Mackinlay v Holliday

The 2007 will

1. The will made by the deceased on 5 April 2007 is a lengthy and rather complicated instrument. The will, which runs to 28 pages, is divided into three parts, being Part A (General Provisions), Part B (Executors' Instructions and Discretionary Powers), and Part C (Administrative Provisions).
2. The principal features of Part A are: 1. clause 3.1 provides for the appointment of executors, in the following terms: I appoint the following persons to be my executors: my spouse and my son or the survivor of them and if more than one jointly; if the above appointees both are unable or unwilling to act or to continue to act, then I appoint BRIAN HOLLIDAY and PETER STANLEY FREDERICK LAMBERT or the survivor of them and if more than one jointly provided that they may nominate one or more other persons to act in their place. 1. Clause 6.1 provides: My executors shall hold the whole of my estate (other than the proceeds of a life insurance policy or any other property or proceeds not required by law to be used for the payment of debts) of whatsoever kind and wheresoever situate on trust and, subject to the powers set out in this Will, after the: selling, calling in or converting into money any part of my estate; and payment of all or any debts and testamentary expenses associated with my death or the administration of my estate; shall deal with the balance of my estate as provided hereafter. 1. Clause 7 provides for the disposition of the deceased's personal chattels, in the following terms: 7.1 I give, free of all duties and encumbrances, my personal and household chattels as defined in the statute governing the administration of Wills and probate together with any motor vehicle, boat, aircraft, original painting, trophy, clothing, jewellery or other chattel of a personal nature owned by me or in which I hold an interest at the date of my death ("my chattels") to my executors to be distributed in accordance with this clause. 7.2 It is my strong wish that my executors distribute my chattels in accordance with the last dated list I may leave stored with my Will or amongst my private papers and signed by me. 7.3 If I fail to leave such a list, or to the extent that any of my chattels are not listed or distributed, they shall devolve in accordance with the succeeding clauses of this Will. 7.4 I direct that I do not intend that any such list shall be construed as a revocation, alteration or codicil to my will. 1. Clause 8 provides: 8.1 The powers of appointment in relation to any trust for which I hold, directly or indirectly, the power to appoint a trustee, guardian, appointor or other position (in this clause only referred to as "my trusts") shall be held by: a) my executors whilst my spouse is alive; and b) after my spouse dies, by my so [sic] or his survivor and if more than one jointly ("my appointors") provided that whilst any of my appointors are under a legal disability or have yet to attain the qualifying age, my executors shall exercise that appointor's powers in the best interests of that appointor. 8.2 Except to the extent otherwise provided in this Will, any shares that I hold in any company acting as trustee of my trusts shall be held by: a) my executors whilst my spouse is alive; and b) after my spouse dies, I direct that those shares be divided equally between the separate beneficiary testamentary trusts established in accordance with Part C of this Will for my appointors (or their respective nominees) provided that whilst any of my appointors are under a legal disability or have yet to attain the qualifying age, my executors shall hold the shares that would otherwise have been taken by the separate beneficiary testamentary trust established in accordance with Part C of this Will for the relevant appointor and exercise all rights in respect of those shares in the best interests of that appointor. 8.3 In this clause: a) "legal disability" includes being a person who is a protected beneficiary of a protective trust established pursuant to this Will (if applicable) and being an "ineligible person" as defined in accordance with Part C of this Will; b) "my appointors" also includes, where any of my son has pre-deceased me and leave children or grandchildren who survive me by thirty (30) days, my executors who shall exercise son's powers in the best interest of my son's children or grandchildren. 8.4 I state my strong wish that my trusts be administered in a manner consistent with the intentions evidenced by this Will. 1. Clause 9 provides for the disposition of the balance of the deceased's estate, relevantly in the following terms: 9. Distribution of Balance of Estate 9.1 This clause is subject both to the adjustment provisions and to the discretions given to my executors in Part B of this Will. Gift to My Spouse 9.2 Subject to the Gift Conditions, I give the balance of my estate to my spouse. If My Spouse Fails to Inherit 9.3 If my spouse fails to inherit their gift under this clause, then I make the following gifts. Gift to My Son 9.4 Subject to the Gift Conditions, I give the balance of my estate to my son. Gift to Lineal Descendants 9.5 If my son fails to inherit his gift under this clause, but leaves a child or children of his own ("the survivor(s)"), then subject to the Gift Conditions such gift shall be divided into one or more equal shares and each of the survivors will take one such share each. 9.6 If any of the survivors fail to inherit their gift under this clause, but leave a child or children of their own ("the further survivors"), then subject to the Gift Conditions such gifts shall be divided into one or more equal shares and each of the further survivors will take one such share each. … The Gift Conditions that apply to the gifts provided for under cl 9 are that the person: 1. must be alive at the date of the testator's death or be born after the testator's death; 2. must survive the testator by 30 days; 3. must attain the qualifying age; and 4. unless specifically provided otherwise, take their gift as the primary beneficiary of a trust established in accordance with Part C of the will. The qualifying age is defined to be 25 years. 1. Clause 10 provides for certain "reserve" gifts, relevantly in the following terms: 10. Reserve Distribution Provisions Where No Descendants Survive Me 10.1 This clause is subject both to the adjustment provisions and to the discretions given to my executors in Part B of this Will. 10.2 In the event that none of the persons referred to in the preceding clauses live to inherit under the preceding clauses, my executors shall hold on trust and distribute the then balance of my estate as follows. Gifts to Charities 10.3 I give the following gifts to the following charitable organisations respectively (by whatever names they may be known from time to time) to be used for the general purposes respectively thereof provided that if any of these gifts cannot take effect, then in respect of each such gift to the charitable organisation in Australia which my executors consider most nearly fulfils the objects I intend to benefit in respect of that gift and the receipt of the treasurer, secretary or public officer for the time being thereof will be an absolute discharge to my executors: a) $10,000 to the Children's Leukaemia and Cancer Research Foundation (Inc); b) $10,000 to The Children's Hospital at Westmead; c) $10,000 to The Salvation Army. Modified Gift Conditions 10.4 In this clause, wherever the Gift Conditions are expressed to apply, they shall be modified so that the gift recipient must be alive on the date of death of the last surviving person who failed to inherit under the preceding clauses ("the reserve date") or be born after the reserve date. Reserve Gifts 10.5 The then balance of my estate shall be divided into one or more equal parts and subject to the Gift Conditions, each of BARRIE BLAKE, SHIRLEY BLAKE and CORALIE COE will take one such part each and, my sister DOROTHY MACKINLAY as to 3 equal parts. …
3. In the events that happened, the deceased was survived by his spouse, Mrs Beverley Mackinlay. She died on 22 July 2022 at the age of 89. She therefore satisfied the Gift Conditions in respect of cl 9.2 of the will.

The codicil dated 22 October 2018

1. The codicil was signed by the deceased on 22 October 2018 in the presence of Mr Nicoll Mason-Jones, solicitor, and Ms Jill Mason-Jones. Jill Mason-Jones is the wife of Nicoll Mason-Jones. The codicil is relevantly in the following terms: Confirmation Subject to this Codicil I confirm my Will [dated 5 April 2007]. Changes to my Will I revoke and add to my Will as follows: (1) Revoked text: In clause 3.1: the words "my spouse and my son or the survivor of them"; In their place: the words "Brian Holliday"; (2) Revoked text: In clause 8.1a): the words "whilst my spouse is alive"; (3) Revoked text: In clause 8.1b): the words "after my spouse dies by my so or if more than one jointly"; In their place: the words "my executors"; (4) Revoked text: In clause 8.2 a): the words "whilst my spouse is alive"; (5) Revoked text: In clause 8.2 b): "after my spouse dies"; (6) Added text: In clause 9.2: after the words "my spouse" the words: "for her life if she survives my death by 30 days"; (7) Revoked text: the whole of clauses 10.3 and 10.5; and (8) Added text: After the heading "Gifts to Charities" and in place of clauses 10.3 and 10.5, I give the balance of my estate to the following in equal shares: Carvan [sic] Institute of Medical Research (ABN 62 330 391 937) National Heart Foundation (ABN 98 008 419 761) Walter and Eliza Hall Institute of Medical Research (ABN 12 004 251 423) Chris O'Brien Lifehouse (ABN 70 388 902 804) The Fred Hollows Foundation (ABN 46 070 556 642)
2. In brief, the codicil would effect the following changes: 1. instead of "my spouse and my son" being appointed as executors under cl 3.1(a), the defendant, Brian Holliday, would be appointed; 2. the powers of appointment the subject of cl 8.1, which were to be held by the executors only whilst the deceased's spouse is alive, would be held by the executors free of that limitation; 3. the shares in trustee companies the subject of cl 8.2, which were to be held by the executors only whilst the deceased's spouse is alive, would be held by the executors free of that limitation but subject to the direction in cl 8.2(b); 4. the gift in cl 9.2 of the balance of the estate to the deceased's spouse would change from an absolute gift to a gift to her for life; and 5. cll 10.3 and 10.5 would be deleted, and replaced by the gift of the balance of the estate equally to the five entities listed in the codicil.

Brief summary of applicable principles

1. In order for a will, or a codicil to a will, to be a valid testamentary instrument, it is necessary that the testator had testamentary capacity at the time the will or codicil was made, and further that the testator knew and approved the contents of the will or codicil at that time. The general principles in this regard were recently summarised by Kirk JA (with whom Bell CJ and Griffiths AJA agreed) in Lim v Lim [2023] NSWCA 84 at [7]-[12] in the following terms: 7 It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]- [6] per Basten JA): (a) the capacity to understand the nature of the act of making a will and its effects; (b) the capacity to understand the extent of the property the subject of the will; (c) the capacity to comprehend moral claims of potential beneficiaries; and (d) the absence of mental disorders or delusions which affect the testator's "mental faculties [so as] to make them unequal to the task of disposing of [their] property" (to quote Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 571-572 per Isaacs J). 8 Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]- [41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one's property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries. 9 Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA. Knowledge and approval 10 A further, obvious precondition of a valid will is that the testator knew and approved of the contents of the will. In some cases that may also require showing that they appreciated the effect of what they were doing, so that it can be said that the will contains the real intention and reflects the true will of the testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47] per Meagher JA; Lewis v Lewis [2021] NSWCA 168; (2021) 105 NSWLR 487 at [166]- [187] per Leeming JA. Again, the simpler the will the more easily it might be established that a testator knew and approved of its contents. Onus 11 It has long been established that the legal onus of proof with respect to testamentary capacity and knowledge and approval, if those issues are raised on the evidence, is on the party propounding the validity of the will. Talk of shifting burdens and of presumptions has been common in this area of the law. The way in which the question of onus is often dealt with in respect of testamentary capacity was summarised by Meagher JA in Tobin v Ezekiel at [45]: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 17 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97-98; [1857] EngR 738; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. 12 In respect of knowledge and approval, the language of "suspicious circumstances" has often been used. In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, for example, Isaacs J explained (at 528): (1) In general, where there appears no circumstance exciting suspicion that the provisions of [a testamentary instrument] may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents: Barry v Butlin 2 Moo PCC at p 484; Fulton v Andrew [1875] UKLawRpHL 3; LR 7 HL 448. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document: Baker v Batt [1838] EngR 643; 2 Moo PCC 317 at 321; Tyrrell v Painton [1893] UKLawRpPro 56; [1894] P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind App 10 at 16.
2. The point is made that the simpler the will the more easily it might be shown that the testator had the requisite capacity and knew and approved the contents of the will. I would add that, depending upon the circumstances, it may be easier to establish these matters in relation to a codicil that operates to amend a will in only limited respects (see d'Apice v Gutkovich - Estate of Abraham (No 2) [2010] NSWSC 1333 at [96]-[99] per White J, as his Honour then was; see also Croft v Sanders [2019] NSWCA 303 at [126] per White JA; Gibbons v Wright (1954) 91 CLR 423 at 438 per Dixon CJ, Kitto and Taylor JJ).
3. The standard of proof is of course the civil standard, the balance of probabilities, as embodied in s 140 of the Evidence Act 1995 (NSW). In deciding whether that standard is satisfied in any particular case, the Court must take into account certain matters, including the gravity of the matters alleged in the case.
4. The concepts of testamentary capacity and knowledge and approval are distinct, but in an evidentiary sense they are linked. Where these issues co-exist, much of the evidence will be relevant to both (see Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [128] per Leeming JA).

