr Lee is also far from complete, in the sense that much of the evidence that he included in his written, and oral, evidence, given subsequently, is not established by what was written in it. Indeed, as will have been read, the contents of the diary note were quite sparse.
(Nor was there a diary note of his conversation with Ping when the conference with the deceased was arranged, and when Ping is alleged to have said that the deceased was "fine".)
As I have previously stated, there was no reference, in the diary note to the deceased having instructed him to call the children into the conference after the draft will was prepared and what was said to have occurred when he did so. I have described that earlier as a glaring omission.
In October 2019, Mr Lee was unaware of the principles referred to in Banks v Goodfellow and did not know of the propositions for which the case stood. In those circumstances, he could not have had "the Banks v Goodfellow tests at the front of his … mind": C Birtles and R Neal, Hutley's Australian Wills Precedents (9th ed, 2016, LexisNexis Butterworths) at [1.14]; Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47] (White J).
Nor did Mr Lee not appear to have been aware of the New South Wales Law Society's Client Capacity Guidelines: Civil and Family Law Matters (2003), the Guidelines for Solicitors Preparing an Enduring Power of Attorney (December 2003), or the document also prepared by the Law Society headed "When a client's capacity is in doubt: A Practical Guide for Solicitors" (2016). He was unaware of the suggestion made by the Law Society that a medical practitioner ought to be present in the case of a person whose capacity might later be the subject of challenge. He appears to have made no enquiries, or carried out any research, or read articles, or cases, about the sorts of things that a solicitor ought to be looking for when he, or she, attended upon an elderly person for the purposes of making a will.
Contrary to the clearest guidance, in well known cases, he gave no evidence of having taken any special precautions when seeing the deceased on 16 October 2019. Nor, it would appear, did Mr Lee test the deceased's cognitive powers, in any meaningful way, for the purpose of ascertaining her testamentary capacity. His reliance upon the deceased's affirmative monosyllabic responses, which, he said, led him to form the view that she had capacity, in the circumstances, hardly suffices to resolve the doubts raised by other matters to which reference has been made.
Mr Lee did not specifically test the deceased's capacity. No medical opinion to reveal her capacity was sought, or arranged, at the time of the deceased executing the 2019 Will. I appreciate that doing so would not operate as a touchstone of the validity of a will, and that non-compliance would not, on its own, demonstrate the invalidity of the 2019 Will. However, in the circumstances of this case, these steps would have assisted greatly, in avoiding, or at least minimizing, the dispute.
Whilst Mr Lee maintained his confidence that the deceased was fully aware of what she was doing at the time and that he had no reason to doubt her capacity, and whilst the evidence of an experienced, and impartial solicitor, would normally carry great weight, for all of the reasons I have set out previously, I do not gain confidence from his evidence on the ultimate question. The deceased's capacity was not adequately tested. In this regard, an affirmative, yet monosyllabic, response to a question, does not, without more, provide any real insight about the deceased's state of comprehension.
He may also have relied upon Ping having told him that the deceased was "fine", which if he did, was hardly a matter upon which reliance could be placed when he was also informed at the time she was in, or had just come out, of hospital. Bearing in mind the information available to him, he did not seek to obtain the opinion of any of the deceased's treating medical practitioners about her capacity.
Unfortunately, I have not been able to place unquestioning reliance on Mr Lee's evidence in connection with the making of the 2019 Will. I simply cannot be confident that his view as to the deceased's capacity is reliable. In my view, it has not been shown to be based on a proper assessment and otherwise soundly based.

