As I have said, the impression that I took from this video was that the deceased had deteriorated since the video taken in December 2003, but that impression must be taken together with the evidence of the witnesses who visited the deceased in April that year. The evidence is clear that by the middle of the following year the deceased was a relatively advanced stage of dementia; whether it was vascular Alzheimer's or Lewy body dementia does not matter.
Medical evidence
43 Dr Anousis was the doctor who was in charge of internal medicine at the central clinic in Athens and he was the doctor who took charge of the deceased's care during his time in hospital from 19 to 26 December 2003. Because he himself was ill in hospital, it was not possible to arrange for Dr Anousis to be cross-examined, which bears upon the weight to be given to his affidavit. His treatment of the deceased was to bring his diabetes under control. The deceased had unusually and dangerously high blood sugar levels when he was admitted to hospital, but when he was released the doctor said that he had improved considerably and would be able to return to Australia. He said that he was discharged on 26 December 2003 "into the charge of his nephew the defendant". He was asked to view the video recordings and after that he said "my recollection of the deceased has been confirmed by the Athens video recording in that I recall that the deceased was of sound memory when he was under my care. The Athens video recordings also confirm my recollection that the deceased was of sound mind whilst under my care in December 2003. I also recall that the deceased had an accurate understanding of the procedures that were being undertaken in relation to his health and the reasons for his admission and the prescription of medication." The doctor's affidavit of 26 June 2007 continues in paragraph 18 and 19 as follows:
18. I specifically recall having a conversation with the Deceased where words to the following effect were spoken just prior to his being discharged from the hospital:-
Deceased: "Doctor, is there any danger for me going on this long plane trip back to Australia?"
Me: "No. You can go. Just be sure to take your medication."
At all times during my interaction with the Deceased, the responses of the Deceased to my questions, his general alertness, and the nature of my conversations with the Deceased indicated to me that the mental functioning of the Deceased was within normal limits.
19. I confirm that at the time of his discharge from the Central Clinic of Athens on the 26th of December, the Deceased had sufficient mental capacity to understand the nature of events that surrounded him, the nature of his actions and their consequences.
44 The defendant took the deceased to Dr Kumaradeva, a general practitioner at Redfern, the first occasion being 29 December 2003 shortly after his arrival back in Australia. The defendant told the doctor about the diabetic problems and Dr Kumaradeva was given a list of the drugs being taken by the deceased. He said that he looked ill and tired on that occasion. He saw him again on 5 January 2004. This time the deceased's diabetes or sugar levels were so out of proper range that he referred him to a diabetes specialist, although the deceased did not consult that specialist. He saw him again on 7 January and checked his sugar levels, blood pressure and heart rate, which were normal. There was then some confusion in the doctors letter as to the date of the next visit, but in fact the next time he saw the deceased was on 23 February 2004. The defendant Raphael had called to see the doctor on 5 February 2004 stating that his uncle was restless and confused. The doctor without seeing the deceased prescribed Serenace to calm him down. On 23 February 2004 the deceased came with the defendant who told the doctor that the deceased was still restless and his conversation was not sensible in that he was saying he wanted to go to Greece and to get a gun. Dr Kumaradeva referred the deceased to the Community Mental Health Centre at Bondi Junction for an assessment of his mental state. He saw the deceased again on 24 March and doubled the dose of Serenace. He saw him for the last time on 14 October 2004. The deceased may have told him on that occasion or perhaps the previous visit that he was going to live on the farm near Goulburn. He gave him new scripts; he said his diabetes was again out of control. Dr Kumaradeva said during the earlier visits the mental state of the deceased was such that he was "slow and quiet, he spoke only when asked questions". He referred him to the Community Mental Health Centre as he could make no definite diagnosis. He was unable to say whether or not the deceased had delusions. He received a report from Dr Hay suggesting arrangements should be made for a full investigation but did not realise that it was he who was expected to discuss this with the deceased and arrange the follow-up.
