Norris v Tuppen [1999] VSC 228

A chronology

8 The firm of Cornwall Stodart, it appears, for many years acted for Mrs Tuppen and her husband; but not exclusively so - for Hedderwicks Fookes & Alston prepared wills for them in the 1970s, and Robert Tuppen (then of Ford & Co) did so in 1982. In any event, in late 1988 Cornwall Stodart prepared enduring powers of attorney appointing Richard Norris the attorney of each of them. Those instruments were apparently executed.

9 On 13 July 1990 the solicitors prepared powers of attorney appointing Richard Norris and Robert Tuppen as joint attorneys. These instruments were not executed. Instead, enduring powers which appointed Robert Tuppen as attorney were prepared by him (he had been a solicitor, and was by then a magistrate) and were executed by each of the deceased and her husband on 4 August 1990. It is clear that at that time, and for a period prior thereto, Robert Tuppen had been doing a good deal of work to put the late Charles Tuppen's financial affairs back into order. Mr Tuppen was, in old age, "failing".

10 There was some debate how the powers in favour of Robert Tuppen came to be executed. I am satisfied that Charles Tuppen said that he was prepared to sign a power in favour of Robert Tuppen alone; and that Mrs Tuppen communicated that information to Robert Tuppen. She told him also that Richard Norris had refused appointment. Robert Tuppen promptly prepared documents referable to both his uncle and aunt, and they were executed. In Charles Tuppen's state of failing health there was need for urgent action.

11 Charles Tuppen died, as I have said, in December 1990. He left surviving him his elderly wife, a lady afflicted by osteoporosis, labyrinthitis, and poor hearing; a lady who had not in her husband's lifetime played any significant role in managing the couple's financial affairs; a lady who, despite her disabilities, was concerned to live out her years at her East Kew home - where she had resided for some 40 years.

12 Mrs Tuppen's 1991 will was executed some three months after the death of her husband. It was prepared by Cornwall Stodart. Nothing indicates that Robert Tuppen played any part in its provisions. Save for bequest to him of an Arthur Boyd painting and the bequest of a tea set to his sister (each of which bequests were confirmed by the codicil to that will) the benefits prospectively accruing to he, his father and his sister were no different to those flowing from the 1982 will.

13 According to the plaintiff's case the deceased became concerned that Robert Tuppen was or might be making free with her money. The only circumstances suggesting such a thing were that on one occasion in 1991 he used her funds to pay for tickets to a musical which he, his wife and a carer attended with her (he and his wife having previously attended the musical at their own expense, and being at least unwilling, and perhaps unable, to do so on a second occasion). In that incident there was nothing, when the matter is considered sensibly, to found the concern which Mrs Tuppen later conveyed to others. There is doubt, on the evidence, whether Mrs Tuppen agreed in terms to fund the outing that took place; or whether it was rather a matter of implication from what was said between she and Robert Tuppen. He did not pretend a precise recollection. But there is no doubt that, after the performance, he thanked his aunt for paying for the outing when she thanked them (Mr Tuppen, his wife and the carer) for taking her. Had the subject not already been discussed, I think it unlikely that Robert Tuppen would have responded in the way that I am satisfied he did.

14 It is unusual and unnecessary to speculate how Mrs Tuppen came to form the adverse view that she did about Robert Tuppen in respect of this incident. I do note, however, that Mrs Carrig (the carer who attended the musical) appeared to identify very closely with Mrs Tuppen; and had her own perception of matters bearing on her patient's welfare.

15 The incident concerning the musical (it was the Phantom of the Opera) occurred in August 1991. It seems to have marked the time when the deceased began to make much complaint about Robert Tuppen. Complain she did - to Digby Norris, Richard Norris and Mrs Carrig amongst others.

16 A little earlier, in about mid 1991, the raw material of another source of later complaint by Mrs Tuppen arose. At that time, and for some years prior thereto, Camberlea had provided Mrs Tuppen (and in his lifetime, her late husband) with home care. Mr Tuppen became concerned that Camberlea's statements of account contained a number of arithmetical errors running in its favour. He noted also that, according to the accounts, there had been various changes in the number of hours worked by carers, of which changes he was only belatedly advised. Again, he observed that the accounts rendered for hours worked (which were less than 24 hours each day) exceeded the charge for 24 hour in-patient care. These sources of concern arose in the context that the cost of care was very large and there was need to provide for the possibility that at some time Mrs Tuppen might need to be admitted to Camberlea rather than continue to reside at her home.

17 Mr Tuppen took up his concerns with Camberlea. He required to be informed if there was any change in hours worked (at the behest of his aunt) so as to be able to check the statements of account.

18 Mr Tuppen recalled discussing the Camberlea matter with his aunt on one occasion, in mid 1991. He told her about the problem of learning of changes in hours worked by the carers only after the event. He may have pointed out that there were different hourly rates at different times. He quite possibly pointed out the anomaly that home care costs exceeded the charge for 24 hours in-patient care. He thought that his aunt comprehended what he said; for after the conversation she changed her hours.

19 Out of these events, in respect of which I am quite sure that Robert Tuppen acted with his aunt's best interests in mind, grew a series of complaints and accusations by Mrs Tuppen. She complained of unhappiness that the number of hours of the carers had been reduced. She expressed concern that there might not be enough money and other assets to enable her to continue living at home. In the latter context Robert Tuppen was said to be at fault for not fully informing her of her financial position. Again, Robert Tuppen wanted her money. That was why he wanted to put her in a nursing home. These various complaints and accusations were made to persons other than Robert Tuppen. They were a recurring theme.

20 Robert Tuppen did not reduce the carers' hours in mid 1991. That was, I conclude, Mrs Tuppen's work. Such conduct was consistent with her attempt, in late 1992, again to reduce the carers' hours. The accusation she levelled against Mr Tuppen was, I am satisfied, misconceived, a result of confusion engendered by forgetfulness.