[25]

The Interpreter's evidence

Like Mr Lee, Ms Li had not met the deceased prior to the conference on 16 October 2019. However, a prior arrangement had been made for her to be there and to interpret for Mr Lee. It was not clear whether she had been informed that she would also be one of the attesting witnesses to the deceased's signature on a Will.
Despite what might be regarded as an unusual aspect of the conference with the deceased, being that the deceased asked Mr Lee to have the children come into the conference room so that they could be told of the contents of the will being drafted, Ms Li was unable to remember anything about the events. She was unable to offer any observations about the deceased other than to reiterate that the attestation clause contained a reference to what had occurred and that if she had doubts about the deceased understanding what she was saying in Mandarin Chinese, she would have alerted the solicitor to that fact, which she did not do.
When one considers the attestation clause, I am not satisfied that great weight can be placed upon it, because, whilst it is undisputed that the deceased had an imperfect knowledge of the English language, there is a real dispute about whether she was able to understand the Mandarin Chinese language.
Furthermore, the evidence does not reveal that the 2019 Will was read over in English or read to, the deceased in the Mandarin Chinese language. I accept that what was done was done in the presence of Ms Li and Mr Lee. It is not entirely clear whether the deceased stated to Ms Li her understanding and approval of the will, which Ms Li interpreted to Mr Lee in English.
The 2019 Will was prepared by Mr Lee based on instructions conveyed to him, through an interpreter, by the deceased, whom he had never met, or spoken with, previously. It followed a single consultation with her. The Banks v Goodfellow propositions were not at the front of his mind. Neither he nor Ms Li provided any evidence that could have satisfied the Court that all of the elements of the test in Banks v Goodfellow was satisfied. The lay evidence of the other witnesses, including family members, and Ms Li, did not address any of the Banks v Goodfellow elements.

[26]

The relevance of an attestation clause

It is not essential for a will to have an attestation clause: s 6(3) of the Succession Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Succession Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].
In A Learmonth, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, London, Sweet and Maxwell) at [3-035], it is written that an attestation clause facilitates acceptance of due execution. Whilst it raises a presumption that the will was duly executed, by itself, it is not conclusive. However, it is also written that a formal attestation clause in a will, regular in form, raises a strong presumption, which presumption can only be rebutted by cogent and reliable evidence that the will was not duly executed.
In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71].
The essence of a suitable attestation clause should record the inability, or deficiency, of the will-maker in literacy, or in the English language, as the case may be, and confirm that the will was read over to the will-maker or translated to her, or him, by the person named, preferably in the will-maker's preferred language, and if possible, with confirmation that the will-maker stated that she or he knew of, and approved, its contents. The reading over, or the interpretation, should occur in the presence of the attesting witnesses (if one is not the interpreter) and the attestation clause should record that the will-maker signed the will in the presence of both witnesses, who then attested the will-maker's signature: Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 at [37] (E M Heenan J). The reading over of the will must be proper and sufficient if it is to show knowledge and approval.
In Scarpuzza v Scarpuzza, E M Heenan J wrote at [32]. "The presence of a suitable attestation clause, especially in a case like this, if adapted to acknowledge the testator's limited understanding of the English language, can assist in establishing due execution and, hence, knowledge and understanding of the contents of the will by the testator."
As the deceased could not read, or speak, English, affirmative proof of her knowledge and approval is required, and the Court must consider such proof carefully and vigilantly. The proof may take any form, provided it is strong enough to satisfy the court that the deceased knew and approved the contents of the 2019 Will.
The sufficiency of the attestation clause used in the 2019 Will is a question of some importance and concern to Boon, principally because it was said that the deceased only spoke the Hainanese dialect fluently.
In this case, there is no dispute that the 2019 Will was duly executed. However, there is a question concerning whether the facts, as stated in the attestation clause, had occurred. In In re Groffman, decd [1969] 1 WLR 733 at 736-738, Sir Jocelyn Simon P found that the evidence of certain witnesses, which was found to be credible, demonstrated that the attestation clause was contradicted by what had likely happened.
There is some evidence by Ms Li that she was retained to carry out an interpretation of the explanation by Mr Lee of the 2019 Will to the deceased. The language into which she interpreted what was said, in English, by Mr Lee, to the deceased, as the attestation clause stated, was the Mandarin Chinese language.
Both Mr Lee and Ms Li confirmed the evidence of the 2019 Will being interpreted to the deceased in the Mandarin Chinese language by Ms Li but neither wrote in his, or her, affidavit, respectively, that it had been translated in the Mandarin Chinese language to her. The Plaintiff relied on this fact.
It is also important to remember that in each of the 2011 Will and the 2000 Will, the language referred to in the attestation clause, was the Hainanese dialect rather than Mandarin Chinese.