The codicil of 22 October 2018

1. Before turning to the evidence that was directed to the issues of testamentary capacity and knowledge and approval, it is desirable to refer to the salient evidence concerning the instructions for, and the preparation and eventual execution of, the codicil. In this regard, the relevant witnesses are the defendant, Brian Holliday, and Mr Mason-Jones.
2. Mr Holliday deposed that he was the accountant for the deceased and his wife from about July 1997 until the deceased's death on 19 October 2020. He deposed that for many years the couple had lived together in a house in Warrabri Place, West Pymble, before Mrs Mackinlay was admitted to the dementia specific unit at the Adventist Aged Care facility in Wahroonga in about June 2018. Mr Holliday deposed that he is a long-term resident of West Pymble, living about a five minute walk from the Mackinlays' home.
3. Mr Holliday deposed: …From about 1 July 1997, when I commenced acting for Rod and Beverley, I visited them at their home. Initially, the visits were work related and often involved Peter Lambert, Rod's financial adviser. Over time, Rod and I developed a friendship and some of my visits to him were for work related matters and others were for non-work related matters. From about late 2017 until about June 2018 when Beverley went into permanent care, I visited Rod and Beverley at 18 Warrabri Place most weeks and on some occasions more than once a week. In that period, most of my visits were informal, non-work related visits. After Beverley went into fulltime care, I usually visited Rod more than once a week. Rod also visited me at my house on occasions…
4. Mr Holliday deposed that from about July 2018 (after Mrs Mackinlay went into fulltime care) until late 2019, he saw the deceased about two or three times a week.
5. Mr Holliday further deposed: In or about early to mid-2018, Rod and I had a conversation during which words to the following effect were said: The deceased: I don't want to leave Derek anything. Mr Holliday: Have you given any more thought to at least leaving Derek the house? The deceased: I've been thinking about it, but I haven't decided what to do yet. Mr Holliday: When did you last look at your will? The deceased: I don't know. Mr Holliday: You should have a look at it. The deceased: Ok. Within a couple of weeks of the conversation referred to in the preceding paragraph, Rod and I had a meeting during which we said words to the effect of the following: The deceased: I've been through my will. I don't want Derek involved in my financial affairs at all. I don't want the Blakes in my will. Get Nick to do it. Mr Holliday: Ok. That evidence was not specifically challenged.
6. The reference to "Nick" in the above conversation may be understood to be a reference to Nicoll Mason-Jones. Mr Holliday deposed that he and the deceased had both known Mr Mason-Jones for a number of years, and that Mr Mason-Jones was also a long-term resident of West Pymble. There is evidence that Mr Mason-Jones had acted as the solicitor for the deceased on at least two separate occasions. The reference in the above conversation to "the Blakes" would seem to be a reference to Barrie Blake and Shirley Blake, who are referred to in cl 10.5 of the deceased's will of 5 April 2007.
7. On 10 July 2018, Mr Holliday sent an email to Mr Mason-Jones which included the following: Not to get too caught up in the detail, Rod now wishes to move forward on a couple of major fronts. Attached copies their Wills, P of A and Guardianship. Each was prepared and signed in April 2007 and there have been no changes to this date. … A situation arose last week that has resulted in Adventist Age Care making application for Guardianship to NCAT - seeking to remove Rod as the Primary Guardian and Derek Mackinlay as the alternative Guardian - in an attempt to retain a close relationship with Rod I indicated that I would be willing to take on that role. A concern is that this application may roll into involving TAG also seeking to manage Bev's financial affairs. Due to the range of investments held - in her own name, jointly with Rod and their SMSF this would be a nightmare given the way in which all of their investments are currently managed. This activity is ongoing and subject to regular reviews by their Financial Planner. What practical and legal options are available for Bev's P of A to be varied by replacing both Rod and Derek with myself of [sic] leaving Rod as the primary Enduring P of A - as now but replacing Derek with myself if Rod rescinds or ultimately is found to be lacking capacity? Following lengthy discussion with Rod and the difficult relationship with his son, which does shift from time to time, Rod is now seeking to have a new Enduring P of A prepared with myself filling that roll [sic] and if unwilling, unable or lacking capacity then it would pass to Derek. … Rod wishes to change his present Will: Remove Derek and appoint me as the sole Executor and providing for Derek to be appointed if in the event that I am unable or unwilling etc to act. Add these additional gift beneficiaries [ see point 10.3 of the current Will: … Reserve Gifts Deleted references to Dorothy Mackinlay [Deceased] and Barrie Black [sic] -[It is Rod's wish that he be removed from this category]. The current Wills are extensive and cover a lot of ground and most unlikely to have any bearing on the Estates of either Beverley or Rod. Given the simplicity of their expressed intentions. I have covered a couple of broad points with Rod - his prime intention is that Derek inherits whatever the residuary estate is… … On consideration of all issues you may suggest/advice that [sic] Rod that his existing Will should be replaced. … Rod as a restricted drivers licence [ I think it is a 20Km limit - but have nothing in writing]. He has some degree of mild cognitive impairment. I do not know with any certainty if Rod has discussed the proposed changes with Dereck [sic] and the reasons for doing so. He has now a current arrangement with Adventist Care that he can take Bev home for several hours around twice [a] week. If you need anything more from me please let me know.
8. On 13 July 2018, Mr Mason-Jones sent an email to Mr Holliday which included the following: I will later drop around to Rod Mackinlay's home a copy of this email to coordinate between him, you and me. The situation at the moment is that I have told Rod: ♣ That I want to take my time in letting the penny drop on the side of my understanding of what can wisely be done, and what not, ♣ That a factor in that is something that Rod may have forgotten about (and which may not have been briefed to you, and yet is arguably hinted at or suggested by the documentation drawn up by M.J. Fitzpatrick, the solicitor attended by both Rod and Beverley in 2007). The factor is that in 2002 (before the 2003 stage of Powers of Attorney legislation) Rod & Beverley appointed each other as their attorney under power that have these features: Untrammelled powers, A power to do things that are for the benefit of the attorney under power, apparently widely so, despite the common law position that that was not permissible, A certificate from me that made the powers endure, notwithstanding that after the powers-giving person signed the document, he or she suffered loss of capacity through unsoundness of mind ♣ That it is possible that the fees I will charge will exceed $750, and thus the law requires me to enter into a costs agreement (unless I want to face the peril of unenforceable costs), ♣ That quite late tonight I will drop around a draft costs agreement to Rod so that he may consider it overnight and on the weekend and seek advice on it if he wants to do that, and ♣ That generally, the matter should be a case of "hasten slowly".
9. On 14 July 2018, Mr Mason-Jones sent a further email to Mr Holliday which included the following: Rod and I spoke twice this evening, the first when he appointed and the second when he confirmed a start at 10:00 A.M. on Wednesday next for the conference with me at his home. He wants you there and insisted on it when I challenged the need, saying that he was not going [to] do anything without you being there (to paraphrase a bit)… His insistence on your being there goes against all the canons of prudent practice. It allows for inferences to be made that he does not have a planned series of things in his own mind that I am to do, only you do and that he is either beholden to you or relies on your being a person to store instructions with. It is not uncommon for older clients to have the crutch of a trusted helper, but I mention this to note to you that Rod's wishes increase the (non-chargeable) time spent, recording the events of instructions-taking time. I always imagine that I might have been put into the category of a "trusted helper", myself…… Again for the record, I asked Rod whether he wanted me to go ahead "on the basis of our having a costs agreement". He appeared to avoid answering that, so I asked him again, saying words to the effect of "I take it that you read my letter about costs and that we now have a costs agreement together["], to which he said "yes, I suppose so". To speed things along a little, I attach a file that is an analysis note I made today, anticipating that Rod would give me the go ahead. I have coloured some of my conclusions and comments in red-brown. I will expect that you will have read the analysis carefully well before the conference on 18 July. If you disagree with one or more of my conclusions, please let me know in what way and reasons supporting your view. … The "analysis note" referred to in the email appears to be a 4 page document described as "McK Rod rejink analysis A". That document is largely concerned with power of attorney issues, but also contains commentary in relation to the deceased's existing will.
10. On 16 July 2018, Mr Mason-Jones sent another email to Mr Holliday. This email is concerned with the proposed power of attorney in favour of Mr Holliday, and contains a suggested 10-step course of action towards the execution of a power of attorney at the conference that was then scheduled to occur on 18 July 2018. A draft power of attorney was attached to the email.
11. It appears, from a file note made by Mr Mason-Jones, that he delivered a letter to the deceased's home on 16 July 2018 that included, at least, the draft power of attorney and a copy of the email that had been sent that day to Mr Holliday.
12. On 17 July 2018, Mr Holliday sent an email to Mr Mason-Jones in relation to the draft power of attorney. Mr Mason-Jones responded by email sent later that day. That email included the following: Your suggested way of structuring the P of A for Rod is perfectly OK. I will bring a redraft to the conference with Rod, which he told me this afternoon he would like deferred to 10 A.M. Thursday the 19th. He wanted the deferral because "there is a lot to consider". I think he was talking about your availability today & the likelihood of his wanting to talk to you, rather than it be a case for more time for HIM. … Rod said he had read my letter to him of today that among other things (a) told him of my 10-step plan, (b) stressed it was not a case of a "minimum fee", (c) predicted a $270 fee if we were all quick and (d) extracted some CPA website text about accountants being asked to act as an attorney under power. …
13. On 19 July 2018, a meeting was held at the deceased's home, attended by the deceased, Mr Mason-Jones and Mr Holliday. Mr Mason-Jones gave evidence that the meeting (or conference, as he described it) was mainly concerned with the explanation he had given to the deceased about the proposed power of attorney. The proposed power of attorney had by that time been re-drafted to provide for the power to be given to Mr Holliday, but with Derek Mackinlay to be substituted as the attorney in certain circumstances. Mr Mason-Jones deposed that the conference went for about 55 minutes. His affidavit contains an account of what was said by him and by the deceased in relation to the power of attorney. The course of the meeting is also the subject of a reasonably extensive file note made by Mr Mason-Jones.
14. In relation to the deceased's will, it appears that, at some stage during the course of the 19 July 2018 meeting, Mr Holliday handed Mr Mason-Jones a letter dated 17 July 2018 from the deceased to Mr Mason-Jones. The letter was signed by the deceased, but had been prepared by Mr Holliday. The letter (which also refers to the power of attorney) included the following in respect of the deceased's will: I ask that you prepare the undermentioned in relation to my affairs and which effectively confirm what has been discussed over the last week or so. … Will I wish to have a new Will prepared and in simpler terms and scope than the present will dated 5 April 2007I [sic]. In addition to any other specific changes recommended for my circumstances and estate please incorporate these: Change in Executor The Executor of my Estate is to Brian Holliday If he is unwilling or unable to act or cannot continue to act then I appoint my son Derek Mackinlay and Peter Stanley Frederick Lambert. Gifts to Charities After some consideration this provision is to be removed, as I have decided to make any donations during the course of my life and where such will provide some tax advantages; where made to registered charities. Reserve Gifts My present Will provides for this contingency - and if on your professional assessment is [sic] should remain; please remove Barrie Blake and my late sister Dorothy Mackinlay. These points are provided as background information: A range of investments are held jointly and individually A joint investment insurance policy. There are two bank accounts We have SMSF with a corporate trustee are [sic] Beverly and I are the only members: R AND B A MACKINLAY SUPER FUND PTY LTD AFT R AND B A MACKINLAY SUPERANNUATION FUND and 18 Warrabri Place Our investment and investment strategy for all investments and the SMSF are monitored, modified and regularly reviewed by our Financial Planner Mr Peter Lambert in conjunction with myself and as required Brian Holliday. Due the range of investments held and changes that do occur I do not think there is any purpose is setting out in my Will what they may be.
15. A handwritten note apparently made by Mr Mason-Jones on an "agenda/checklist" for the conference, suggests that there is likely to have been some discussion at the meeting about having Mr Holliday (or Mr Holliday and Mr Lambert) appointed as executor. Further, Mr Mason-Jones' file note of the meeting includes the following: • On the subject of his Will, I said that I did not agree with the written instruction that I should prepare "a new Will ... in simpler terms and scope than the present", and said that the 28 pages in each Will were mainly the insertion of text that was called a testamentary trust. I do not explain what a Testamentary Trust was, except to say that the T-T-gave the power to executors to distribute property and income in a way that had tax advantages. I saw Brian nodded, apparently affirmatively • I said that many lawyers recommended that every Will should have a T-T-and at [sic] point or close to it Rod [sic] that a Codicil could make the changes he wanted. I agreed. • We did not go into the Will side much, for example I explained, as above, and I heard but did not comment further on Brian's saying that the reason for charities being excluded from the Will's gifting was that it was more desirable from a tax viewpoint to make gifts to charities while Road [sic] was alive
16. Mr Mason-Jones deposed: As to the Will and letter from Rod, I said, "I don't agree with the instruction that I should prepare a new Will in simpler terns [sic] and scope than the present". As well, I said, "The 28 pages in each Will are mainly a case of insertion into the Will of a testamentary trust". I used the word "each" because I was referring to Rod's Will and a 28 page Will of Beverley's that she had apparently signed on 5 April 2007. I also said, "The testamentary trust gives the executors power to distribute property and income in a way that has tax advantages." Rod said, "A codicil could make the changes I want." I said, "It could." Rod said, "Draw up a codicil then." I said, "Ok, I will." That evidence was not specifically challenged.
17. It appears that Mr Mason-Jones read the deceased's will on 23 July 2018. Further, it appears that he made unsuccessful attempts to contact the solicitor who drew the 2007 will (Mr Fitzpatrick) with a view to referring the deceased to that solicitor. In cross-examination, Mr Mason-Jones said he did that as a matter of courtesy, rather than because that solicitor had more expertise in dealing with wills containing testamentary trusts.
18. On about 24 July 2018, Mr Mason-Jones prepared a draft codicil. On the same day, he prepared a letter to the deceased. It is a lengthy letter, but its importance is such that it should be set out in full. The letter provides: For the record The changes to your Will that I have tried to have the attached Codicil achieve did not come from a "review" that you asked me to participate in, looking at one aspect of your situation or another and discussing one view or another. The changes came from the list of things that your instructions letter told me to do. The only call for an input from me was the part of the instructions letter that suggested that the removal or non-removal of the "reserve gifts" in your current Will was a matter for my "professional assessment". My discussions with accountant Brian Holliday in the week leading up to 19 July They were a largely a development by Brian of the changes that your eventual instructions letter covered, and how they were necessary or desirable, and similar. My instructed task was not to comment and advise on the proposed changes to your powers of attorney and Will arrangements, only to get the changes done. Why do I now comment on one aspect of your instructions? It is at this point - checking that you understand what the Codicil does - that Courts would hold that I am duty bound to raise quite a lot of detail with you. At your age 90, you are entitled to a letter that you can read and re-read, and talk over with others. Enclosures 1. A "front and back" print of the two-page instructions letter to me, signed by you, that Brian Holliday handed me (through you) at our three-person conference at your home last Thursday. You can keep this for your record This is for you to match up (1) what the letter tells me to do for you and (2) what I have done in drawing the Codicil (see next item) 2. A DRAFT (marked that way) of a one-page Codicil that aims to do what you have told me to do (with some additional changes, see below) 3. A 28-page copy of your Will of 5 April 2007 that l made from an electronic copy sent to me by Brian Holliday This for you to look at the individual lines in the Codicil and then look at the current Will and decide whether I have made the changes as you want them done If you find that task daunting, then perhaps you might ask Brian Holliday to assist you, given that he appeared to be the author of the instructions letter given to me I would like the 28 pages back for my records; especially if I am called on to comment or answer questions 4. A single-page extract I made from promotional text that your former solicitor (i.e. the one who drew the various 5 April 2018 [sic] documents) published in an internet system called "Linked In" This is for you to decide whether to ask the former solicitor to review what you have told me to do/what I have done, because of the complexity of the 2007 arrangements leading to the suggestion in the documents that people should consult certain law firms, experienced in advising on testamentary trusts, I not being one of them Mr Fitzpatrick now practices law in Castle Hill with a phone number shown in Law Society of NSW records as 0412 012 552. White Pages also shows a landline number No doubt there are other solicitors experienced in advising on testamentary trusts. At a guess, Brian Holliday and financial planner Peter Lambert may have referred you and your wife to Mr Fitzpatrick. No doubt you can ask Brian or Peter (or both of them) for a referral to a new expert The "additional changes" I mentioned above