21 Robert Tuppen did not provide his aunt with full information concerning her financial position. He did not pretend to the contrary. But never in her long married life had Mrs Tuppen's husband provided her with such information. When she asked Robert Tuppen for particular information on one occasion he gave it to her - informing her what amount she had in a bank account.

22 Mr Tuppen's concern was, I am sure, that he not bother his aunt with figures, but rather run her affairs quietly. He had no reason to believe, until early October 1991, that this approach upset her. It was consistent with the approach taken by her late husband. She never herself told Mr Tuppen that she wanted more information. That was his evidence; and I accept it. Nonetheless, it is clear that she complained to others. The matter was brought to his attention by Richard Norris in early October 1991. Within a fortnight, without having any real chance to do what Richard Norris suggested, his power of attorney had been revoked.

23 It cannot be said that Mrs Tuppen was deluded in saying to others that Robert Tuppen had not provided her with full financial information. But insofar as she suggested to Mrs Carrig that she had sought information and Mr Tuppen had declined to provide it, I accept Mr Tuppen's evidence to the contrary. Any such suggestion evidences a set which Mrs Tuppen took against him.

24 Robert Tuppen's evidence was opposed to the accusation, often made by Mrs Tuppen, that he wanted to see her out of her home and into a nursing home. I accept his evidence upon that matter. It accords with his solicitor's letter dated 21 November 1991. The most that could possibly be said is that in mid 1991 he told her about the dispute with Camberlea. It was a far-fetched extrapolation of that conversation for his aunt to have imagined that Mr Tuppen wanted to get her out of her home; let alone that his purpose in doing so was because he wanted her money.

25 There is no doubt that on 21 October 1991 Mrs Tuppen executed a revocation of Robert Tuppen's power of attorney; and executed a power of attorney in favour of Robert Redfern, tax accountant of Digby Norris and trust account auditor of the then firm of Joseph Lukaitis & Associates (now Lukaitis Partners). The documents were drawn by Mr Lukaitis on the instructions of Mr Redfern. Mr Lukaitis had never met Mrs Tuppen before calling to her home with the documents prepared for execution. At the time of execution there were present at the home Mr Lukaitis, Mr Redfern, and Messrs Richard, Digby and Stanley Norris.

26 The precise sequence of events leading up to preparation and execution of the documents was the subject of partly inconsistent evidence given by Digby and Richard Norris, and by Mr Lukaitis. That said, it is clear that, at least from the time of what I shall call the Phantom incident, Mrs Tuppen made complaint about Robert Tuppen to Digby Norris, and on two occasions to Richard Norris. The complaints, mainly, related to Robert Tuppen's failure to provide full financial information to her. Mrs Tuppen asked each of Digby and Richard Norris what could be done. Digby Norris conceded, I thought with marked reluctance, that he "may have" told his aunt that one way out of her problems was to change the person invested with power of attorney. I have no doubt that he did so. There is no doubt that it was he who in fact introduced her to Mr Redfern.

27 Digby Norris said that he made that introduction weeks or months before 21 October 1991. But I am sure that was not so. By letter dated 8 October 1991 Richard Norris wrote a letter to Robert Tuppen as follows:

"Just a brief note to you concerning Auntie Dot whom I visited a couple of weeks ago.

Auntie Dot has asked me to contact you and ask you to provide her with a regular statement of her financial position in regard to her Bank Account, Term Deposits etc.

Essentially, I think she is having difficulty in understanding the state of her finances and the amount of money she has in her bank accounts, and no doubt some sort of statement provided to her each month would simply reassure her.

I don't think the statement needs to be particularly detailed, simply a one page summary showing her drawings and charges, interest and income together with the account balance and amounts on Fixed Deposit should be sufficient.

I hope this note finds you all well ... "

28 There was no hint in that letter of any proposal to revoke Mr Tuppen's power of attorney and appoint another in his stead. I do not take Richard Norris to be a deceptive man. Moreover, Richard Norris told me of a meeting at his aunt's home attended by Digby Norris, Stanley Norris, himself, Mr Redfern and perhaps Mr Lukaitis (I am sure that Mr Lukaitis was not in fact present). At that meeting the consensus was that there was "a need that we should appoint an independent power of attorney". His aunt "would have been spoken to about it". If she chose not to want to continue the power of attorney of Robert Tuppen, then they were suggesting Mr Redfern was the appropriate appointment for her to make.

29 I accept that the meeting described by Richard Norris took place. It evidently occurred after 8 October 1991, and shortly before Mr Redfern instructed Mr Lukaitis to draw the documents. Everything suggests that the meeting occurred very shortly before 21 October 1991, and that it was then that Mr Redfern was introduced to Mrs Tuppen.

30 Robert Tuppen was not invited to the meeting at which consensus was reached. Nor was he invited to the meeting at which the documents were executed. Cornwall Stodart, solicitors who were known to have acted for Mrs Tuppen and her late husband - though not exclusively - were not consulted. There was, in the convening of those meetings, and in the preparation of the documents, a certain under-handedness.

31 On about 23 October 1991, the locks to Mrs Tuppen's home were changed. It was not suggested that this was or could have been organised by her. Digby Norris conceded that his aunt would not have been competent to do so. The carer, Mrs Carrig, said she had nothing to do with it. I believe her. I am satisfied that it was not arranged by Richard Norris. That leaves, really, Mr Redfern and Digby Norris.

32 Digby Norris advanced a reason why the locks were changed. There had been discussion between he and his aunt about the matter. On one occasion Robert Tuppen had (according to Mrs Tuppen) entered the house when she was not there. The incident "upset her greatly". "She didn't know his reasons for being there". She had asked Digby Norris what could be done. It was in this setting that he gave evidence that, whilst he did not recall who had arranged for the locks to be changed, it was not him.

33 I accept the evidence of Digby Norris that his aunt told him that Robert Tuppen had entered her home when she was not there.