[27]

Conclusions

I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.
The starting point is that the burden of proving testamentary capacity lies on the Defendant, who seeks to uphold the 2019 Will. It is clear that the 2019 Will was regular on its face and, apparently, rational. Due execution of the 2019 Will was established. There is, therefore, an initial presumption that, for testamentary purposes, the deceased was capable.
However, there was also no dispute, then, that Boon, in seeking the revocation of the grant of the 2019 Will, had discharged an evidentiary onus, by demonstrating circumstances that raise a doubt as to the existence of testamentary capacity, which required Sony to satisfy the conscience of the Court that the deceased had capacity at the relevant time and that she knew and approved of the contents of the 2019 Will.
Following a vigilant examination of the entirety of the evidence, and applying the conventional civil standard of proof, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(2) of the Evidence Act 1995 (NSW), I am satisfied that there remains a substantial residual doubt which is sufficient to preclude the belief that the deceased was of sound mind, memory and understanding at the time of execution of the 2019 Will.
I have come to this conclusion despite the relative simplicity of the dispositive clause of the 2019 Will, and even though it is no small thing to reach it.
Even if the 2019 Will appears rational on its face (a matter to which I shall return), that doubt has not been displaced and I am unable to make a positive finding of satisfaction that it was more likely than not that the deceased had capacity and that she knew and approved of the contents of that Will. In reaching this conclusion, I have not forgotten that testamentary capacity is not reserved for people who are wise, or fair, or reasonable: Re Griffith at 291 (Gleeson CJ).
The lay evidence of family members, on each side, was the subject of some dispute. Conversations with the deceased on the way to, or from, Mr Lee's office, or of any conversation with the deceased thereafter, about what she had done, is singularly lacking. In circumstances where the deceased was said to have wanted her children to attend with her, the failure to discuss what had occurred, is, to say the least, curious. That curiosity is heightened by the failure on the part of each party to call Ping as a witness.
There was virtually no objective evidence which demonstrated that the deceased was able to sift, and weigh, information, or that she was capable of making a purposeful decision in regard to the claims on her bounty. Importantly, the deceased did not refer to the view that she had expressed concerning Boon and did not suggest that anything had occurred which would prompt an alteration of the provision made for Boon in any earlier will that the deceased had made, or otherwise cause her to provide him with an equal, as opposed to a greater, share of her estate, as she had done in the 2011 Will.
In saying this, I have remembered that "[p]roof of testamentary capacity requires proof that the testator was capable of evaluating the claims on [her] testamentary bounty, but it is not a general requirement of a valid will that the testator actually made such an evaluation": Estate of George Aeneas McDonald; Howard v The Sydney Children's Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 at [61] (White J).
Whilst it may have appeared, without investigation, that dividing her estate between four of her five children, omitting the fifth child from whom the deceased was said to have been estranged, was simple, reasonable and rational, whether it was, in fact, any of those things must be considered in light of the facts that ought to have been known to the deceased, what had been written in the 2011 Will, and the provision that had been made for the deceased's children in each of the deceased's other wills.
I accept that one does not, necessarily, reason that because a will is rational, a will-maker has testamentary capacity. Equally, "[a]ny unreasonableness of a will, as distinct from irrationality, is of little, if any, relevance on an issue as to testamentary capacity": Starr v Miller [2022] NSWCA 46 at [65] (Macfarlan JA). Yet, even though the law may not be concerned with an objective assessment of whether the testamentary dispositions are fair and reasonable, on a question of capacity, the outcome is an important, although not conclusive, indicator of the existence, or lack, of capacity and understanding.
In this case, one might consider, bearing in mind the Mandarin Chinese word said to have been used by the deceased, there is persuasive evidence, that whilst the 2019 Will provided an "even" share to each of the four children, that provision was not "fair" or "just" to Boon. It raises a substantial doubt as to the deceased's capacity, with respect to evaluating, and discriminating, between the respective strengths of the claims of her children.