that I would like to discuss with you, first Since you appear keen to have Brian Holliday involved in instructions-giving to me, it might be appropriate that you might discuss the "additional changes" with him first, before calling on me to sit down with you to talk things over. The one big change At clause 9.2 on page 4 of your 5 April 2007 Will you give the balance of your estate to your wife. I gather that she has now been admitted to a "Dementia Specific" unit of the nursing home run by the Seventh Day Adventist church or a connected agency. That will likely mean that she is unable to amend her Will or do anything that requires her to have "capacity", i.e, to understand the nature and effect of what she might be called on to do on the "legal" side. If she survives you, armed with your entire estate (as your 5 April 2007 Will has it), your son will have the right to obtain Probate of her Will, in other words administer and perhaps wind up her estate, as swelled by all your property that you have left her. That may well be an acceptable result. I do not comment one way or the other, but one result would be different to what you have told me to achieve in your Will: to ensure that Brian Holliday is the executor entitled to seek a grant of probate of your Will above all others, and failing him, a combination of your son and Peter Lambert. You might see it as better to ensure that your wife is looked after by Brian Holliday as your executor (or failing that, your son AND Peter Lambert) during her life time, if she dies after you. It might be better that on your wife's death the task of winding up your estate is resumed and the balance of your estate will go to your son. While you are alive and still have your "capacity" it will be you that will manage the care of your wife, as long as the Seventh Day Adventist care organisation or others do nothing to affect your status as the "person responsible" and the primary carer of your wife. (Your son will not be your wife's guardian until you lose your own "capacity", if ever that happens). The resumption of winding your estate up after the end of your wife's life interest on your death will lead to this result: the benefit of your estate will go to your son, but along the way Brian Holliday will more likely than not be managing the winding up of your estate and the distribution to, or holding of it for, your son. That will mean that your estate might have to be administered for a long time. There might be tax consequences of the delayed winding up of your estate, on which tax subject I declare now that I have no ability or competence to advise you, or properly consider. You might prefer to defer signing the Codicil formally until you have gained advice on the tax consequences of your wife having a "life estate", which is what my draft aims to set up. If you call on me to help you with the formal signing of the Codicil, I will presume that you have gained the tax advice and that your decision is to change your wife's expectancy to a "life estate" as the Codicil says is the aim. Other changes In clause 8 of the Will there are references to "powers of appointment" being held by your executors while your wife is alive. Then after your wife dies clause "8.1 b)" says that the powers of appointment are to be held by your "so" (a "typo" referring to, your son, I imagine). The Codicil will remove references to your wife being alive at one stage or another. The power of appointment subject is one area in your Will that I am not familiar with. Unforeseen results can happen when one tinkers with powers of appointment. You may want to obtain advice on the subject before signing the Codicil in its present condition. OR: if you want to sign the Codicil quickly, to achieve the main changes, instruct me to delete the changes to clause 8. Your instructions to remove the gifting to charities I believe your instructions may come from a mistaken view of why there are gifts to charities as part of the lead up to the listing of the "reserved' people. I need to know that you are very clear about what you aim to do. What clause 10 of the 5 April 2007 Will is aimed at is the case where neither your wife nor your son nor any children he might have are alive at your death. Care should be taken when dealing with clause 10. If it is removed entirely and neither your wife nor your descendants survive you, there will be a partial "intestacy". The Will would nominate your executor, but there would be no one named to receive your bounty. Such as Brian Holliday might have the task of discovering who your "heirs" might be. It could be a slow, expensive and arduous task. As things stand, the effect of the Codicil will be to remove Barrie Blake, leaving Shirley Blake and Coralie Coe as your ultimate "gift-over" beneficiaries. Are your instructions about the removal of Barrie Blake based on his being dead? If that is the case and Barrie has children or grandchildren, you might be mistakenly cutting those children out of the Will? There is no need to worry about your sister Dorothy Mackinlay being named in the Will. I gather that she died some time back. That being the case, she cannot be a beneficiary of yours. If she had children, they might take her share. I understand that she was childless at her death. Closure Please consider my comments and queries before you make the changes to your Will. If in doubt, you might want to first change the nomination of your executor, and then work on a second Codicil that will make other changes. I look forward to your call or that by Brian Holliday if you want him to be your agent in setting up a further review session, or in getting the executor changes done.
19. It appears that Mr Mason-Jones provided the letter to the deceased on 25 July 2018. A copy of the letter was also provided to Mr Holliday.
20. On 2 August 2018, Mr Mason-Jones spoke to the deceased on the telephone about the letter. Mr Mason-Jones deposed: On Thursday, 2 August 2018, I telephoned Rod in the evening to discuss the Codicil and the letter referred to in the previous paragraph. I said to Rod, "Do you want to press on with the Codicil?" He said in relation to the Codicil, "It looks pretty right." In relation to either the letter or the Codicil Rod said, "I will give it more attention". I said, "I will ring or visit you next week to discuss the matter further." There were other words spoken by Rod, along the lines of, "I had the whole day with Bev after I collected her from Normanhurst. We had lunch up at Pymble. I have only just returned." During that call, I said to Rod, "The uninstructed change I have made to the Codicil was to leave your estate to Bev for her life, rather than unconditionally". He replied with, "It's not impossible that Bev could outlive me, she is four years younger. People with dementia can sometimes live a very long time."
21. Mr Mason-Jones' file note records, inter alia, that the deceased "seemed very vague" about the letter. The note records that the deceased said that he would "give it more attention". The note also records that the deceased said that "people with dementia can sometimes live a very long time".
22. It seems that on about 7 August 2018, Mr Holliday provided certain information to Mr Mason-Jones about an application for guardianship that had been made in the NSW Civil and Administrative Tribunal ("the Tribunal") by Adventist Aged Care in relation to Mrs Mackinlay. It further seems that on 10 August 2018, Mr Mason-Jones delivered a letter to the deceased, dated 9 August 2018, which included the following: It is now two weeks since I delivered to you the draft Codicil for your approval. I have spoken to you after that delivery. You told me you would give the letter I sent with the draft Codicil more attention. I spoke to Brian Holliday on 8 August. I gather he will connect up with you to help you check what the Codicil does to the text of your 2007 Will (if he hasn't done so already). He is obviously going through an intensely busy period at the moment. Brian mentioned that you commented that a "simple Will" might be easier to digest, or similar. On one view it could be said that the approach of having a Codicil of the kind that I have drawn is very simple way of doing things. I say that, presuming that: You regard what was done when you saw the Epping solicitor in 2007 as basically still satisfactory, but You want to change some things in it, and You like the idea that I have put to you of leaving your estate to Beverley for her life, such that Brian Holliday will deal with your estate, the whole way though until your son Derek comes into his own as a beneficiary. I have marked Friday, 17 August as a time to review your Will/Codicil matter. If there is no progress at or by that three-week point, I intend to give you another week to finalise the Will amendment matter and to remind you on the deadline day. If there is no substantial resolving progress in it by 24 August, I will bill you for work done to that point.
23. The letter also referred to issues in relation to the Tribunal matter, which had been listed for a hearing to take place in late September 2018. Those proceedings will be referred to later in these reasons in relation to the issue of the deceased's mental capacity.
24. It appears that Mr Mason-Jones unsuccessfully attempted to contact the deceased by telephone on 16 August 2018 to discuss the codicil.
25. On 16 August 2018, Mr Holliday sent an email to Mr Mason-Jones. The email included the following: Codicil Worked through each point in your proposed revocation and changes - the only substantive required change is in relation [to] the Reserve Gifts - Clause 10.5 and 10.6 - as Rod's wish is now to excluded [sic] all the reserve beneficiaries and replace them with these charities in equal share for their general purposes: Carvan [sic] Institute of Medical Research (ABN 62 330 391 937) National Heart Foundation (ABN 98 008 419 761) Walter and Eliza Hall Institute of Medical Research (ABN 12 004 251 423) Chris O'Brien Lifehouse (ABN 70 388 902 804) The Fred Hollows Foundation (ABN 64 070 556 642
26. The matter seems to have stalled for a period whilst the Tribunal proceedings were concluded. Mr Mason-Jones deposed that in October 2018 he received a copy of the decision of the Tribunal that had been given following a hearing that took place on 28 September 2018. The reasons for decision contain references to a report of a Dr Achar, who stated, in effect, that the deceased had capacity to make decisions for his wife. Mr Mason-Jones deposed that he then arranged a meeting with the deceased to sign the codicil.
27. On 19 October 2018, Mr Mason-Jones again made attempts to contact the deceased by telephone, but without success. Mr Mason-Jones became concerned about the deceased's wellbeing.
28. However, at about 9:49am on 22 October 2018, Mr Mason-Jones was able to speak to the deceased on the telephone to remind him that he would be coming around to his home and would take him to his office (at Mr Mason-Jones' home) for the signing of the codicil. Mr Mason-Jones' file note suggests that the deceased said that he was ready to see Mr Mason-Jones whenever he came.
29. The file note further indicates that Mr Mason-Jones arrived at the deceased's home at approximately 10:15am.
30. Mr Mason-Jones deposed: Shortly after the call, I collected Rod from his home to take him to my home office. I gave Rod a print of the final version of the Codicil to the Will that is the subject of these proceedings. I explained the Codicil and what it did. He said, after reading the text of the Codicil, "Derek was married way back. He told me that he had met the woman concerned on the Internet. That marriage was annulled", Rod using that word. I queried the word annulled. Rod's response was to say, "A Court was involved" and, "I agree, there was a dissolution of the marriage" and, "There were no children of the marriage, and Derek then entered into a de facto relationship with a woman who had children of her own. None of the children have ever been part of my household, nor will they ever be." Rod went on to say, "If my estate goes to Derek it is likely that he will spend large amounts of it on his de facto wife and her children. I am not keen on that but realise there is not much I can do about it". I then said, "It is wise not to rule from the grave". Rod said, "I agree with that" and then these words, "I am not aiming to try it yet." I explained the Codicil using words like, "You nominate Brian Holliday to be your executor" and, "With the deletion of Bev and Derek as the first-ranking executors a number of powers that they might have had is taken from them, in favour of Brian Holliday", to which Rod replied, "I think he's a safe pair of hands in stormy times." I also said, "If there is neither Bev nor Derek available to take any benefit under the Will, then the area of the 2007 Will that dealt with Gifts to Charities and Reserved gifts has been changed, such that the whole of your estate would go to the charities listed". And, "The list has come from Brian Holliday, who said that the list was your wish". Rod said, "I'm checking the list of charities" and appeared to do that and then said, "They're the ones I want." I said, "Are you happy with the Codicil?", to which Rod replied, "Yes." I took Rod in my car to my home office in Todman Avenue, West Pymble. On arrival there was a conversation between Rod and my wife, who was in wellington boots in the garden, laying mulch. The conversation between Rod, my wife and me when we got inside the house was largely about my wife having worked in Toronto in Canada, the Concorde plane that both had seen in their travels, why the construction of the Concorde had ended, sonic booms, the noise of the Concorde approaching Heathrow Airport in London, and Rod's view of the diseconomies of the Concorde due to the Americans having a noise policy that saw the plane throttle back its speed well before reaching the USA. Rod, my wife and I were the only people present at the time the Codicil was signed. We signed three prints of the Codicil. My wife did the dating. I said to Rod words like, "You have a strong hand". I gave Rod one print of the signed Codicil and said, "I will hand a copy to Brian Holliday and make an electronic copy that I will send to him". A copy of the Codicil is annexed hereto and marked "F" (page 27). I then took Rod to his home and returned to my home office. After the explanation session and in the car on the way to my home office Rod spoke of his father, telling me that his father was a World War 1 veteran who had led a very hard and frugal life in rural north western Tasmania. I said to Rod, "During my own school holidays I lived for weeks on a farm that had no reticulated electricity, water, sewerage, you name it, and I appreciate the frugal life your father led."
31. In an earlier affidavit, Mr Mason-Jones deposed that, prior to the signing of the codicil, "we read through it together".
32. Mr Mason-Jones' file note in respect of the events of 22 October 2018 includes the following: Rod Mack-- attended him on presentation to him of a copy of the amended Codicil, explained its import, his only query was along these lines: His son Derek was married in the long-distant past to someone who Derek told his father he had met "on the internet". That marriage was formally dissolved by a Court. (Rod used the word "annulled" several times, which may well have been the case, but he agreed that a Court was involved and that there was a "dissolution" of the marriage. There were no children born of that marriage. Derek had entered into a de facto relationship with a woman who has children of her own. Neither the de facto wife nor any children, be they those of the de facto wife or others, had ever been part of Rod's household, nor will they likely be If Rod's estate goes to Derek, it is likely he will spend large amounts of it on his de facto wife and her children, which prospect Rod is not keen on, but realises that there is not a lot that can be done about it. He agreed with my words "it is wise not to try to rule from the grave", and also made a clearly facetious remark about "not trying it yet" I advised that it is unlikely that Derek's de facto wife (and her children) could make a claim against Rod's estate of the "making proper provision" kind, but did not go further about the de facto wife or her children (or both) claiming against Derek's estate, if he did not make proper provision for them in his Will Nor did I raise in the context of the question that it was possible that the executor might use powers that came from the Will setting up a Discretionary Trust to ward off claims against Rod's estate by Derek or any other person. Rod ended the discussion by returning to the "you should not rule from the grave" theme for a moment, going on to other things The essence of my explanation of the Codicil was along these lines: A. Rod nominates Brian Holliday to be his executor (to which Rod replied, "I think he's a safe pair of hands in stormy times" or very similar words) B. With the deletion of his wife Bev and son Derek as the first-ranking executors (not my precise words, but the gist of what I said) a number of powers that they might have had had been taken from them, in favour of Brian Holliday C. If there was neither Bev nor Derek available to take any benefit under the 2007 Will, then the area of the 2007 Will that dealt with Gifts to Charities and Reserved gifts had been changed, such that the whole of Rod's estate would go to the charities listed, and that the list had come from Brian Holliday, Brian saying in the email that brought the list that the list was Rod's wish. I did not read the whole Codicil out aloud nor have Rod do so, but he did spend a moment silently reading the list of charities. After the explanation session and in the car on the way Rod gave a bit of a run-down of his father, a World War 1 veteran who had led a very hard life from rural northwestern Tasmania, I [sic] telling Rod that during my own school holidays I had lived for weeks on a farm that had no reticulated electricity, water, sewerage you name it, and that I appreciated the frugal life his father had led. CODICIL SIGNATURE Car to Todman Avenue 1 km, taking Rod, some eventual chit chat between him and Jill MJ, who was in wellington boots in the garden, laying mulch and then some further chit chat between Rod, Jill and me when we got inside the house, largely about the two of them having worked in Toronto in Canada, the Concorde plane that both had seen in their travels, why the construction of the Concorde had ended, sonic booms, the noise of the Concorde approaching Heathrow Airport in London, Rod's view of the diseconomies of the Concorde coming from the Americans having a noise policy that saw the plane throttle back its speed well before reaching the USA SIGNING SESSION Rod and Jill and I signed three copies. Jill did the dating. I remarked on Rod's strong hand. I gave him one copy, saying that I would hand a copy to Brian Holliday and make an electronic copy that I would send to Brian. FURTHER CHIT CHAT When I asked Rod where he had run his pharmacies he gave an account of the early days in Wollongong but did not develop the story to the end, perhaps because I was signaling to him that we might pack up for the trip to my home office. OBSERVATIONS ON CAPACITY (Only noted here, because Rod was in his nineties) The last-noted item and the preponderance of stories that were based on past events might be the only thing that someone might quibble with a conclusion I drew that Rod had good cognitive faculties. He had earlier handed me the reasons for NCAT's dismissal of the Guardianship application regarding Beverly Holliday made by a woman in the Adventist Care accommodation and had observed that (a) he (Rod) was "still the guardian" and (b) that it was a waste of time and effort THIS FILE NOTE IS NOT AN EXHAUSTIVE ACCOUNT OF EVERY BLESSED THING (BUT THERE BEING LITTLE ELSE THAT SPRINGS TO MIND BY 12:43 HR ON 221018
33. In cross-examination, Mr Mason-Jones accepted that, on the question of the reading of the codicil, his file note was more likely to be accurate than his later recollections.
34. There is no dispute that the codicil was properly signed and attested in accordance with the requirements of the Succession Act 2006 (NSW).