34 It is possible but improbable that Mrs Tuppen instructed Mr Redfern, on the occasion of his appointment, to have the locks to her home changed. It is entirely improbable that Mr Redfern decided to make such a change unprompted. I do not doubt that Digby Norris instigated the change. Whether he or Mr Redfern gave the necessary instructions to the workman who did the job need not be decided. I consider that Digby Norris was very ready to accept without question his aunt's expressions of concern about Robert Tuppen, and to take action which could only reinforce in her mind a belief that her concern was justified.

35 There is a question whether what Mrs Tuppen told Digby Norris was the fact. Robert Tuppen said that he could not recall whether there was an occasion when he entered his aunt's house when she was not there. Certainly he had keys. Generally he called by arrangement. Occasionally that would not be so.

36 Counsel for the plaintiffs submitted that Mr Tuppen had given unsatisfactory and uncertain evidence about the issue. I consider that the evidence was uncertain because Mr Tuppen rightly did not essay a recollection when he had none.

37 There being no direct evidence that the reported incident occurred, or that it did not, where does my conclusion that the complaint was made lead?

38 It seems highly improbable to me, if the incident occurred, that Robert Tuppen would have left without his aunt knowing his reason for being at her home. His evidence suggests that when he called on her it was for a particular reason. I consider it very likely, in the postulated circumstances, that Mrs Tuppen simply forgot the reason why Robert Tuppen had come to her home. That would be consistent with the presence of dementia - as to which, see later in these Reasons. Forgetfulness would have facilitated the feeling of upset of which she complained, and the unreasoning fear which apparently sparked the changing of the locks.

39 I return to the chronology. The ways in which and times at which Robert Tuppen was advised of the revocation of the power of attorney in his favour, of the appointment of Mr Redfern, and his response to those events were the subject of much evidence. Mr Tuppen was extensively cross-examined about them. The object of the cross-examination was, as I understand it, to show that Mr Tuppen had refused to accept the situation, and had without warrant brought a proceeding at the Guardianship and Administration Board (it was commenced on 13 November 1991) - this leading to his aunt becoming understandably angry thereafter towards him; and altering her testamentary dispositions in an understandable way.

40 In his final submission, however, senior counsel for the plaintiffs said that he did not want to put it in any way other than that Robert Tuppen had acted bona fide in commencing the Board proceeding. Nonetheless, his doing so provided justification in Mrs Tuppen's mind for a loss of interest in Mr Tuppen for, as it were, putting her through the Board hearing.

41 Having regard to the way in which the plaintiffs finally put their argument upon this matter it is not necessary to explore in depth the sequence of events culminating in the commencement of the Board proceeding. I should say, however, that I am quite satisfied that the concession for the plaintiffs that Mr Tuppen had acted bona fide was a concession properly made. It is the conclusion I would have reached had the matter remained in dispute.

42 I next observe that it was certainly the case that Mrs Tuppen expressed herself embarrassed by the Board proceeding; and that she expressed anger towards Robert Tuppen for bringing it. It is also the case that she accused him of taking her back to the "court" on the occasions that the Board conducted reviews of its previous orders. It is further the case that, throughout her life, she continued to say that she wanted Mr Tuppen to have nothing to do with her again. There is no doubt, again, that she expressed antipathy for Mr Tuppen as the explanation (at least for the most part) for changes which she made to her 1991 will by a codicil of April 1992; and as the explanation for the will which she executed in September 1992.

43 Robert Tuppen's communication with his aunt orally and by letter on 1 November 1991, his telephone conversations with her on 2 and 4 November, his letter to her of 13 November 1991, his letter to Mr Lukaitis of 11 November 1991 and his solicitor's letter of 21 November 1991 show, I think, his concern for his aunt's welfare and the reason why, as he perceived it, the Board proceeding needed to be brought. But it seems to me to have been open to Mrs Tuppen to have taken a different view - that is, that Mr Tuppen was putting her affairs before the Board in an unwarranted way. The fact that she facilitated uncertainty by saying different things to different people (I am certain this was the case) does not inevitably stand in the way of that conclusion. Once assume that Mrs Tuppen could have taken an adverse view about Mr Tuppen because he commenced the Board proceeding, anger and embarrassment were not unreasonable emotional responses to its prosecution.

44 On 3 November 1991 Mrs Tuppen had a fall and sustained injuries including fractures of two ribs, a broken finger and facial lacerations. Possibly, although there was no such diagnosis at the time, she refractured her right humerus (which she had fractured in a fall in March or April of that year). In any event, she was admitted to Box Hill Hospital. She was transferred to Wellington Hospital (sometimes called Cotham Clinic in the evidence) shortly thereafter. She was under the care of Dr Pick, her general practitioner for more than 30 years. Her condition improved. The doctor considered that she could go home on 11 November 1991.

45 According to the doctor's evidence, at the last minute there was a change of plan. Mrs Carrig telephoned to say that she did not consider it wise for Mrs Tuppen to be at home alone after 5.00 p.m. So on 11 November 1991 Mrs Tuppen was taken to Camberlea by Sister Fanning (the person in charge of that home) and Mrs Carrig. There she remained until 13 November 1991, when Mrs Carrig removed her from Camberlea, and took her home. Mrs Carrig did this on the instructions of Mr Lukaitis. She did so without consulting Dr Pick. Present at the time of the removal were Mr Lukaitis, Mr Redfern, Richard and Digby Norris. Robert Tuppen first learnt of the "discharge" when Sister Fanning rang to say that Mrs Tuppen had been kidnapped by four men.

46 By paragraph 7 of her affidavit sworn on 7 August 1997 Mrs Carrig deposed that Robert Tuppen and Sister Fanning arranged for the transfer to Camberlea. She made no mention of her own role as described by Dr Pick. The latter's evidence upon the matter only late emerged. Mrs Carrig was not cross-examined upon it. Mr Tuppen, for his part, denied any role in his aunt's transfer to Camberlea. That denial is consistent with Dr Pick's evidence. I do not decide that Mrs Carrig provided the impetus for Mrs Tuppen's move to Camberlea. I am sure that Robert Tuppen had nothing to do with it.