Furthermore, the simplicity of the 2019 Will does not logically bear upon whether the deceased had capacity to comprehend, appreciate, or evaluate, the claim of Boon upon her bounty. Whilst the Court may not have to conclude that the deceased could recall the terms of any of her previous wills, or the reasons why each provided as it did, here I am not actually persuaded that the deceased was capable of accessing that information, if needed, and of understanding it when reminded of it.
Furthermore, merely dividing her estate equally and leaving it "for the children to work out" if either Boon, or Rose, made a claim, does not reveal the capacity to make a conscious choice between the claims of each upon her bounty.
The Court is not persuaded that the deceased was capable of accessing, recollecting, and understanding, the facts and circumstances to enable her to weigh up the competing claims on her bounty and what she had written in the 2011 Will (or any of her earlier wills).
This is demonstrated by the dispositive clause of the 2019 Will which was inconsistent with what appears to have been the deceased's long held intention to provide more of her estate to one of her children, Boon, with whom she had lived for so many years. It would seem that she had not lived independently, for many years, principally because of the assistance, financial and otherwise, provided by Boon and his wife, Alice. This was not really the subject of any substantial dispute.
The terms of the 2019 Will also ignored the statements made by her to Boon, and to Ms Han, about what would happen on her death. It is not just a case of apparently forgetting what she had said to Boon, but also forgetting the nature of the provisions of her previous wills which reflected what she had said. No explanation for the significant change was given by the deceased.
I have not forgotten that a will-maker is not required to justify any change in testamentary dispositions whether to her, or his, solicitor, or anyone else in order to prove that she, or he, has testamentary capacity. Nor does she, or he, have to give reasons to the author of the Will. Subject to the provisions of the Succession Act, a will-maker is entitled to leave her, or his, estate as she, or he, chooses, however capricious that choice may be, and however ungrateful, or unfair, the terms may be to those whose expectations of testamentary benefit are disappointed.
However, if the terms of the disputed Will are inexplicable or irrational, it is likely that there will be serious doubt as to capacity, particularly where no reasons, let alone no cogent, apparently considered, and reasonable reasons, at all are given by the deceased to her solicitor for the exclusion of Boon.
Having capacity to comprehend the claims to which she ought to give effect, in the present case, included the deceased being able to make a judgment about whether there was any reason to depart from her long held testamentary intention of making greater provision for Boon. She required the capacity to process, and be able to weigh, the competing claims of all of her children.
How, and why, did the deceased come to change her mind? Without any explanation, or evidence of any cause, the most significant change in reducing Boon's share of the estate, in my view, demonstrates the deceased's inability to evaluate the competing claims on her testamentary bounty. The terms of the 2019 Will were, in this regard, inexplicable. Making the 2019 Will in those terms was inconsistent with a rational assessment of the greater moral obligation owed to Boon, a matter that the deceased had recognised in her earlier wills.
If that were not enough, in the present case, the use, by Ms Li, of Mandarin Chinese words that conveyed the meaning of concepts as was conveyed by Mr Lee in English, would not have been an easy task. I accept that the standard of interpretation would not be one of perfection - indeed, such a standard is likely to be impossible.
In this context, the adequacy of the communication through interpretation is of some importance. Mr Lee did not know whether all of what he was saying was accurately interpreted to the deceased and whether all of the deceased's responses were accurately conveyed to him in English.
Reaching a state of satisfaction is made even more difficult because Ms Li was unable to remember the event which occurred; because there was an absence of evidence about the standard of her interpretation; because of the dispute about the deceased's ability to speak, and understand, Mandarin Chinese; and also because of the deceased's hearing difficulties.
Perhaps not unnaturally, there was an absence of a contemporaneous written, or other, record made by Ms Li of what passed between her and the deceased. This means that there is no way for the Court to assess what the deceased actually heard because there is no transcript, or even a record, of Ms Li's translation. In this regard, it is to be remembered that Ms Li was present for 2.5 hours.