Summary of evidence in relation to testamentary capacity

1. As noted earlier, the defendant, as the propounder of the codicil, bears the onus of proving that the deceased had testamentary capacity in respect of the codicil at the time it was executed. In that regard, the defendant relied upon evidence given by himself and by Mr Mason-Jones, as well as documentary evidence, including medical records, that concern the deceased. The plaintiff relied upon evidence given by himself and others (including friends of the deceased and a general medical practitioner who treated the deceased), as well as some of the documentary evidence that concerns the deceased.
2. The defendant submitted that the Court should be satisfied on the whole of the evidence that the deceased had the requisite capacity at the time he executed the codicil. The plaintiff submitted that the evidence as a whole was sufficient to throw a doubt on the testator's capacity, and that the evidence adduced by the defendant was not sufficient to establish, to the satisfaction of the Court, that the deceased had the requisite capacity at the relevant time.
3. I set out below a summary of what appears, from the submissions of the parties, to be the salient aspects of the evidence.
4. Reference has already been made to evidence given by the defendant about his relationship with the deceased as his accountant, and also as a friend. The defendant gave further evidence of his observations of the deceased over the years, including evidence to the effect that: 1. aside from a few brief periods in about the last three years of his life, the deceased was able to attend to all of his activities of daily living; 2. the deceased was an avid reader of books and the newspaper (the subscription to which was not cancelled until about August 2020); 3. the deceased took a keen interest in the news, and in particular business, financial and political matters; and 4. as late as 2018, the deceased was researching a trip to the west coast of America. The defendant also gave evidence of examples of conversations he had with the deceased, including conversations in 2018 and 2019.
5. The defendant deposed that there were brief periods in about the last three years of the deceased's life, when he seemed to have some cognitive impairment. The defendant said that the worst occasion was when the deceased was admitted to hospital in 2017 following a fall at home. The defendant deposed that after his discharge from hospital, it took the deceased a further few weeks to "get back to his usually mentally sharp self". The defendant suggested that if the deceased became dehydrated it would affect his cognitive ability, for example, when he was admitted to Wollongong Hospital in November 2018. The defendant deposed that, until his "final decline from about September 2020", the deceased always recovered from the brief periods when he may have been cognitively impaired. The defendant deposed that until about September 2020, he had no concerns about the deceased's ability to understand the nature and effect of the decisions he made.
6. The evidence given by Mr Mason-Jones was essentially confined to his account of his dealings with the deceased in the period from July 2018 to October 2018, as referred to above. He deposed that he had no cause for concern or any doubts regarding the deceased's mental capacity or his ability to understand the nature and effect of the codicil he signed. Whilst Mr Mason-Jones was not directly challenged in cross-examination about that statement, he was pressed in various ways in cross-examination, particularly concerning the adequacy of his explanation to the deceased of the codicil.
7. The plaintiff deposed that, from about 2015, he observed both his parents to experience a significant decline in their cognitive abilities. He gave evidence of a number of examples of incidents or conduct that demonstrates, in his view, such a decline. These examples include: 1. losing their passports in Paris whilst on holiday in 2015; 2. on the same holiday, forgetting where a hire car had been parked; 3. the refrigerator at their home commonly being empty except for a few bottles of beer; 4. the deceased developing a short temper and becoming easily irritated, and making rude comments (such as to the plaintiff's de facto partner, Ms Sandra Pharo); 5. the deceased taking less care with his clothes and personal appearance; 6. the deceased failing to use his hearing aids, because he forgot to wear them or could not find them; 7. the declining state of cleanliness of the West Pymble home; 8. the deceased having lapses of memory and repeating himself in conversation; 9. the deceased making unannounced visits to the plaintiff's home on the Central Coast; and 10. the deceased continuing to drive his car despite being advised not to do so, having accidents whilst driving, and driving in an erratic fashion.
8. The plaintiff also referred in his affidavit to various medical records, notably in relation to the deceased's fall in August 2017 and his subsequent admission to Royal North Shore Hospital, his admission to Wollongong Hospital in November 2018, and his admission to Royal North Shore Hospital in June 2019.
9. Ms Pharo, the plaintiff's partner, gave evidence to generally similar effect to that given by the plaintiff. She gave evidence about the 2015 incident involving the loss of passports and hire car, and about the deceased having accidents whilst driving. She also gave evidence about the deceased wearing old and worn clothing, and being unshaven. She deposed that the deceased "started saying rude and offensive things in his later years" and gave an example of an incident in about 2017 or 2018 when the deceased visited the couple at their home on the Central Coast. Ms Pharo also gave evidence about the poor state of cleanliness of the deceased's West Pymble home.
10. Mr John Ellis was a longstanding friend of the deceased's. He deposed that from about 2010, he and a mutual friend, Mr John Fox, would occasionally meet for lunch with the deceased. Mr Ellis deposed that on two or three occasions the deceased failed to attend as arranged, and on one occasion explained that he had got lost on the way. Mr Ellis also gave evidence to the effect that, from about 2012, the deceased repeated himself in conversations, was focused upon "the old times", and was becoming forgetful. Mr Ellis also gave evidence of the deceased driving in an erratic manner on an occasion when he drove Mr Fox and himself to a restaurant in Gladesville.
11. Mr Fox deposed that in about October 2018 the deceased failed to turn up for a lunch at Mr Ellis' house in Beacon Hill, and later explained that he had got lost on the way. Mr Fox gave evidence that the lunch was "rescheduled" to occur at the Belrose Hotel on 24 October 2018, but the deceased again did not arrive, explaining that he instead went to the Glen Street Centre (also known as Glenrose Village, Belrose) by mistake. Mr Fox gave evidence of an occasion when the deceased drove him and Mr Ellis to a restaurant in Gladesville. Mr Fox was unclear in cross-examination as to the date of this occasion, but seemed to think that it was sometime after 24 October 2018. He also accepted that it could have occurred in about October 2017. Mr Fox deposed that the deceased drove too fast and appeared "unsteady in his lane".
12. Mr Fox gave evidence of a conversation with the deceased at the Gladesville lunch about the deceased being on a restricted driver's licence. Mr Fox deposed that the conversation included him asking the deceased to spell "world" backwards, and that the deceased appeared unable to do so.
13. Mr Steele Dawson, a friend of the plaintiff, deposed that in November 2018 he went with the plaintiff to visit the plaintiff's parents at their West Pymble home. He deposed that the deceased looked frail, was wearing unironed clothes, and was not properly shaved. He deposed that the home was "in a bad state", particularly the bathroom, and that there were unwashed dishes in the sink and dirty clothes in the living room. Mr Dawson deposed that he thought the deceased had "memory issues", as he repeated a number of times statements about transferring assets to his son.
14. Dr William Storrs is a doctor who has been in general practice since 1985. He treated the deceased for many years, until March 2018. He deposed: Based on my interactions with and observations of Mr Mackinlay during the period which I have known and treated him, from about 2017, I observed what I would describe generally as a significant decline in Mr Mackinlay's cognitive ability. I set out the basis of that conclusion in the following paragraphs. From about 2016 and especially after his long hospital admission in 2017, I observed some of the following issues arising with Mr Mackinlay: a. sometimes when Mr Mackinlay attended a consultation with me, he was not able to remember what we had discussed during the last consultation (or appeared confused or not focused); b. he refused to comply with restrictions which had been placed on his driving following his admission to the hospital where he stayed for an extended period; c. he often appeared to me to be confused about the restrictions on his driving and who carried out the driving assessment or the results of the driving assessment or the process around getting an assessment-this had to be explained to Mr Mackinlay by me on a number of occasions; d. he demonstrated little insight with the problems with his continued driving in advance of obtaining a driving assessment and the need to ensure that his vehicle had third party insurance; e. he demonstrated no insight into the safety risk he posed to other road users or to his wife, Beverly; and f. he seemed to go over the same matters each time he visited me at the surgery and never progressed or actioned anything that we had discussed at the prior consultation.
15. Dr Storrs referred in his affidavit to various medical records in relation to the deceased, made by himself or by the hospitals to which the deceased was admitted in 2017. Those records include the results of a number of cognitive function tests undertaken by the deceased (Mini Mental State Examination or "MMSE" tests and Montreal Cognitive Assessment or "MOCA" tests). Dr Storrs gave evidence about the prescribing of Aricept (or Donepezil) in relation to the deceased's dementia.
16. Dr Storrs also gave evidence of numerous interactions with the deceased about the need for him to cease driving, and the deceased's continued failure to do so.
17. In cross-examination, Dr Storrs accepted that, from August/September 2017 to late October 2017, the deceased's cognition had improved "with time and the Aricept". However, Dr Storrs noted that MMSE tests were "a very basic assessment". He stated that the deceased's functioning in his dealings with him, and his thinking processes, were deteriorating. He further stated that the main point of contention concerned the deceased's driving.
18. A letter issued by Dr Storrs dated 7 December 2020, which is likely to have been provided to the plaintiff, stated: To Whom It May Concern, Regarding my patient Mr Roderick Mackinlay 18 Warrabri Pl West Pymble 2073 Medical History 13/10/2017 Cognitive impairment This is to confirm that my patient was confirmed with cognitive impairment in late 2017 when his MMSE was 25/30 on 13/10/17. More importantly he had reduced insight and decision making, most importantly characterised by his inability to accept my advice to cease driving (especially uninsured). However his situation was also of great concern to the team at Hornsby hospital who were also unable to intervene in any worthwhile way to alter his potentially dangerous behaviour. I note that the letter is incorrect in referring to an MMSE score of 25/30 on 13 October 2017. That score was achieved on an MMSE test on 28 October 2017. The deceased's MMSE score on 13 October 2017 was 21/30. I note further that Dr Storrs prepared versions of such a letter in different terms. It is likely that these other versions were merely drafts, and that they were not issued by Dr Storrs.
19. As far as the documentary evidence is concerned, it largely consists of medical records in relation to the deceased. A large number of records were admitted into evidence. It was accepted that the parties would, by way of submissions (or chronology), identify the particular documents or types of documents that were to be relied upon. I have considered the documents so identified, but in the interests of brevity, I will refer only to some of the documents that were given some prominence by the parties and which appear to have a material bearing upon the issues of testamentary capacity and knowledge and approval. I note that a number of the documents referred to by the parties contain statements that are apparently contradicted or qualified, to at least some extent, by statements contained in other documents. For that and other reasons, I have endeavoured to read and assess the medical records in their overall context, mindful of not placing too much weight on particular documents or particular statements in documents.
20. There does not appear to be any documentary evidence of any significant cognitive impairment in the deceased prior to his fall at home and subsequent admission to hospital in August 2017. It is clear that the fall left the deceased lying on the floor of his home for many hours. He was taken by ambulance to Royal North Shore Hospital on 22 August 2017. He evidently presented in a confused state "unable to perform mini-mentals". However, a MMSE test was performed on 29 August 2017 in which he scored 20/30. An occupational therapist noted on that day that there was a high chance that the deceased was in a delirium. On 1 September 2017, the occupational therapist noted that the deceased was "still in delirium". The deceased was discharged from the hospital on about 6 September 2017, to Hornsby Hospital, for rehabilitation. The discharge referral notes included the following: Cognitive/MMSE/Delirium/Dementia Nil significant cognitive deficit found this admission
21. Whilst in Hornsby Hospital, the deceased was prescribed Aricept "for delirium". The deceased scored 15/30 on a MOCA test administered on 19 September 2017, indicating moderate cognitive impairment, although it was also noted that there was some distraction from neighbouring beds. On 21 September 2017, it was noted that Aricept appeared to be working as the deceased's "thoughts/cognition is improving". A note made on 25 September 2017 stated that the deceased's cognition had been declining for the past 8 years, that he was no longer confused or [in] delirium, and that he was at "baseline" with a "cognitive decline background". The deceased was discharged from Hornsby Hospital on about 27 September 2017. The discharge referral notes recorded that the deceased was "likely to have underlying dementia". The discharge plan included "not to drive due to cognitive decline".