47 There was evidence that Mrs Tuppen dreaded the prospect of being forced out of her home into a nursing home. The circumstances of her treatment at Camberlea, as described by several witnesses, could well have reinforced that dread. Be that as it may, Mr Ritter, senior counsel for the plaintiffs, submitted in his closing address that it was open to Mrs Tuppen to have formed the view that Robert Tuppen "failed to support her wish to leave Camberlea", and that he had put her there. Counsel went further and submitted - there being some evidence that Robert Tuppen had agreed with Sister Fanning that the cost would be met if his aunt was admitted to Camberlea, and he having commenced the Board proceeding after her removal from that place - that it was open to Mrs Tuppen to have rationally concluded that he wished to keep her there.

48 Mr Ritter's submission was based in part upon factual circumstances that were not made out, in part upon circumstances of which there was no evidence that Mrs Tuppen had knowledge, and in part upon assumed inferential reasoning which would have been remarkable had it been made. There is no doubt, as I said earlier, that Mrs Tuppen often accused her nephew of wanting to see her out of her home and into a nursing home. If that state of mind was wholly or partly induced by the reasoning proposed by Mr Ritter, it says nothing for her ability to consider matters rationally.

49 I should interrupt the chronology by referring to two other aspects of Mrs Carrig's evidence. First, in viva voce evidence (having sworn two affidavits) she mentioned for the first time a letter allegedly sent to Mrs Tuppen by Robert Tuppen some time after August 1991 and before the Board hearing. Its substance was said to be that Mrs Tuppen had to reduce her expenditure, her money was running out, she may have to look for alternative accommodation. The letter was said by Mrs Carrig to have upset Mrs Tuppen.

50 The plaintiffs relied upon that evidence to explain, in part, the belief expressed by Mrs Tuppen that her nephew Robert wanted to see her out of her home.

51 The letter was not produced. Mr Tuppen, who apparently kept copies of at least some letters he sent to his aunt, was not asked to produce a copy. He said that he did not recall sending such a letter. He believed it did not occur. But he could not say with 100% certainty.

52 It is just possible, when Mr Tuppen had the conversation with his aunt about his dispute with Camberlea about charges, that he took with him a letter (as he did on 1 November 1991) setting out the matters to which he referred in viva voce evidence. If he did, I am satisfied that its content was not identical with that about which Mrs Carrig gave evidence. A letter such as she described would have been inconsistent with other communications he made to his aunt. I do not accept that the letter which I have conjectured may have been taken by Robert Tuppen to his aunt could have engendered a belief that he wanted to see her in a nursing home.

53 Second, according to Mrs Carrig Mrs Tuppen was angered when she visited Kew Cemetery and found that Robert Tuppen had not arranged for a suitable plaque to be erected where her husband's ashes were interred. Mr Tuppen gave evidence, however, that he had consulted with his aunt about the matter. She provided him with the desired wording. He had a sketch prepared and showed it to his aunt. Only after she had approved did he have the plaque prepared and erected.

54 I see no reason not to accept Mr Tuppen's evidence upon the matter. It is entirely possible that his aunt forgot that they had consulted. On the other hand, given such forgetfulness it may well be that Mrs Tuppen said what Mrs Carrig attributed to her. That is, the forgetfulness facilitated the development and expression of a set against Robert Tuppen concerning the matter.

55 Returning to the chronology, I have already mentioned that on 13 November 1991 Robert Tuppen commenced a proceeding before the Board. A number of events had occurred between 21 October and 13 November 1991 which, in my opinion understandably, caused Mr Tuppen considerable concern about his aunt's situation. By the Board proceeding he sought the appointment of a guardian and an administrator; and revocation of the power of attorney which he had reason to believe had been granted to Mr Redfern.

56 The Board was set up by the Guardianship and Administration Act 1986 (the Act). Under the Act, a person might apply for an order appointing a plenary or limited guardian in respect of a person with a disability (s.19); and for an order appointing an administrator in respect of the estate of such a person (s.43). The Board was empowered to order the appointment of a guardian if satisfied that the person affected by the order was unable, by reason of disability, to make reasonable judgments in respect of all or any of the matters relating to his or her person and circumstances, and was in need of a guardian (s.22(1)). There was a similar provision which empowered the Board to appoint an administrator (s.46(1)).

57 Then (and now) "disability" was defined by s.3(1) to mean, in relation to a person "intellectual impairment, mental illness, brain damage, physical disability or senility". According to the application filed by Mr Tuppen his aunt suffered from physical disability and senility. Those assertions were expanded as follows:

"My aunt has not been able to manage her affairs since my uncle died 12/12/90. Last couple of months appears to have become very confused."

58 In response to the question why he thought the deceased needed a guardian/administrator Robert Tuppen wrote this:

"Have been informed that aunt is being overborne and needs protection from exploitation."

59 Mr Tuppen fairly identified, as other interested persons, Digby, Richard and Stanley Norris, and Mr Redfern; and, as his client's nearest relative, James Allan, her sister's son. Mr Tuppen did not himself seek guardianship; but he did seek to be appointed administrator of his aunt's estate.

60 The matter came on before the Board on 18 November 1991, but was adjourned until 2 December 1991. The hearing took place on 2, 3, 9 and 10 December 1991.

