Impaired social interaction: she is socially withdrawn and alienates herself from others ... she is very interactive only to staff and her friend. "
57 A similar review dated 30 January 2006 included notes that Mrs Ludewig was depressed and withdrawn, "expressing desires to go home. Denying her weakness and frailty. She also denies her incontinence. She keeps locking her door fearing other people staying by her door. ... "
58 Mrs Ludewig was referred to Dr Kathryn Brooke, a rehabilitation physician, for her painful right shoulder. On 21 September 2006 Dr Brooke reported to Dr Bulbulia that Mrs Ludewig "has a history of a painful right shoulder and describes having an operation at some stage in the past. Unfortunately she was experiencing some memory difficulties so I do not have a clear picture of the previous injury or any surgical procedures performed. Mrs Luedwig [sic] is widowed and has been a resident of the nursing home from 14 Sepember 2005. She is able to walk short distances with a walking stick or a walking frame. She is assisted with showering and dressing." Dr Brooke then dealt with the condition of Mrs Ludewig's shoulder.
59 I cannot say from Dr Brooke's report whether the information that Mrs Ludewig had been a resident from the nursing home from 14 September 2005, which was substantially accurate, was information which came from Mrs Ludewig herself, or from some other source such as Dr Bulbulia's referral.
60 The difficulty in this case is that there was no assessment of matters directly relevant to Mrs Ludewig's testamentary capacity. There is conflicting medical evidence as to whether the degree of confusion and loss of memory depicted in the nursing notes would be likely to lead to such cognitive deficits such that she lacked testamentary capacity. I do not consider that I can rely upon Dr Warneford's observations of her capacity up to August 2005 to assess her capacity in July 2006.
61 The picture is of a physically very frail elderly lady who was depressed, lacked appreciation of her own physical condition and weaknesses, exhibited confusion from time to time, had some paranoia, who recognised her relatives but did not recall important family information (viz that her niece had recently had twins), who could not conduct a conversation over the telephone, who lost the thread of a conversation in person, who did not recall for how long she had been in the nursing home, who said, quite unrealistically, that she would be going home soon, and who would ask the same questions over and over again having forgotten that she had already done so. It is also the picture of an elderly woman who, after Mr Mussett made his will, decided that she should make her will, and who, both Dr Rosenfeld and Professor Reid agreed, would understand the nature of a will. I accept that she also expressed the wish that she should leave her estate to her brothers and her sister. Although in opening submissions, counsel for the defendants submitted that there were suspicious circumstances attaching to the giving of instructions for the preparation of the will, I do not find that either of the Mr Mannings put it in Mrs Ludewig's mind as to how she should leave her estate. I do not think that there is anything suspicious about the fact that Robert Manning conveyed instructions to Mr Palmer on behalf of his sister, although I am not satisfied that the instructions she gave him extended to instructions for a substituted gift if one of the beneficiaries died before her.
62 In this case the onus of proof is relevant. Where a doubt arises as to a testator's testamentary capacity, the onus of proving capacity lies on the person propounding the will. The proof is to be made on the balance of probabilities. Proof on the balance of probabilities requires the tribunal of fact to "feel an actual persuasion of its occurrence or existence before it can be found. ... No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal." (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362).
63 In Worth v Clasohm (1952) 86 CLR 439, in a joint judgment the High Court said (at 453):
" A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. "
64 In Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Gleeson CJ said (at 289-290):
" Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439.
This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. "
65 It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question.
66 In the present case, I accept Dr Rosenfeld's evidence of the conclusions to be drawn from the observations made in the nursing notes and the observations made by the defendants as to the progress of Mrs Ludwig's dementia. As indicated earlier in these reasons, I do not accept all of his observations. But I do accept the main thrust of his opinion that the evidence of Mrs Ludewig's forgetfulness, lack of insight, inability to hold a complex conversation, and a certain degree of paranoia, indicate that she suffered both from a loss of memory and frontal lobe disease that impaired her cognitive functions such that I could not be satisfied that she had testamentary capacity. Dr Rosenfeld said that the frontal lobe is a critical aspect of being able to think and understand the recollection of things. He said that it was the seat of executive function and to be able to do the job it is meant to do, it has to be able to take in information, interpret it and hold that information in the brain whilst taking in other bits of information and comparing them. He said that one of the earliest features in frontal lobe dysfunction is the inability to hold different disparate bits of information and hold them there in a useful manner to be able to compare them. At a later point he compared the function of the frontal lobe with the function of RAM in a computer. If there is insufficient RAM, the computer will be unable to process the information which is otherwise stored on it.
67 Professor Reid's view was that the nursing notes did not provide adequate evidence of frontal executive dysfunction of which there had been no assessment. Of course neither doctor had examined Mrs Ludewig. There they were at a disadvantage, but there is no other person with medical expertise who gave evidence who made an assessment of Mrs Ludewig's cognitive functions after August 2005. Moreover, as Dr Rosenfeld said, a substantial part of any diagnosis is the obtaining of a history of the patient and in the present case there is a more detailed history available of Mrs Ludewig than a treating doctor would have available on consultation with a patient. I accept Dr Rosenfeld's opinion as to the conclusions to be drawn from the nursing notes, when taken with the defendants' evidence which was not challenged in cross-examination.
68 For these reasons I am not satisfied that Mrs Ludewig had testamentary capacity when she signed her will dated 12 July 2006. I order that the plaintiff's summons be dismissed.
69 I order that probate of the will dated 3 September 1992 of Gwendoline Mary Ludewig late of Thornleigh, New South Wales, retired, be granted to the cross-claimant in solemn form.
70 I refer the proceedings to the Registrar to complete the grant.
71 This was clearly a case in which testamentary capacity had to be investigated and was fairly arguable on both sides. Prima facie I am of the view that I should order that the defendants be paid their costs on the indemnity basis out of the estate and that there be no order in respect of the plaintiff's costs. If any party seeks a different costs order I will hear submissions on that.