22. It appears that a referral was made to Hornsby Ku-ring-gai Community Health to provide further assistance to the Mackinlays in their home. An Aged Care Assessment carried out in October 2017 assessed the deceased as eligible to receive a Home Care Package - Level 3 (which has a priority level of medium/high). A MOCA test was conducted as part of the assessment. The deceased scored 16/30 on that test.
23. Following his discharge from hospital, the deceased's next consultation with Dr Storrs occurred on 5 October 2017. It seems that there was discussion about the deceased not being able (or allowed) to drive, and about him continuing to take Aricept. Dr Storrs issued a prescription for its equivalent, Donepezil, on 14 October 2017 and again on 11 November 2017. The topic of the deceased's driving, and the need to have a driving test, was a recurring item throughout the numerous consultations that occurred in the period from October 2017 to March 2018. It is clear that the deceased continued to drive, despite receiving advice and warnings to the contrary. There is evidence that in late 2017 the deceased's car hit a gutter, causing a tyre to be punctured. There is also evidence of a minor collision occurring in April 2018 whilst the deceased was driving back from the Blue Mountains.
24. Dr Storrs administered MMSE tests upon the deceased on 13 October 2017 (score - 21/30) and 28 October 2017 (score - 25/30). These tests seem to have been undertaken in connection with the deceased obtaining an assessment of his driving ability. An Occupational Therapy Driver Assessment Report dated 8 December 2017 recommended that the deceased maintain his Class C licence, but subject to conditions that he only drive within a 5 km radius of his home between 10:00am and 3:00pm. The report noted that the deceased demonstrated "attention/concentration difficulties" and "required verbal prompting to remain on the topic of conversation".
25. In June 2018, Mrs Mackinlay became a permanent resident of the Adventist Aged Care home in Wahroonga. Some of the records in respect of her admission contain statements that bear upon the deceased's mental condition. For example, the notes of Dr Pennington refer to the deceased being a supportive carer for his wife but having his own difficulties "secondary to cognitive impairment too".
26. Reference was earlier made to an application brought by Adventist Aged Care for guardianship in relation to Mrs Mackinlay. The application was made on about 6 July 2018. That event seems to have been a precursor to the steps taken from July 2018 in respect of the power of attorney and the codicil executed by the deceased (see the email sent by the defendant to Mr Mason-Jones on 10 July 2018 referred to above at [21]). The application form contains statements to the effect that the deceased appeared to have short-term memory loss, as shown by his forgetting to bring in more clothes for his wife, and by leaving the car engine running when he left his car in the car park. There is also a reference to "? cognitive decline".
27. In the course of the application, a report was prepared by Dr Achar (who appears to have been training in the speciality of old age psychiatry). Dr Achar's report, dated 17 August 2018, includes the following: I saw Beverley yesterday in the RACF for a review of her mental state and to review her medications. One of the reasons for the review today was also to meet with the staff and her husband (NOK & POA) about some of the expressed concerns/ demands from the son. l have seen Beverley in the past (around 6 months ago) on some of my regular clozapine reviews. I am aware of her long standing history of psychosis and being managed on Clozapine for years. I am aware of her husband being her carer for many years. I am also aware that with his sudden decline in physical health in the last year, there had been some challenges in caring for her, but still managed well… … On speaking to Rod (husband), he did seem to be aware of her decline in functioning and the newer issue of incontinence. He did express being aware of her increased needs and the challenges he has been facing in supporting her at home with her increased care needs. He did express that even with increased community support he would still have difficulties in managing her needs at this point in time. He says "she is happy here and getting the care she needs. I know I am lonely and prefer if she was at home but I know I cannot manage her needs at home". He says "If I pull her out here, I won't be able to cope with her being at home", "I am supported here when I visit her daily, which is very nice and I see her happy here" Rod is aware of the recent decline in her cognition on various domains and the issue of increased her [sic] care needs being a part of her worsening cognition. He is aware of her needing ongoing care at the moment. We asked him about their sons' opinion about her not being in the care facility. He dis-agreed his son's opinion about taking her home and feels that she would be better cared for in care. He did agree in principle that they would have liked to stay together, but would not be in her best interests. Some of his quotes were "She is better off being here in care as I cannot look after her". "I would like our accountant Brian Halliday [sic] to take over guardianship for Beverley if I lose capacity" "my son is like a loose cannon and Brian is better able to make decisions in her best interests rather than my son Derek". … … 3. In my opinion Beverly has significant care needs which can be very challenging and would be considered as a deficit of care if she stays at home with her husband. Rod (husband) has ongoing physical health issues and reduced functioning which makes it hard for him to manage her complete needs in the community even with community based support. Rod does acknowledge the challenges and agrees for her to be in the care facility at this point in time. … 5. At this point in time Rod does have capacity in making decisions for Beverley at the time when she lacks the capacity in the same (due to her cognitive impairment). Her husband agrees that it may be better for an independent person/ his accountant to take on the responsibility when he no longer is able to make the same. I have asked him to formalise this decision if that is what he wants. …
28. On 28 September 2018, the Tribunal dismissed the application for guardianship. The reasons of the Tribunal included the following: 10. The Tribunal was provided with a report by Dr Bharath Achar, dated 17 August 2018. Dr Achar said he saw Mrs Mackinlay in the aged care facility to review her mental state and her medications. Another reason was to meet with the staff and her husband about some of the expressed concerns and demands from Mr Derek Mackinlay. Mr Achar said he first saw Mrs Mackinlay around six months ago and is aware of her long-standing history of psychosis and that her husband has been her carer for many years. Unfortunately with her acute physical health decline, hospital admission, incontinence issues and worsening cognition (all leading to an increased need for care and support), Mrs Mackinlay has moved into the aged care facility in recent weeks. Nursing staff report Mrs Mackinlay has been very settled in the facility with no evidence of any distress. Mrs Mackinlay requires significant support with her activities of daily living and is compliant with support offered. Nursing staff are concerned about Mr Derek Mackinlay's overassertive behaviour (including accusations) about them keeping her illegally. Mr Roderick Mackinlay advised Dr Achar that he cannot manage his wife's care needs at home and disagreed with his son's opinions about taking her home. 11. Dr Achar said Mrs Mackinlay "continues to lack capacity in all the domains of medical/dental care, accommodation and services and also about her ability to manage finances..." She has a major cognitive impairment, of mixed origin, and there has been a significant decline in her functioning. Mrs Mackinlay is doubly incontinent and has poor insight into her current deficits. She has chronic schizophrenia with no active positive symptoms of psychosis. Dr Achar said "at this point of time Rod does have capacity in making decisions for Beverley...Her husband agrees that it may be better for an independent person/his accountant to take on the responsibility when he is no longer able to make the same. I have asked him to formalise this decision if that is what he wants..." … 14. The Tribunal considers Dr Achar's report to be credible and reliable. Dr Achar has known Mrs Mackinlay for more than six months and is suitably qualified to provide an assessment about her cognitive and functional capacity. Mrs Mackinlay's presentation at the hearing was consistent with the information in Dr Achar's report. We were satisfied that Mrs Mackinlay has a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a guardianship order. … 17. Mrs Mackinlay told us that she wants her husband to continue to make decisions on her behalf. Mr Mackinlay said he wants his wife to remain at the aged care facility and that he alternative "does not bear thinking about". He said he has spoke with their son, Mr Derek Mackinlay, and described him as "a loose cannon". Mr Mackinlay said he is his wife's enduring guardian and feels he can manage the role despite being nearly 90 years old. Mr Mackinlay said he has had a healthy life. … 24. The Tribunal had regard to the evidence outlined above and was ultimately not satisfied that at this point Mrs Mackinlay's welfare and interests required that it make a guardianship order. The evidence before the Tribunal is that Mrs Mackinlay has a caring and effective informal support network that is able and willing to assist her in relation to important aspects of her life. Mrs Mackinlay's husband is her appointed guardian and is able to act as her person responsible for the purposes of giving consent to medical and dental treatment. Mr Mackinlay told us that he [sic] willing and able to undertake the role and we have no reason to doubt his evidence. Dr Achar said Mr Mackinlay currently has capacity to make decisions on his wife's behalf. If circumstances change and a need for a guardianship order was identified, a further application could be made. …
29. The documentary evidence extended into the period after the codicil was executed on 22 October 2018, and thus provides evidence of certain events that occurred in that period.
30. One such event was the deceased's admission to Wollongong Hospital on 13 November 2018. The records show that he was brought into the hospital by ambulance after being found sitting in a gutter on the side of a road. It seems that he had driven to Wollongong to try to find a friend he knew, but failed to do so. The deceased then went looking on foot, became lost, and sat down. A hospital note records "? confusion" and also "IMP - likely normal age behaviour, no features of delirium".
31. On 7 December 2018, Dr Anne Cornford, who was now the deceased's treating general practitioner, performed an MMSE test upon him. He scored 27/30. I note that one of his failings concerned the (presumably backwards) spelling of "world". Dr Cornford noted that the score of 27 indicated that no significant cognitive impairment had been identified. It seems that Dr Cornford recommended a relaxation in the deceased's licence conditions so that he could drive within a 30 km radius of his home.
32. On 13 June 2019, the deceased was admitted to Royal North Shore Hospital. He had been brought in by ambulance after a friend had called, being concerned for the deceased's "cognition and increased confusion". The friend, who is recorded as knowing the deceased very well, apparently reported a gradual decline in memory and cognition over the past 2-3 months, "coming to a peak today" when the deceased arrived at the friend's house in a confused state and unable to park or reverse his car. It is further recorded that on the previous day the deceased collected Mrs Mackinlay from the nursing home but failed to return her as planned. (I note in passing that it was put to the defendant, and he denied, that he was the friend who called the ambulance. I accept the defendant's denial. The hospital records suggest that the friend was a "retired pharmacist", and Mr Holliday's name does not appear in the records in this regard until the Discharge Summary.)
33. The deceased remained in the hospital until 20 June 2019. He scored 18/30 in a MOCA test conducted on 15 June 2019. The Discharge Summary includes a primary diagnosis of "Progressive dementia requiring placement". The deceased was placed in respite care at the Adventist Aged Care home in Wahroonga. The evidence is not clear as to how long he remained in respite care, but it seems, based on the defendant's evidence, that he remained in such care until about the end of August 2019. However, the deceased became a permanent resident of the Adventist Aged Care home in late November 2019.
34. By December 2019, the deceased had been diagnosed with multiple myeloma. It is apparent that at the time of the diagnosis, Dr Pennington was concerned as to whether the deceased had the capacity to consent to treatment. There is evidence that treatment was subsequently discussed with the deceased. On 7 February 2020, the deceased said that he never expected to get to 90 years of age and would prefer not to be treated. Dr Pennington noted that the deceased had cognitive decline and "it is difficult for him to decide for himself".
35. On 26 February 2020, Dr Pennington wrote a letter of certification in the following terms: I have been looking after Mr Roderick Mackinlay in Esther Summerville Nursing Home. Unfortunately over the last 6+ mths Mr Mackinlays cognitive function has been declining. Currently it fluctuates, but more often than not his short-term memory is poor and [h]is ability to make decisions for himself is in my view seriously impaired. I believe he is suffering from dementia which contributes to the poor cognitive function. He would benefit from a legal guardian.
36. An application for guardianship in respect of the deceased was made in March 2020 by the defendant. It seems that the application was made on the basis of a concern that the plaintiff, who held an enduring guardianship, was not making required care decisions on behalf of his father. However, the guardianship application was adjourned on 10 June 2020 to 9 July 2020, and was withdrawn, and dismissed, within that period.
37. The deceased spent a short time in Hornsby Hospital in July 2020 before returning to the nursing home. He was thereafter cared for in accordance with a palliative care plan.
38. The deceased died at the nursing home on 19 October 2020.