The Court may accept that Ms Li's interpretation was adequate to convey the substance of what was said, and written, by Mr Lee, and what was said by the deceased, and that being a NAATI interpreter had accurately and faithfully interpreted what she was required to interpret. However, there remains the unanswered question concerning whether there was a linguistic understanding, by the deceased, of the concepts interpreted in the Mandarin Chinese language when it is more likely than not, that the deceased's principal language of choice was Hainanese.
Because of the contents of Mr Lee's diary note, it is also more probable than not, that the deceased understood at least some of what Ms Li was interpreting to her in Mandarin Chinese, sufficient to convey the instructions to Ms Li and repeated by her to Mr Lee. Yet, even if the accuracy of the interpretation were accepted, the discussion does not provide an adequate basis for drawing a conclusion in favour of the deceased having testamentary capacity.
I have earlier referred to the fact that the deceased was not wearing her hearing aids when she attended the conference with Mr Lee and Ms Li.
Even accepting Mr Lee's evidence that the 2019 Will was explained to the deceased before its execution, in the circumstances of this case, in my view that was not sufficient. The Court must look at the evidence as a whole. As Gleeson CJ wrote in Re Griffith at 289-290, whether probate should be granted is determined on all the evidence.
Finally, whilst there was no medical evidence on the question of the deceased's condition on the day the 2019 Will was executed, I have earlier referred to the competing medical evidence, which, even at its most favourable to the Defendant, reveals a "concern" by Professor Brew about the deceased's capacity.
As has been stated, the evidence, overall, does not satisfy me that the burden on the Defendant to establish the testamentary capacity of the deceased at the relevant time she executed the 2019 Will has been discharged. Accordingly, the grant of Probate of the 2019 Will should be revoked.
Whilst testamentary capacity and knowledge and approval are distinct concepts, practically speaking evidence bearing upon one concept may also be relevant to consideration of the other. Whether the deceased knew and approved the contents of the 2019 Will, requires the Court to focus attention on whether she knew the contents thereof, and appreciated the effect of what she was doing, so that it can be said that the 2019 Will reflects the real intention and the true will of the deceased.
For many of the same reasons set out above, this is a case where the elements of suspicion arising from the circumstances are sufficient to call for affirmative proof of knowledge and approval, beyond that constituted by the due execution of an apparently rational will. Merely recognising one Mandarin Chinese word meaning "fair, just or even" in my view, is not enough bearing in mind the other matters to which I have referred.
There is another matter about the 2019 Will that causes some concern about the deceased's knowledge and approval. There does not appear to have been any reason to include, in Clause 7(b) of the 2019 Will, a reference to the named beneficiaries attaining the age of 18 years and if this had been interpreted to the deceased, and understood by her, one might have expected her to have said something. In any event, it would have been obvious to Mr Lee that each of the deceased's children had already attained that age. (I do not place too much weight on this other than to reveal the folly of using pro forma drafts without consideration of what is written in them.)
I have not forgotten the deceased was said to have invited the children into the conference room following instructions being conveyed to Mr Lee, and that Mr Lee has given evidence of what was said, which evidence he maintained in cross-examination. That evidence, however, was not mentioned in his diary note, and whilst it is a matter I have remembered, it has not dispelled the substantial doubt about her capacity and her knowledge and approval engendered by all of the other evidence.
In the circumstances, I am of the view that the grant of Probate of the 2019 Will should be revoked and that there should be a grant of Probate in solemn form of the 2011 Will.
The Court orders that: 1. Probate of the Will dated 16 October 2019 of Daisy Ut-Mui Lam, granted by the Court on 28 September 2020, be revoked. 2. Probate in solemn form of the Will made on 29 July 2011 by the deceased be granted to the Plaintiff. 3. The matter be remitted to the Senior Deputy Registrar in Probate to complete the grant. 4. The Cross-Claim, filed on 18 December 2020, be dismissed. 5. Orders that the Plaintiff's costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $125,000 (including GST), be paid out of the estate of the deceased. 6. Orders that the Defendant's costs and disbursements of the proceedings, being a specified gross sum instead of assessed costs, agreed in sum of $150,000 (including GST), be paid out of the estate of the deceased. 7. With the exception of each original Will, the exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and the Court Books be returned.

Lim v Lim

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