61 Mrs Tuppen was represented at the hearing by counsel instructed by Lukaitis Partners. Counsel opposed the making of the orders which were sought. Medical reports were tendered in support of the proposition that the circumstances did not call for the appointment of a guardian or an administrator. I am satisfied that the reports of Dr I.F. Robertson an ophthalmic surgeon (he had treated Mrs Tuppen in 1990 and 1991), of Dr S. Honigman a geriatrician and Mr P. Keil, a social worker, (they assessed Mrs Tuppen at her home on 18 November 1991), and of Dr D. Tofler, a psychiatrist, (he interviewed Mrs Tuppen at her home on 26 November 1991) were placed before the Board. It is not clear that this occurred with the report of Dr G.C. Wood, a psychiatrist who was engaged by Mr Lukaitis on the advice of his brother-in-law, Dr Rowan McIntosh.

62 Apart from the medical reports, a report prepared by Ms Katrina Gunn was submitted for consideration; as well as excerpts (whose accuracy was disputed) from a day book maintained by the carers between 1988 and 1991. Viva voce material was presented to the Board by Mrs Tuppen, a number of family members, and others including her general practitioner Dr Pick. It was not in dispute that Mrs Tuppen told the Board, apparently in private discussion, that she wished to live at home and have the same carers; and that she did not wish Robert Tuppen to be involved in her affairs.

63 According to paragraph 7(c) of the affidavit of Digby Norris sworn 25 June 1998 his aunt divided up her relatives, after the hearing, into two groups, based upon her perception of the person's support or opposition to the application. She placed James and Kenneth Allan, Alison Inchley and Harold Tuppen into the Robert Tuppen faction. He could identify nothing that justified the Allans being put in the particular group. For his part, he had told the Board that he felt his aunt needed the support of somebody perhaps to handle her affairs; and he supported the appointment of a guardian. How this presentation to the Board could have caused his aunt to place him in the camp of those who opposed the application is not clear to me.

64 Medical opinion placed before the Board (Dr Robertson's opinion apart) was to the effect that Mrs Tuppen was affected by dementia. The debate as to the extent of the impairment.

65 The Board made orders on 6 February 1992. It expressed itself satisfied that Mrs Tuppen was disabled and was unable by reason of disability to make reasonable judgments in respect of her person, circumstances and estate. It ordered the appointment of the Public Advocate as guardian limited to decisions concerning health care and accommodation. It appointed Mr Redfern as administrator of the deceased's estate, whilst revoking the enduring power of attorney dated 21 October 1991. It ordered that a review be conducted by 6 February 1993.

66 It was common ground that the Board's decision was some evidence of Mrs Tuppen's mental state at the time of the initial hearing; and at the time of reviews in 1993 and 1994. It was also common ground, and it is the law, that an administration order does not itself prevent a represented person from making a will; and that it does not conclude the question whether such a person has testamentary capacity at a particular time.

67 The plaintiffs sought to show that Mrs Tuppen's behaviour in the period leading up to and at the Board hearing was uncharacteristic; and that this was because she was then suffering from an undiagnosed and painful re-fracture of the right humerus. Thus was to be explained her presentation to the various doctors in November 1991. Her performance on interview was said to be affected by pain, or drug ingestion, or both. So also there was to be explained her "withdrawn, less interactive and very passive" appearance at the Board.

68 Pertinent evidence was given by Mr Lukaitis (paragraph 11 of his affidavit sworn 27 May 1997), Mrs Carrig (paragraph 1(g) of her second affidavit sworn 6 May 1998 and Mr Byrne (the orthopaedic surgeon, who discovered the re-fracture on 11 December 1991, and who operated upon it on 13 January 1992).

69 Evidence suggesting it was improbable that in the relevant period Mrs Tuppen was affected by much pain - even if she was suffering from a recent re-fracture of the humerus - was given by Dr Wood, Dr Tofler and Ms Gunn. Dr Pick gave no support to the proposition that Mrs Tuppen re-fractured her arm in the fall of 3 November 1991. The consistency of test results performed by Dr Wood in late 1991 and in early 1993 tells against any distortion of performance by either pain or drug use in late 1991. Mr Byrne did not operate for a month after discovering the fracture. That delay tells against Mrs Tuppen then being in severe pain.

70 I note from Mr Byrne's affidavit that Mrs Tuppen fractured her humerus in a fall in March 1991. As late as 11 October 1991 she was, according to Mr Byrne, still in pain; and had limited arm movement. The situation was much the same as on 7 July 1991, when the fracture had not united properly.

71 Mr Byrne attributed the fracture seen on x-ray after 11 December 1991 with the fall which had occurred on 3 November 1991. He believed, it seems, that Mrs Tuppen had not been seen by a doctor between that fall and his examination. In that belief he was wrong. It is, I think, doubtful whether there was a re-fracture on 3 November 1991. The original fracture may never have healed. Be that as it may, it seems likely that some injury was done to the arm on 3 November 1991; and that the injury produced some pain. But, as I have said, the evidence tells against the injury distorting Mrs Tuppen's presentation to the doctors or Ms Gunn; or being a cause of uncharacteristic behaviour during the first Board hearing.

72 Within a short time of the Board making its initial orders Mr Lukaitis wrote to Cornwall Stodart seeking a copy of Mrs Tuppen's will. He enclosed an authority. A copy was provided by 17 February 1992.

73 On 24 February 1992, at the request of Mr Redfern, Mr Lukaitis attended Mrs Tuppen at her home. He gave evidence that he read the 1991 will to her, and that Mrs Tuppen then said that she wished to make a number of changes. She gave detailed instructions about additional gifts of chattels. She gave instructions that there be a change in executors in view of "what had happened". She explained retention of the gift of an Arthur Boyd painting to Robert Tuppen as being her husband's wish. She proposed a substantial reduction, but not elimination, of Robert Tuppen's share of residue.

74 She proposed other changes to residue. They included an increase in the share of David and Stanley Norris, who on the evidence had little contact with her; an increase in the share of James Allan, who was "not family", and who (according to Digby Norris) she treated as being in the Robert Tuppen camp, beyond the share of Kenneth Allan, and to the same level as Richard Norris; a decrease in the share of Alison Inchley; a decrease in the share of Joyce Webster; and the inclusion of Mrs Carrig.