Determination as to testamentary capacity

1. I have already referred to the applicable principles in relation to questions of testamentary capacity (see at [11]-[14] above). The legal onus of proof on the issue rests with the defendant as the party propounding the testamentary instrument, namely, the codicil dated 22 October 2018.
2. It seems that if the codicil is rational on its face, and is shown to have been duly executed, there is a presumption that the testator was mentally competent (see Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45] per Meagher JA). However, such a presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity.
3. There is no dispute that the codicil was duly executed. Further, it is my view that, despite the infelicitous drafting that is apparent in various respects, the codicil may be regarded as rational on its face. Read with the will it seeks to amend, it can be seen to effect the changes that are broadly described above at [10]. The changes can be fairly considered to be rational, even if there could be debate about their wisdom, appropriateness, or desirability. There is thus a presumption that the deceased was mentally competent at the time he signed the codicil.
4. A question then arises as to whether the presumption is displaced by circumstances which raise a doubt as to the existence of testamentary capacity. In my opinion, at least some of the evidence adduced by the plaintiff, including the evidence about the deceased failing to turn up to lunches as arranged in or around October 2018, and the evidence concerning his driving after October 2017, raise a sufficient doubt to displace the presumption.
5. Accordingly, the question whether the deceased had testamentary capacity in relation to the codicil falls to be determined upon a consideration of the whole of the relevant evidence, without resort to any dispositive presumptions. The defendant has the onus of establishing, on the balance of probabilities, that the deceased had that capacity at the relevant time (see Worth v Clasohm (1952) 86 CLR 439 at 453 per Dixon CJ, Webb and Kitto JJ).
6. In considering the question of testamentary capacity it is, of course, necessary to focus upon the particular testamentary instrument at hand and the effect the instrument would have. As was stated by the High Court in Gibbons v Wright (supra) at 438: …the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained.
7. I have already referred to the notion that the simpler a will or codicil, the more easily it may be shown that the testator had the requisite capacity and knew and approved its contents (see at [12] above). Here, the parties were at odds as to how simple, or how complex, the codicil should be regarded. The defendant contended for simplicity, whilst the plaintiff contended for complexity. However, broadly describing the codicil by reference to such notions is of limited utility, and risks missing the point that the focus of the inquiry is upon the effect of the instrument.
8. The effect of the codicil in the present case, or the changes it would bring about, may be broadly summarised in the terms set out above at [10] which are, for convenience, repeated below: 1. instead of "my spouse and my son" being appointed as executors under cl 3.1(a), the defendant, Brian Holliday, would be appointed; 2. the powers of appointment the subject of cl 8.1, which were to be held by the executors only whilst the deceased's spouse is alive, would be held by the executors free of that limitation; 3. the shares in trustee companies the subject of cl 8.2, which were to be held by the executors only whilst the deceased's spouse is alive, would be held by the executors free of that limitation but subject to the direction in cl 8.2(b); 4. the gift in cl 9.2 of the balance of the estate to the deceased's spouse would change from an absolute gift to a gift to her for life; and 5. cll 10.3 and 10.5 would be deleted, and replaced by the gift of the balance of the estate equally to the five entities listed in the codicil.
9. It can therefore be seen that the codicil would: 1. change the identity of the executor from Mrs Mackinlay and the plaintiff, to the defendant; 2. allow the powers of appointment and shares the subject of cl 8 to be held by the executor (that is, the defendant) even after the death of Mrs Mackinlay; 3. change the gift of the balance of the estate provided for in cl 9.2 from an absolute gift to Mrs Mackinlay, to a gift to her for her life; and 4. change the "reserve" provisions the subject of cl 10 so that any such gift would go to the five entities listed in the codicil.
10. The test for testamentary capacity must be applied in the light of the above (see Croft v Sanders (supra) at [126] per White JA). The present case is not one of a testator making a fresh will, or (as in Gray v Hart [2012] NSWSC 1435 at [349]-[350]) entirely revoking a will. Neither is it a case (such as found in d'Apice v Gutkovich - Estate of Abraham (No 2) (supra)) of a testator merely revoking a particular gift. As far as gifts are concerned, the codicil would amend the gift to Mrs Mackinlay under cl 9.2, and would substitute new beneficiaries of the "reserve" gifts under cl 10. The codicil would otherwise change the identity of the executor, and extend the duration of the (new) executor's rights to hold the powers of appointment and shares the subject of cl 8.
11. In these circumstances, it would not be appropriate to slavishly seek to apply the test as formulated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 which, in any case, is not to be treated as if it were a legislative text (see Mekhail v Hana; Mekail v Hana (supra) at [164] per Leeming JA). It is necessary to answer the question of testamentary capacity by reference to a codicil that would have the particular effects described above. It is necessary to consider whether the deceased had the capacity to understand the nature of the act of making a codicil, and the effects the codicil would have, including insofar as it would affect the gifts provided for under the existing will, and the administration of the estate.
12. In approaching the question, I have endeavoured to consider the entirety of the relevant evidence, with a particular focus upon those aspects that tend to shed light on the testator's capacity in the period from July 2018 to 22 October 2018, during which time the codicil was prepared and eventually signed. The assessment of the evidence was undertaken without the benefit of any expert medical evidence as neither party sought to adduce such evidence.
13. For the following reasons, I am satisfied, on the balance of probabilities, that the deceased had testamentary capacity in respect of the codicil when he signed it on 22 October 2018.
14. I have reached that conclusion even though I consider that, during the period from July 2018 to 22 October 2018, the deceased was suffering from a degree of cognitive impairment or deficit, likely due to progressive dementia. In my opinion, the evidence of the events of that period, in particular the testimony of the defendant and Mr Mason-Jones, coupled with the related documentary evidence, is sufficient to establish that the deceased had the capacity to understand the nature of the act of making a codicil and the effects the codicil would have.
15. In submissions, the plaintiff made attacks upon the credit and truthfulness of both the defendant and Mr Mason-Jones as witnesses. I do not accept those submissions. I consider each of them to be a satisfactory witness who appeared to be attempting to give accurate evidence to the best of his ability.
16. In relation to the defendant, the plaintiff submitted that he deliberately failed to include in his affidavit relevant documents that showed his involvement in the procuring of the codicil. However, it is plain from the affidavit that the defendant had drafted the letter of instructions dated 17 July 2018 for the deceased to sign. I do not think that the defendant made any attempt to downplay his involvement. The defendant was criticised for failing to explain why there were two signed versions of the letter of instructions, but the point goes nowhere as the content of each version is the same. In addition, it was not put to the defendant that the deceased did not sign the letter of instructions, as deposed to in his affidavit. The defendant was also criticised in relation to his evidence about Dr Pennington's letter of 26 February 2020. There was inconsistency between his answers concerning his knowledge of the letter, but I do not think that the defendant was being evasive or less than candid in that regard. Finally, it was submitted that the defendant's evidence, that the deceased seemed to suffer only brief episodes of cognitive impairment in the last three years of his life, was inconsistent with the medical records. However, I do not think that his evidence in that regard was other than a genuine assessment of the deceased's overall mental condition. I would add that, in relation to all of the lay witnesses, I placed more weight upon their particular observations of the deceased than any conclusions or assessments they made of his cognitive abilities. Overall, whilst the defendant displayed a touch of irritation during cross-examination, I think that he was a satisfactory witness who was attempting to give accurate evidence to the best of his ability.
17. In relation to Mr Mason-Jones, the plaintiff submitted that he had deliberately failed to include in his affidavit relevant documents that showed the defendant's involvement in the procuring of the codicil. Again, Mr Mason-Jones' affidavit makes it clear that his initial instructions in relation to the deceased's will came from a letter that the defendant told him he had drafted himself. There was no attempt to conceal the defendant's involvement. Mr Mason-Jones' affidavit did not annex a number of additional documents that were on his file (and were produced pursuant to a notice), but his failure in that regard was not in my view sinister. The plaintiff criticised Mr Mason-Jones for not accepting that the defendant had been involved in giving instructions to him. It was apparent that Mr Mason-Jones was at pains to make clear that his client was the deceased, not the defendant, such that any instructions were those of the deceased. Mr Mason-Jones displayed some defensiveness in that regard, but I do not consider that he was being evasive or lacking in candour. After all, his stated position reflected the reality that the deceased was the client and the defendant was providing assistance to the deceased in his dealings with his solicitor. Mr Mason-Jones was also criticised for failing to explain why there were two signed versions of the letter of instructions but, again, the point goes nowhere as the content of each version is the same. Mr Mason-Jones evidently had difficulty recalling some of the details of the events of 2018, but in my view he too was a satisfactory witness who was attempting to give accurate evidence to the best of his ability.
18. The existence of a degree of cognitive impairment or deficit in the relevant period is supported by the medical records concerning the deceased's condition from the time of his hospital admissions in 2017, together with many of the observations of the deceased made by the witnesses called in the plaintiff's case, including Dr Storrs.
19. The Royal North Shore Hospital records suggest that in September 2017 the deceased had a cognitive deficit, albeit not a significant one. The Hornsby Hospital notes at that time suggest that the deceased had recovered to a "baseline" level that involved cognitive decline, to a degree that was unspecified other than that it was said to be of sufficient magnitude to require the deceased to no longer drive. The Hornsby Hospital records also indicate that the deceased was likely to have underlying dementia.
20. The MMSE and MOCA tests carried out on the deceased are suggestive of mild to moderate cognitive decline, and seem to indicate some improvement in the deceased's condition following his discharge from hospital in 2017. Dr Storrs accepted that, but cautioned against placing too much weight upon the results of such tests (see also Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [141]-[145] per Meek J). I note that in December 2018 (6-7 weeks after the codicil was signed) the deceased scored 27/30 on an MMSE test, with some of the marks lost due to an inability to spell "world" backwards - an inability that was manifest on a few occasions, including when Mr Fox confronted the deceased with the question at the lunch in Gladesville.
21. The observations of the plaintiff's witnesses clearly show that the deceased suffered from memory lapses and episodes of confusion, and I am prepared to accept that there was some deterioration in the deceased's general functioning. That deterioration was shown in a decline in standards of dress and presentation, and cleanliness of the West Pymble home. However, having regard to the evidence of the defendant, who appears to have had as much or more regular contact with the deceased than anyone throughout the relevant time, I do not think that the decline in function in the period from September 2017 to October 2018 was a marked one. I note that the plaintiff sent an email on 4 July 2018 (in relation to the obtaining of home care assistance for his parents) that contained a statement that his father was "still OK" and could drive and cook. Further, it is difficult to draw any firm conclusions about the extent to which the decline in function may have been attributable to cognitive impairment as opposed to other reasons. It may be recalled that the defendant gave evidence, which was not directly challenged, about the deceased being an avid reader of books and the newspaper. There was documentary evidence that indicated that the deceased continued his reading of newspapers until the early months of 2020.
22. The plaintiff placed some emphasis on the evidence concerning the deceased's continued driving despite being forbidden to do so. It was submitted that this demonstrated a lack of insight that was consistent with significantly impaired cognitive function. However, I do not think that too much weight should be placed on that evidence as an indicator of cognitive function. The evidence certainly painted a picture of the deceased being careless with his driving, and being involved in a number of relatively minor accidents. It seems that he may have scraped a neighbour's parked car on no fewer than four separate occasions, and there is evidence of minor collisions occurring on a trip to the Central Coast and coming back from a trip to the Blue Mountains. It is clear that the deceased was fond of driving. The plaintiff deposed that his father "always loved driving". I gained the clear impression from the evidence that the deceased was well aware of the limitations and restrictions that had been placed upon him in that regard. It is clear that the deceased refused to accept those limitations and restrictions, and thus deliberately flouted the rules. I note, for example, that the Wollongong Hospital records suggest that the deceased was aware in November 2018 that he had transgressed when he drove all the way to Wollongong. The conduct of the deceased in relation to his driving was no doubt cavalier, and dangerous, but I do not think it demonstrates a significantly impaired cognitive function.
23. Further, as pointed out by the defendant in submissions, the report of Dr Achar dated 17 August 2018 records interactions with the deceased that suggest a degree of insight and mental processing on his part in relation to the issue of his wife's ongoing care. I note that Dr Achar was of the view that the deceased had the capacity to make decisions for his wife. However, as pointed out by the plaintiff in submissions, a capacity to make such decisions (for example as to care and medical needs) is not to be equated with testamentary capacity.