45 Dr Hay saw the deceased as a result of the reference from Dr Kumaradeva. She wrote a letter to him on 19 March 2004 after she had seen the deceased, which unfortunately Dr Kumaradeva just filed away without taking any further action on it. Dr Hay felt the deceased was suffering from quite severe cognitive problems in that his orientation was poor as was his short term memory and he scored only 13/30 on a mini-mental state examination "which indicates severe cognitive impairment". She thought that he was suffering from a significant dementing illness, that he should receive a full dementia screen and referral to appropriate agencies for treatment, support and follow-up. Interpreting during this examination was done for the deceased by Raphael. The deceased actually fell asleep during part of the interview. The medical opinions, apart from that of Dr Kumaradeva, support the view that Serenace causes sleepiness. There is no doubt that Dr Hay considered that the deceased was in cognitive decline and she considered that it was essential that he get further treatment. Her evidence however in itself does not satisfy me that at the date the deceased made the 4th will he lacked testamentary capacity and her evidence was in no way directed to the 2nd will in 2003. Dr Hay had in fact little recall of the deceased.
46 Three other medical practitioners gave evidence in the case: Dr Rosenfeld an experienced specialist geriatrician for the plaintiff; Professor Watson a specialist neurologist; and Dr Kokkinos a specialist neurologist for the defendant. None of these doctors had seen the deceased, their evidence being based on the accounts of other witnesses and certain hospital records, but in this case there was a difference because they had all seen the video and given attention to it. Dr Rosenfeld considered that at the time he was making the 4th will the deceased was suffering from a dementing illness likely to be vascular dementia and he considered that the deceased was likely to have some frontal lobe disease. He naturally placed considerable significance on the deceased's wish to drive a car to Greece to get a gun and other comments said to have been made to Dr Kumaradeva. He thought that the video provided additional evidence of some sort of dementia, placing some emphasis on an incident where the deceased stood up and appeared to reach for Mrs Tzoumanekas' right shoulder, the fact that the deceased wiped his mouth with an open hand after taking a drink of water even though he was looking directly at Mrs Tzoumanekas, and various other matters including talk of lighting candles in church and expressions of strong negative views about Dimitrios which he said gave some evidence of tangential thinking and executive dysfunction.
47 There are a number of matters Dr Rosenfeld thought were of some significance in building up a picture which he said in the long run pointed to lack of testamentary capacity. I think it unnecessary to go into all of these, but some of them were the persistent talk about the goat attack in 2001; the fact that the deceased had said he was going to Greece to relax his nerves, which he thought was an earlier manifestation of some dysfunction; the fact that he had engaged in eccentric behaviour while living at Kingsford; the fact that there was a lot of perseveration in his speech; and the matters on the video to which I have referred. He thought the fact that the deceased was capable of relating stories about the cane fields and his experiences with a crocodile might have been 'old memory' which did not assist the defendant on the capacity question. He considered the fact the deceased was discharged from hospital in Athens to the care of his nephew significant. Nevertheless he did agree in cross-examination that it was of some significance that the deceased could remember in December, when making the 3rd will, that he had purchased a property from his sister in June and was giving that back to her son Raphael. He also considered that it was of some bearing on the matter that the deceased had been talking about the general terms of his 3rd will in September or October and that this had not slipped his mind as he made a will along those general lines when he made the 3rd will. He also accepted that the evidence of Mr Galanos, the former policeman, about the application for a shooters licence, and the deceased's recognition of Mr Georgakopoulos and his iconography were matters of some significance.
48 Dr Kokkinos is a specialist neurologist who has now been ordained as a priest in the Greek orthodox church. Dr Kokkinos provided two reports dated 27 August 2007 and 25 September 2008. His first report appears to have been given merely on the basis of the DVD. In that report he stated:-
Though I have listened intently to the conversation, I do need to conclude that I feel it is not possible for me to exclude mild dementia on the 15th and 16th December 2003. The conversation was low level, at no point were any high level intellectual issues discussed, so I really cannot comment on whether Mr Gannelos had mild dementia in December 2003. I do however feel that I can state that anyone listening to the December 2003 conversation would not have become suspicious that this man had any dementia. He comes across as a typical elderly Greek man. During the December 2003 conversation nothing pathological was evident. He demonstrates wit, a sense of humour, he could interact appropriately with the people around him, he could be engaged, demonstrated no language impairment, at no point did I note that he repeated himself, he demonstrated spontaneity. In general he was socially appropriate, not disinhibited, and really did not demonstrate any executive dysfunction that would suggest frontal lobe impairment, he demonstrate no memory, cognitive, or personality issues, and overall really there was no evidence in December 2003 recording that I witnessed that this man had dementia. I repeat however that thorough testing at the time would have been required to disclose mild dementia, but of course such testing did not occur.