75 Mr Lukaitis prepared a draft codicil. He told me that Mrs Tuppen attended his office on 8 April 1992. He read the codicil to her. She confirmed various alterations. She now wanted Digby Norris added as an executor. She instructed him to make some changes to the list of parts and proportions. In particular, she gave him instructions that Robert Tuppen was to have no share of residue.

76 Further than that she proposed a decrease in the share of Digby Norris, an increase in the share of Kenneth Allan, and an increase in Mrs Carrig's share.

77 On that occasion Mr Lukaitis warned her that there might be allegations that she did not have testamentary capacity and that he was arranging for a doctor to be present when she signed the codicil. He noted that "she thought this a bit of a joke", but did not mind.

78 The doctor selected by Mr Lukaitis to be present was Dr J.F.X. Murphy, his own general practitioner for many years. It was not, then, Dr Pick, who had been Mrs Tuppen's general practitioner for more than 30 years until late 1991; nor Dr Wood, the specialist psychiatrist who had examined Mrs Tuppen in late 1991. She did not like either of these doctors, Mr Lukaitis told me. She later consulted Dr Wood on many occasions. Mr Lukaitis said also that there had been conflict at the Board hearing about the degree of his client's dementia. He was looking for a "fresh independent opinion". He explained his task, as he perceived it, this way:

"I saw my task to satisfy myself that I was able to take instructions from her for a testamentary document and, having done that, I saw that in view of the findings of the Guardianship Board and the obvious findings in terms of making a will, that I then had an obligation to protect her wishes by having medical opinion."

79 On 9 April 1992 Mr Lukaitis wrote to Dr Murphy confirming an appointment. There were in my opinion two unusual features about the letter. First, Mr Lukaitis noted that his client had suffered an undiagnosed broken shoulder at the time the Board had made orders. Although he referred to allegations of senile dementia, the impression left by the letter was that the Board's orders had something to do with the undiagnosed injury - from which she had now made good recovery. Second, he told Dr Murphy that he had never had any trouble taking clear instructions from the testatrix, that she was a straightforward lady with clear views on matters that were important to her.

80 There is another aspect of Mr Lukaitis' briefing of Dr Murphy to which I should refer. He did not provide the doctor, who had never seen Mrs Tuppen before, with any of the medical reports which had been placed before the Board.

81 The codicil was executed on 10 April 1992. Present were Mrs Tuppen, Mr Lukaitis, his partner Mr Zilinskas, his employee Ms Gardiner, and Dr Murphy.

82 The codicil was not executed as it had been settled on 8 April 1992. Digby Norris was not appointed an executor. Mr Lukaitis read the codicil through. Mrs Tuppen queried whether Harold Tuppen should receive a life interest. She is variously reported as saying that he had been arguing in (or with) the family, that he had caused trouble and had not been supportive of her, and that he and his wife had not tried to stop Robert Tuppen acting in the manner that he did. In the event, contrary to her specific instructions on 24 February 1992, and the codicil as approved on 8 April 1992, Harold Tuppen was then deleted as beneficiary of a life interest.

83 Before the codicil was executed Mrs Tuppen was interviewed by Dr Murphy. Mr Zilinskas, but not Mr Lukaitis, was then present. Mrs Tuppen was able to give her name and address. She was not sure of her age. She gave her birth date incorrectly. She nominated the year, wrongly, as being 1991. She could not recall what month it was. She nominated the day of the week as being Tuesday. It was Friday. She explained in detail the reasons for her desire to exclude Robert Tuppen from the will.

84 Dr Murphy provided a report of his interview. Dated 13 May 1992, it noted that the deceased had, as might be expected, a short term memory deficit; some long term memory deficit as well, and disorientation in time. But she had offered a reasonable and coherent account of her intentions in changing her will. The doctor opined that her disabilities were consistent with a normal ageing process "and not ... signs of such dementia as to make her unfit to act legally on her own behalf".

85 The plaintiffs relied upon Dr Murphy's opinion. But, through no fault of his, the opinion was of very limited value. The doctor was not provided with any medical reports pertaining to Mrs Tuppen's mental condition. He was not provided with any sketch of the criteria by which testamentary capacity is determined. He was told by Mr Lukaitis that the latter had not experienced any difficulty in taking instructions. He accepted the truthfulness of that information. He was asked simply to assess the deceased's mental state. He was not asked to assess her ability to make fine judgments and value judgments. He accepted, without question, her explanation why she was changing her will as being accurate, and (in effect) as revealing intact powers of judgment. It was not difficult for him, in those circumstances, to describe it as a "coherent and reasonable account of her intentions". He either did not know or was not told that a raft of other changes - a number of which were monetarily quite significant - were being made, and in respect of which the explanation given by Mrs Tuppen for changing her will offered no explanation. Nor was he asked to consider the apparent incongruity of a number of the changes. The doctor did not, having regard to the task which he understood he was being asked to perform, administer a range of tests which are commonly administered when an issue as to the degree of a patient's dementia is in issue.

86 Mr Lukaitis also had in attendance when the codicil was executed, as I have already noted, his partner Mr Zilinskas and his employee solicitor Ms Gardiner. Neither was asked to make an assessment of Mrs Tuppen's testamentary capacity. Each did no more than observe events.

87 Ms Gardiner noted that Mrs Tuppen appeared to be alert and gave clear instructions in respect of the proposed codicil. In respect of her decision to exclude Robert Tuppen, Mrs Tuppen advanced these reasons:

•

That he had not taken care of her finances as she considered he should have done;

•

That he had tried to persuade her to move into a home for the elderly;

•

That he had told her there was not enough money for her to continue to have professional care in her own home.