24. In addition to his evidence about the deceased's reading, the defendant gave evidence (again not directly challenged) of a conversation with the deceased in about March 2018 in which the deceased spoke of selling shares, and conversations with the deceased in early to mid-2018 about the deceased's will. The latter conversations (referred to above at [19]) suggest that the deceased had been thinking about his will, and had taken the trouble to consider it, to the point of suggesting that some changes should be made.
25. It can be inferred from the email sent by the defendant to Mr Mason-Jones on 10 July 2018 that the defendant had a conversation with the deceased which included discussion about what to do following Mrs Mackinlay's recent admission to the nursing home. It is apparent that the discussion included the topics of a new power of attorney for the deceased, and changes to his will.
26. The emails sent by Mr Mason-Jones to the defendant on 13 July 2018 and 14 July 2018 indicate that Mr Mason-Jones and the deceased had spoken on at least three occasions in relation to Mr Mason-Jones acting in the matter and in relation to a conference to be held at the deceased's home.
27. By 16 July 2018, Mr Mason-Jones had delivered a letter to the deceased's home, as well as a draft power of attorney and a copy of an email he had already sent to the defendant. I infer from Mr Mason-Jones' email to the defendant on 17 July 2018 that the deceased told Mr Mason-Jones that he had read the letter that had been delivered to him.
28. On 17 July 2018, the deceased signed a letter (addressed to Mr Mason-Jones) that had been prepared for him by the defendant. The defendant deposed that the letter set out his understanding of the deceased's instructions and that he met with the deceased "to discuss the letter and ensure that it accurately reflected his instructions". That evidence is expressed in only general terms, but it was not challenged in cross-examination. I am prepared to accept that the letter did accord with instructions given by the deceased and, further, that the deceased had that understanding at the time he signed it. The letter was evidently intended to comprise instructions to be given to Mr Mason-Jones.
29. The letter of instructions concerned a new power of attorney as well as a new will. The instructions for the new will included a clear instruction that the defendant would be the executor of the estate (unless unwilling or unable to act). There is also an instruction to "remove" the gifts to charities, and remove references to two individuals. The letter also includes a summary of the deceased's assets, noting that his investments, and the investments of a superannuation trust, were managed and reviewed by a financial planner, Mr Peter Lambert. It is likely that the deceased had at least a general understanding of the nature and extent of his assets. The letter of instructions was handed to Mr Mason-Jones at the meeting that was held at the deceased's home on 19 July 2018.
30. I accept, as essentially accurate, the evidence given by Mr Mason-Jones (in his affidavit of 26 June 2022) about the 19 July 2018 meeting. In particular, I accept that in the course of a meeting that lasted about 55 minutes, conversations occurred, involving the deceased, to the effect of those deposed to by Mr Mason-Jones in paragraphs 11 to 14 (concerning the power of attorney) and paragraphs 16 to 17 (concerning the will). The content of those paragraphs is largely supported by the terms of his file note which is likely to have been made not long after the meeting, when the meeting was fresh in Mr Mason-Jones' mind.
31. The terms of the conversations suggest that the deceased understood what was being said at the meeting. It is noteworthy that, in relation to the will, it was the deceased himself who suggested that a codicil could make the changes he wanted made to his will. I am comfortably satisfied that the deceased had the capacity to understand the nature of the act of making a codicil. In my view, he in fact held an understanding, throughout, that making a codicil would have the effect of making changes to his existing will.
32. On 25 July 2018, Mr Mason-Jones provided a lengthy letter (dated 24 July 2018) to the deceased. The letter was apparently accompanied by other documents, including the letter of instructions, a copy of the existing will, and a draft codicil. The evidence is not clear as to the form of the draft codicil that was attached. However, I think it was likely to have been either in the unamended form of the document in Exhibit C at page 4/3174, or the form of the document in Exhibit C at page 4/3142. Either way, the codicil provided for cl 3.1 of the will to be amended so that instead of "my spouse and my son or the survivor of them", "Brian Holliday" would be appointed as executor. That was what was provided for in the codicil as ultimately executed. The draft codicil also provided for amendments to cll 8.1, 8.2 and 9.2 in the same manner as the codicil as ultimately executed. However, the draft codicil was different from the codicil as ultimately executed insofar as the changes to cl 10 are concerned.
33. The letter provided to the deceased refers at some length to an "additional change", apparently suggested by Mr Mason-Jones. This change was a suggested change to the cl 9.2 gift of the balance of the estate to Mrs Mackinlay. It was proposed that instead of an absolute gift, the gift would become a gift to her for life (referred to in the letter as a "life interest" or a "life estate"). The letter also included some commentary about the proposed changes to cl 8 of the will.
34. It is likely that the deceased had read the letter by 2 August 2018. The deceased had a conversation on that day with Mr Mason-Jones, who telephoned him to discuss the codicil and the letter. I accept the evidence given by Mr Mason-Jones at paragraphs 20 to 22 of his 26 June 2022 affidavit in that regard. Mr Mason-Jones asked the deceased about the codicil and the deceased said that it "looks pretty right" but he wanted to "give it more attention". I have not overlooked the reference in Mr Mason-Jones' file note to the fact that the deceased seemed "very vague" about the letter. Even so, the likelihood remains that the deceased read the letter, which seems to be the first occasion upon which the notion of a gift for life was raised. Mr Mason-Jones' file note records that the conversation on 2 August 2018 included the topic of the gift to Mrs Mackinlay for her life. The note also records statements made by the deceased about his wife possibly outliving him, and people with dementia sometimes living for a very long time. Those statements suggest that he understood that how long Mrs Mackinlay might live was relevant to the changes to the will that were then proposed.
35. On 10 August 2018, Mr Mason-Jones provided a further letter (dated 9 August 2018) to the deceased.
36. The defendant sent an email to Mr Mason-Jones on 16 August 2018. The email suggests that, by that time, the defendant and the deceased had "worked through" each of the proposed changes to the will. The defendant refers to working through "each point in your proposed revocation and changes". That should be taken as a reference to the draft codicil. I accept, based on the terms of the email, that there had been such a working through of each of the proposed changes set out in the draft codicil. The detail of that is not the subject of any affidavit evidence from the defendant. However, the process appears to have generated a new proposal in respect of cl 10 of the will. The gift under cl 10 was now proposed to go only to five named charities, equally. I infer that the deceased was content with the other proposed changes. The new changes to cl 10 were set out in the defendant's email to Mr Mason-Jones.
37. As noted earlier, the matter seems then to have stalled for a period whilst the Tribunal proceedings were concluded. Dr Achar spoke to the deceased in connection with those proceedings on about 17 August 2018. Dr Achar's report is referred to above at [75]. As submitted by the defendant, the quotes in the report that are attributable to the deceased indicate a degree of insight and mental processing on his part in relation to the issue of his wife's ongoing care. I note further that the deceased gave evidence at the Tribunal hearing on 28 September 2018. He said, and the Tribunal accepted, that he was willing and able to undertake the role of the person responsible for giving consent to medical and dental treatment for Mrs Mackinlay.
38. I accept that Mr Mason-Jones thereafter arranged a meeting with the deceased to sign the codicil. It is not clear when that occurred, but it seems that a meeting was scheduled for 22 October 2018. It appears, from a file note made by Mr Mason-Jones, that on the morning of 22 October 2018, Mr Mason-Jones telephoned the deceased to remind him that he would be coming around that morning. The file note reveals that Mr Mason-Jones had some concern that the deceased might forget about the meeting. However, it seems that the deceased told Mr Mason-Jones during the telephone call that he was ready to see him whenever he came.
39. Subject to one matter, I accept, as essentially accurate, the evidence given by Mr Mason-Jones about the events of 22 October 2018 (see at [43] and [44] above). The matter to which I refer concerns the location of the meeting at which the explanation of the codicil occurred. At one point, the affidavit suggests that the meeting occurred in Mr Mason-Jones' home office, whereas his file note indicates that it occurred at the deceased's home, with the signing of the codicil taking place later in Mr Mason-Jones' home office. The file note is more likely to be correct.
40. I think that, as deposed to by Mr Mason-Jones, he provided an explanation of the codicil "and what it did", and the deceased read at least part of the text of the codicil. (The form of codicil had by this time been re-drafted to take into account the new changes to cl 10.) However, having regard to the answers given by Mr Mason-Jones in cross-examination on this topic, I am not satisfied that he and the deceased read through the codicil together (as Mr Mason-Jones had deposed in an earlier affidavit).
41. As for the content of the explanation given by Mr Mason-Jones, it is clear from the file note that he spoke about the defendant becoming the executor, and further stated that the defendant replacing Mrs Mackinlay and the plaintiff as executors would entail the defendant exercising powers that Mrs Mackinlay and the plaintiff would otherwise have. The deceased indicated his assent to that, describing the defendant as "a safe pair of hands". It is also clear from the file note that Mr Mason-Jones spoke about the gifts to the five listed charities. He explained that those gifts would occur if neither Mrs Mackinlay or the plaintiff were available to take any benefit under the will. Any explanation beyond those two topics is not referred to in the file note as part of what is described as "the essence of my explanation" of the codicil. Nevertheless, in the context of a meeting that seems to have occupied approximately an hour (including travelling time between the two locations), and in circumstances where Mr Mason-Jones spoke about Mrs Mackinlay and the plaintiff taking benefits under the will, it seems to me likely that Mr Mason-Jones would have at least mentioned that the codicil would change Mrs Mackinlay's gift under cl 9.2 to a gift to her for life. It is unlikely that he would not have mentioned that matter, which had been his own idea, and the subject of his letter of 24 July 2018 as well as some discussion with the deceased on 2 August 2018.
42. As for the reading of the codicil by the deceased, the file note suggests that he at least read through the list of charities, and I accept that the deceased told Mr Mason-Jones that he was "checking the list of charities".
43. The evidence referred to above, including the evidence of the interactions the deceased had with the defendant and Mr Mason-Jones, leads me to conclude that, notwithstanding that the deceased was suffering from a degree of cognitive impairment or deficit, he had the capacity on 22 October 2018 to understand the nature of the act of making a codicil and had the capacity to understand the effects the codicil would have. Put in terms of the statement of the High Court in Gibbons v Wright (supra), I think that the deceased had the capacity to understand the nature of the transaction when it is explained.
44. The effects that the codicil would have are summarised above at [94]-[95]. I am satisfied that the deceased was capable of understanding the nature of each of the changes that would be effected by the codicil if those changes were explained to him. It seems likely that the deceased in fact understood the nature of the changes concerning the appointment of the defendant as executor, the gift to Mrs Mackinlay being a gift to her for life, and the "reserve" gifts to the five listed charities. Moreover, notwithstanding some underlying complexity surrounding the subject matter of cl 8 of the will (namely, powers of appointment and shares in trustee companies), I think that the deceased was capable of understanding the nature of the changes that would be effected to cl 8 of the will had those changes been explained to him. The essence of those changes is reasonably straightforward: whereas the will provided that the powers and shares were held by the executor only whilst Mrs Mackinlay was alive, the codicil would operate so that they could be held by the executor even after her death.
45. In reaching the above conclusion as to testamentary capacity, I have taken into account, but afforded little weight to, Mr Mason-Jones' evidence that he had no cause for concern or any doubts regarding the deceased's mental capacity or his ability to understand the nature and effect of the codicil he was signing. I do not doubt that Mr Mason-Jones genuinely held that view, based on his dealings with the deceased in relation to both the power of attorney signed in July 2018 and the codicil signed in October 2018. However, I would not place significant weight on that view in circumstances where it was not shown that Mr Mason-Jones had considerable experience in dealing with elderly clients and their testamentary wishes (cf Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] per Macfarlan JA; see also Bailey v Bailey (1924) 34 CLR 558 at 572 per Isaacs J).
46. I should refer to one further matter. The plaintiff submitted that the defendant had failed to call an important witness he had the ability to call, namely, Mrs Jill Mason-Jones. It was submitted that she could have given evidence of her observations of and conversations with the deceased on 22 October 2018. The plaintiff submitted that, in those circumstances, it should be inferred that Mrs Mason-Jones' evidence would not have assisted the defendant's case, and that this should be borne in mind in determining whether the defendant had satisfied his onus of proof in relation to testamentary capacity and knowledge and approval. I have not overlooked these submissions. However, even if the inference was drawn that the evidence of Mrs Mason-Jones would not have assisted the defendant's case, I would still be satisfied that the deceased had testamentary capacity. As far as the events of 22 October 2018 are concerned, I accept Mr Mason-Jones' evidence as essentially accurate. Moreover, to the limited extent that Mr Mason-Jones gave evidence of interactions with the deceased whilst Mrs Mason-Jones was present, his evidence was entirely unchallenged. That evidence was to the effect that there was some conversation with the deceased about matters other than the codicil, followed by the signing of the codicil. Despite the absence of Mrs Mason-Jones as a witness, I see no reason not to accept Mr Mason-Jones' unchallenged evidence on these matters. I also note that there is no issue that the codicil was properly signed and attested in accordance with the requirements of the Succession Act.
47. I turn now to consider the issue of knowledge and approval.