49 Dr Kokkinos went on to say that he considered that the deceased was different at the time of the 2004 video recording and he wondered whether between the two he had developed some frontal lobe dysfunction. Dr Rosenfeld would say that he had that dysfunction earlier. Nevertheless he said that it was perfectly clear that in 2004 the deceased knew that he had made a will, he knew what was in it and he knew what he wanted to do with his estate. The report goes on to say:-
Between the 2003 and 2004 recordings there are some changes which are fairly obvious. Firstly of course he looks quite different, in August 2004 he had quite a long beard and long hair, and he looks somewhat untidy. He seemed generally quieter, more passive and to a degree demonstrated less spontaneity. All this leads me to wonder if between the two recordings he developed some frontal lobe dysfunction. Importantly however during the August 2004 recording he was asked about the will, and he convinced me that he clearly knew and understood that he had stated in his will that his estate was to go to Raphael, his nephew. During the recording Mr Gannelos mentions this several times he really leaves no doubt that he wanted his estate to go to Raphael. When he was asked whether he wanted some to go to his siblings, he made it obvious that he did not want this because they had upset him.
50 In his second report of 25 September 2008 Dr Kokkinos commented on Dr Rosenfeld's supplementary report made after viewing the video. So far as the getting up and touching Mrs Tzoumanekas was concerned he pointed out that Mediterranean people behave differently; he accepted that the touching might have been a little inappropriate, but that nothing could really be read into it from a brain pathology point of view. In the same way he thought that the wiping of the face with the hand of no significance. I should say that in my view that must clearly be the position. His past life, the fact that the deceased was uneducated and lived a kind of peasant life would not make it reasonable to conclude that anything could be drawn from that behaviour. Dr Kokkinos said that comments about lighting candles on going past churches were normal things for a person of Greek origin to say. His general comments on the derogatory comments about Dimitrios were that unfortunately families fight from time to time and from time to time have negative views about other members of the family. His general view was that so far as the conversations on the video were concerned it was impossible to come to any certain conclusion without formal cognitive test. However he said "it is fairly clear to me that in December 2003 Mr Gannelis did not have severe dementia or severe frontal lobe dysfunction, what I see is consistent with him having virtually no organic impairment, or having mild or mild to moderate impairment."
51 It is probably appropriate to point out that Dr Kokkinos had, I think, never appeared in court before and was not putting himself up as some expert in determining mental capacity questions on the Banks v Goodfellow tests. His evidence in cross-examination I considered to be quite convincing. He did not think the fact that the deceased was expressing derogatory comments about his brother when he was in Athens was particularly strange even though he had been cared for by his brother for at least six weeks up till that time; he did not think this indicated a neurological problem and his view was reinforced when in re-examination he was asked to consider this matter in relation to events at the Mytilini airport and the conversation which took place between Raphael, the deceased and Dimitrios on that occasion.
52 Dr Watson is a highly qualified neurologist. He gave two reports, the first before all the evidence which was subsequently admitted was available. He had the reports of Dr Kokkinos and of Dr Rosenfeld. In the second report he said that he was very struck with the change in the deceased from the video recordings taken in December 2003 and that in August 2004. he thought that the changes were best explained by the medication of Serenace which was used to treat psychosis and behavioural disturbance, but nevertheless thought that the underlying diagnosis was more likely to be Lewy Body Disease, which was a more rapidly progressing dementia than other types of dementia. There is no doubt, and it is accepted, that at the date of his death the deceased was suffering from relatively serious dementia and would not have had testamentary capacity at that time. Dr Watson considered that the deceased had suffered from a dementing illness leading up to his death but had sufficient cognitive capacity to make the 2nd and 4th wills.
53 Although this is a revocation suit the onus is on the defendant to establish the validity of the will admitted to probate in common form. To avoid any doubt there is no claim based on delusions or undue influence. The pleadings, evidence and submissions were directed to what are usually called the first, second and third requirements for testamentary capacity set out in Banks v Goodfellow (1870) LR 5 QB 549 at 565.