88 Mr Zilinskas noted that when asked by Dr Murphy why she wanted to change her will Mrs Tuppen explained that she wanted to exclude Robert Tuppen. She reportedly said that he "had taken her for granted"; and that she was "fed up with (his) not looking after the books and with his behaviour during the previous year". She said she was aware that Robert Tuppen had been completely removed from the 1991 will, and this was her wish.

89 The evidence of Mr Zilinskas and Ms Gardiner gives detail of what Dr Murphy described as the coherent and reasonable account of Mrs Tuppen's intentions in changing her will The difficulty with the evidence of those witnesses, from the plaintiffs' standpoint, is that the account, though coherent, was very incomplete and hid incongruities. Moreover, certain of the matters raised against Robert Tuppen were, I am satisfied, undoubtedly wrong. He did not try to persuade her to leave her home. He did not tell her there was not enough money for her to continue living at home. He did not fail to look after the books. If by failing to take care of her finances as she considered he should have done was meant a failure to provide information when it was sought, he did not fail to provide such information.

90 I have paid attention to the events of April 1992 because, whilst I am concerned with later testamentary dispositions, it appears to me that things said and done by Mrs Tuppen at the time may well cast some light upon Mrs Tuppen's testamentary capacity at later times. If her behaviour and dispositions in April 1992 were indicative of dementia which was productive of want of necessary judgmental capacity, the pattern of dementia is such that she was unlikely to have a greater capacity in September 1992 and thereafter. Moreover, a comparison of intended bequests in April 1992 and September 1992 and the explanation (if any) for later changes may cast light upon the presence or absence of judgmental capacity. Again, Professor Chiu, upon whose opinion the plaintiffs relied, in part based his opinion upon Dr Murphy's reports. It is necessary to consider whether those reports were soundly based.

91 Mr Lukaitis attended Mrs Tuppen at her request on 8 September 1992. She told him that she wished to remove the entire Robert Tuppen family from her will. She wished the Boyd painting to go to Digby Norris.

92 On 14 September 1992 Mr Lukaitis again attended Mrs Tuppen. On that occasion Mr Redfern was also present. Mr Lukaitis took instructions by writing his client's wishes on a large piece of brown paper. His notes were made in abbreviated form. In evidence, he himself was doubtful at times what they meant. Clear it is that the instructions were not complete, that at some stage Mrs Tuppen at least tentatively identified her sister as having a daughter (that was not the case), and that at another stage she identified Robert Tuppen's son Nicholas as his brother rather than his son. Clear also it is that between 8 and 14 September Mrs Tuppen had modified her instruction that the entire Robert Tuppen family was to be removed. Indeed, by the later instructions members of that family were to be added. Again, Mrs Tuppen's instructions were that she wished, after her death, to have a small service at the Church of England. Apparently she could not then recall where her husband's ashes were interred. I note also that substantial changes were proposed to the disposition of the residuary estate; whilst some erstwhile residuary beneficiaries were to become legatees of relatively small monetary amounts. Finally I observe that Mrs Tuppen was provided at that time with a simplified statement of her asset position. By a simple arithmetical error it overstated her assets by about $200,000.

93 Mr Redfern consulted with Mrs Tuppen on 17 September 1992. He provided a memorandum to Mr Lukaitis. It transmitted certain instructions and raised a question whether two persons should receive "some money". It instructed the immediate gift of the Boyd painting to Digby Norris: " ... and take from house now".

94 Mr Lukaitis drew up a will. It was executed on 20 September 1992 at Mrs Tuppen's home. Present were Mr Lukaitis, Mr Redfern, Dr McIntosh and later Dr Murphy. Each of the doctors interviewed the testatrix alone.

95 Asked why Dr McIntosh had been brought into the matter, Mr Lukaitis said:

"Well, the codicil changed, and the list was quite, quite different, and I thought I wanted to make very, very sure about it, with two doctors, two medical people, being present."

96 Dr McIntosh is Mr Lukaitis' brother-in-law. It was he who had recommended the engagement of Dr Wood in November 1991. Dr Wood was, as at September 1992, Mrs Tuppen's treating psychiatrist.

97 On the day of execution the testatrix made one change to the will as drawn. It was to halve Alison Initially's already reduced share of residue.

98 The 1992 will effected major changes to the 1991 will as varied by the April 1992 codicil. The changes included: a dramatic increase in Digby Norris' share of the residue; a considerable reduction in Richard Norris' share of residue; a very substantial reduction in Alison Inchley's share; bequests of shares in residue to the persons previously granted life interests; a major reduction in the prospective entitlements of Kenneth and James Allan, David Norris, and Mrs Carrig (each of whom was to have a money sum in lieu of a share in residue); inclusion of Robert Tuppen's two children as residuary beneficiaries; and deletion of the bequest of the Boyd painting to Robert Tuppen.

99 Dr McIntosh is a consultant psychiatrist. He had been several years in specialist practice when he interviewed Mrs Tuppen in September 1992. He had some general experience with geriatric patients. He had not previously been asked to give a specific opinion as to testamentary capacity. He was not provided with any information about Mrs Tuppen's past history, personal history or treatment. His task, he said, was to decide whether on the particular day Mrs Tuppen had testamentary capacity. He was not there to assess the level of her dementia; but to look at her decisional capacity. He saw it as part of his task, but "to a degree" to make a diagnosis. His diagnosis was "essentially in the Alzheimer's dementia realm". The doctor agreed that people with that condition generally "present with issues pertaining to memory loss, and the loss of ... high cortical function". Loss of that function, he agreed, generally involves impairment of insight and judgment "to a degree".

100 The doctor sat in on an interview between Mrs Tuppen and her solicitors. Then he spent about 45 minutes with her alone. He found her chatty and affable. She gave fairly prompt, succinct and forthright answers to his questions. There was evidence of short term memory impairment; but Mrs Tuppen's attention, concentration and long term memory were "quite reasonable". Limited tests were done of parietal and frontal lobe function. The results were generally sound. The doctor noted that Mrs Tuppen was orientated in time, place and person, that she gave him a "comprehensive run down of her family tree", that she spoke of great fondness for Digby and that she specifically desired to exclude Robert Tuppen - but not his children.