Determination as to knowledge and approval

1. Some of the applicable principles are referred to above at [11]-[14]. I should, in addition, refer to Tobin v Ezekiel (supra) at [46], where Meagher JA stated: 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. In Thompson v Bella-Lewis [1996] QCA 27; [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.
2. Testamentary capacity and due execution have been established in the present case. Accordingly, the presumption arises that the deceased knew and approved of the contents of the codicil at the time he signed it. The plaintiff seeks to displace that presumption by alleging that circumstances exist that raise a real suspicion or doubt as to whether the codicil expresses the mind of the deceased.
3. The circumstances that are said to raise such a suspicion are particularised as: 1. Mr Holliday contacted Mr Mason-Jones, solicitor, to organise a meeting to discuss the deceased's alleged desired changes to his will; 2. Mr Holliday drafted a letter dated 17 July 2018, allegedly on behalf of the deceased, setting out the deceased's instructions regarding the changes to his will and gave that letter to Mr Mason-Jones, which was relied on by him to prepare the alleged codicil; and 3. Mr Holliday was present at the meeting between the deceased and Mr Mason-Jones to discuss the deceased's alleged desire[d] changes to his will, held on or about 19 July 2018.
4. However, no attempt was made at the hearing to establish that Mr Holliday had acted in any way improperly in relation to the codicil, including by not accurately setting out the deceased's instructions regarding changes to his will. Mr Holliday was asked some questions about the letter dated 17 July 2018 he had prepared and which was signed by the deceased, but it was not put to Mr Holliday that the content of the letter was in any way not a true reflection of the deceased's wishes.
5. The focus at the hearing was rather upon the deceased's cognitive impairment and a lack of a "proper and robust explanation" from a solicitor concerning the effect of the codicil. Reference was also made in submissions to the delay in preparing the final version of the codicil, and Mr Holliday standing to benefit from the codicil via the payment of professional fees for acting in the role of executor.
6. There was no application to amend, and no agreement by the parties to any departure from the pleadings. Nonetheless, assuming in the plaintiff's favour that it is open to him to run a case of the nature described above, and further assuming that the circumstances relied upon are sufficient to displace the presumption that would otherwise arise, I am satisfied on the whole of the evidence that the deceased knew the contents of the codicil and appreciated the effect of what he was doing, so as to conclude that the codicil contains the real intention and reflects the true will of the deceased. Again, I am so satisfied notwithstanding that Mrs Mason-Jones was not called as a witness.
7. I have found that the deceased in fact had an understanding, throughout, that making a codicil would have the effect of making changes to his existing will. I have also found that, by 16 August 2018, the deceased and Mr Holliday had worked through each of the proposed changes to the will that were set out in the draft codicil, and that the deceased was content with the proposed changes, other than in respect of cl 10 which became the subject of a new proposed change. Finally, I have found that, on 22 October 2018, it is likely that the deceased in fact understood the nature of the changes concerning the appointment of the defendant as executor, the gift to Mrs Mackinlay being a gift to her for life, and the "reserve" gifts to the five listed charities.
8. The position is less clear in relation to the proposed changes to cl 8 of the will. Here, I am satisfied that, as a result of at least Mr Mason-Jones' letter of 24 July 2018 and the process of working through each of the proposed changes with Mr Holliday by 16 August 2018, the deceased was likely aware that the powers and shares the subject of cl 8, that would be held by the executor, were to be changed. It is likely that the deceased was also aware that the change was in some way related to how long his wife remained alive, as the references to her being alive were to be deleted from the will. However, I would not be prepared to go so far as to find it likely that the deceased understood the proposed change to mean that the executor could hold the powers and shares even after his wife's death.
9. The position thus seems to be that whilst the deceased had an understanding that the codicil provided for changes to be made in respect of the holding of the powers and shares by the executor, his understanding of the precise nature and extent of the change was imperfect or incomplete.
10. I was initially attracted to the view that, in this respect, it could not be said that the deceased knew and approved of the contents of the codicil. However, it is sufficient that the testator knows and approves the gravamen of a will or codicil (see Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [187] per Leeming JA). Bearing that principle in mind, I have come to the view that, despite some deficiency in the deceased's understanding of the amendments to cl 8 of the will, he should be regarded as knowing and approving the contents of the codicil at the time he signed it.
11. The deceased was aware of the contents of the codicil, and aware that the codicil would operate to amend his will in various respects. In all bar one of those respects, he understood the nature of the change. In the other respect, he understood in general terms that there was to be a change to the executor's holding of the powers and shares the subject of cl 8, but lacked an understanding of the precise nature and extent of the change. There was no attempt to conceal the existence of the proposed changes to cl 8 of the will. To my mind, the above circumstances are sufficient to conclude that the codicil contains the real intention, and reflects the true will, of the deceased (see Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [472] per Robb J). In other words, I am satisfied that the signed codicil expresses the mind of the deceased.
12. Before leaving this topic, I should note that no questions were put to Mr Holliday concerning any benefit he might receive as a result of the codicil, whether by way of professional fees or otherwise. Further, I do not discern anything untoward in the delay in the preparation of the final version of the codicil. As I have said, the codicil matter seems to have stalled during the period in which the Tribunal proceedings were on foot, and was resumed fairly soon after the conclusion of those proceedings.
13. I should state that had I concluded that the deceased did not know and approve of the contents of the codicil insofar as the amendments to cl 8 of the will are concerned, I would have severed that part of the codicil (namely, paragraphs (2) to (5)), leaving the balance of the codicil intact, to be admitted to probate. I think that such a severance would have been available in accordance with the principles set forth in Osborne v Smith (1960) 105 CLR 153 at 159, as discussed by Leeming JA in Lewis v Lewis (supra) at [189]-[208].

Conclusion

1. I have concluded that the deceased had testamentary capacity in respect of the codicil at the time he signed it on 22 October 2018. I have also concluded that the deceased knew and approved of the contents of the codicil at that time. In these circumstances, orders should be made in accordance with the Cross-Claim, granting probate in solemn form to Mr Holliday in respect of the deceased's will dated 5 April 2007 and the codicil to that will dated 22 October 2018.
2. The plaintiff's Statement of Claim must be dismissed.
3. I will give the parties an opportunity to make submissions on costs. To that end, directions will be made for the filing and serving of brief written submissions, with a view to that question being determined on the papers.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 August 2023