54 In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses. When this is done I have come to the conclusion that the deceased had testamentary capacity at the time when he made the 4th will. I have reached this conclusion having regard to the unchallenged evidence of a large number of witnesses for the defendant, particularly those witnesses who gave evidence of the memory of the deceased after not having seen him for a long period of time; my conclusions about the timing of the goat attack, although it is of course possible there might have been an earlier attack; and a general view of the evidence on the DVD recording.
55 The strongest medical evidence from the plaintiff's point of view was that of Dr Hay but it is fair to say that she had little recollection of her interview with the deceased. Cognitive failure does not of itself mean that there is no capacity to make a will. It is the extent of that failure which bears upon this. I prefer the evidence of Dr Watson to that of Dr Rosenfeld. My concern is that Dr Rosenfeld placed too much emphasis on events or pieces of evidence which did not necessarily point to incapacity. It is not disputed that at the time of the 4th will the deceased knew he was making a will. The overwhelming evidence is that he knew the nature and extent of his assets. I accept he discussed at least his Australian properties with the solicitors and he knew of his foreign assets at the time of the 3rd will. Dr Rosenfeld thought this unlikely but there is nothing to support that. He also thought the deceased was not able to consider and discriminate between those who had a claim on him. As I said on occasions during the hearing, no-one apart from Raphael had a strong claim. I give weight to the evidence of Dr Kokkinos here. In any event, as far as his brother Dimitrios is concerned it must be remembered that they had fallen into violent dispute and although Dimitrios agreed to take him into his home when he was seriously ill they fell into violent dispute again at the time of the parting at Mytilini airport. So far as the plaintiff was concerned, she may have remained in contact with the deceased, but they had not seen each other for 10 years and there had been some dispute at one stage between the plaintiff's husband and the deceased. So far as the other members of the family were concerned, none of them had any particular claim on the bounty of the deceased and there can be no doubt that the defendant was the family member who might be thought to have the greatest claim. He had acted as attorney for the deceased, he had gone to Lesbos at his uncle's request to bring him back to Australia, he had been a close companion of his uncle during his youth and within limits he had looked after his uncle when he returned to Australia. The deceased quite clearly knew that he was giving all his estate to the defendant, that he wished to do so and that he had no wish or intention of benefiting anyone else. I consider that the last will should be upheld.
56 If I was wrong in this I would have been even more convinced about the 2nd will. The deceased was in better health at the time, he made the arrangements himself, he was dealing with a purchase from his sister at the same time, and the evidence of the Greek lawyers was convincing. Very little attention was given to this will although the evidence of the Lesbos witnesses was of continuing conduct and therefore at least potentially relevant to capacity in relation to all of the later wills. Dr Rosenfeld expressed the view that in June 2003 the deceased suffered from a progressive dementing illness with cognitive impairment and impaired executive dysfunction which would not be apparent to untrained observer. He accepted that at the time of the 2nd will the deceased knew he was making a will and knew the extent of his assets. He thought the deceased would not have understood who might have a claim on his estate or been able to consider the strength of claims. I prefer the evidence of the Greek lawyers which suggests that the deceased had full capacity at this time. Their evidence is supported by the fact the deceased sought advice from his solicitors as to the requirements for a will and signed it at the same time as he was entering into another unchallenged legal agreement. Thus, even if I had found that the deceased lacked capacity at the time of the 4th will, I would have concluded that he had capacity in June 2003 when the 2nd will was made. This is the will propounded in the defendant's cross claim, and also appoints Raphael as the sole beneficiary.
57 This has been a sad, difficult and I am afraid very expensive case. However the order I will make is that the Statement of Claim be dismissed. For some reason the cross claim did not seek a grant of the 4th will in solemn form but merely made a claim of a grant for the 2nd will if the 4th will was found to be invalid. It follows that the cross claim should be dismissed, but so far as costs are concerned a general order for costs should be made. There was evidence sufficient for a grant in solemn form and if the cross claimant seeks to amend I would allow that.
58 The orders I would propose are:
1. Statement of Claim be dismissed
2. Cross claim be dismissed
I will give my tentative view on costs when giving this judgment giving the parties an opportunity to make submissions if they wish.