101 The doctor did not know whether Mrs Tuppen's description of the family tree was in fact accurate.

102 It was the opinion of Dr McIntosh that Mrs Tuppen possessed testamentary capacity on that day. His opinion was founded, as I understand it, on four questions posed by Mr Lukaitis, to which the doctor provided answers. The doctor first opined that Mrs Tuppen understood that she was involved in making a will on the particular day. She had discussed matters in detail and demonstrated "a sophisticated rationale for certain decisions". He second opined that Mrs Tuppen had a reasonable knowledge of the extent of her property; although he did not submit her to an arithmetical test because from discussion with her he thought "she would have done very poorly".

103 Mr Lukaitis had evidently asked the doctor to comment whether Mrs Tuppen knew and appreciated the claims to which she ought to give effect. That was the third of the four questions. It is apparent that Dr McIntosh misunderstood that question. But in viva voce evidence he said he would have thought that she did have the requisite ability. He had seen her engage in relevant discussion with Messrs Lukaitis and Redfern. She was not readily suggestible. He had tested this out.

104 The fourth question was whether Mrs Tuppen was influenced in the making of dispositions by any abnormal emotional state or by any delusions. The doctor discounted the presence of any mental disorder other than probable mild dementia.

105 Dr McIntosh raised the possibility that Mrs Tuppen's mental state may have been compromised at the time of the Board hearing in December 1991 by pain and/or incorrect treatment associated with an undiagnosed fracture of the arm. That led on to Mr Lukaitis conveying certain information, and views, to Dr McIntosh. As to the possibility itself, I have already dealt with and dismissed it.

106 The doctor was asked whether it was part of his function to investigate whether what appeared to be realities to her were rational or irrational. His approach was that he "respected her ability ... to be as difficult or irrational about this" (in effect) as she decided. He thought she was a "slightly sort of contentious woman", determined to "get back" at Robert Tuppen, but apparently weighing up the other prospective beneficiaries in a very reasonable manner.

107 The observations and opinions of Dr McIntosh carry obvious weight. I consider, however, that the doctor's opinion was to an extent compromised by his having no information - personal or medical - available when he interviewed Mrs Tuppen on 20 September 1992. He was unaware that she had recently been observed by Dr Wood to have taken a paranoid set against one person, and that there had been a rather paranoid flavour to many of her conversation themes. He was unaware that in the period from late 1991 onwards Mrs Tuppen had made a series of accusations against Robert Tuppen - I have detailed them in the course of these reasons - which were evidently misconceived, and in some instances evidenced a set against him. He was unaware of the content and circumstances of execution of the April 1992 codicil.

108 Again, the doctor agreed that dementia, with loss of higher cortical function, generally involves impairment of insight and judgment "to a degree". But he accepted what he was told or heard about the claims of various potential beneficiaries at face value. He seems not to have considered whether, by taking the approach that the testatrix was entitled to be as irrational as she chose, he was effectively closing off a line of relevant enquiry.

109 Dr Murphy separately interviewed Mrs Tuppen on 20 September 1992. He asked her questions which revealed some short term memory loss. There had been no noticeable change since his interview on 10 April 1992.

110 Mrs Tuppen, the doctor said, provided the same reason in April and September 1992 why she wanted to change her will - that is, her unhappiness with Robert Tuppen. As was the case in April 1992 that explanation could by no means explain the multiple and significant changes that were being made in September 1992.

111 The doctor said that Mrs Tuppen's apparently satisfactory orientation in time and space - for a person of her age - and "what appeared to (him) to be a reasonable explanation for changing her will led (him) to conclude that she had the mental capacity to execute a will". That opinion is, I consider, subject to the same problems that attended his opinion formed in April 1992.

112 The next step in the chronology is that on 17 August 1993, at the request of Mr Redfern, Mr Zilinskas met with Mrs Tuppen. The purpose of the meeting was to refresh Mrs Tuppen's memory of its contents. Mr Zilinskas read the will to her. She made 13 particular comments. A number of them presaged changes to the will. Some of them showed a considerable degree of uncertainty whether existing prospective beneficiaries should so continue. In one instance she asked the solicitor whether the amount of a legacy was too much. She could not recall, or had trouble recalling, who three beneficiaries were. She made quite scathing comments about Mrs Carrig, and to a lesser extent James Allan. She said that she preferred her funeral to be held at the Church of England, where her husband's funeral had been conducted (that was not so).

113 On 20 September 1993 Mr Lukaitis met with Mrs Tuppen concerning her will. Mr Zilinskas was present. On that occasion Mrs Tuppen said that the carers, especially Mrs Carrig, had been very good to her. Her view of Mrs Carrig had, it seems, changed dramatically in the space of a month. Also at the meeting she said that it was appropriate to treat James and Ken Allan equally. That contrasted sharply with her expressed opinion a month earlier. She said that Robert Tuppen had rightly been removed from her will; she had not expected him to turn out the way he did. She was content that something had been left to his children. She could not recall one of her nephews at all.

114 Mr Lukaitis again conferred with his client on 27 October 1991. He took her through the will and she confirmed its contents, save that, her sister having died, she must be deleted from the will. She commented that Donald Fox was an invalid and needed money. His share of residue had been substantially decreased, I note, by the 1992 will.

115 A codicil was prepared. It was executed on 24 December 1993. Mr Lukaitis and Dr McIntosh were present. The only changes were the deletion of Mrs Tuppen's sister from the will, the disposition of her share amongst the existing residuary beneficiaries (they did not include her sons), and the expression of a wish by Mrs Tuppen that her funeral be at her home.

116 According to Mr Lukaitis' evidence, on that occasion his client appeared to be "bright, alert and freely volunteered information" consistent with instructions that she had previously provided.

117 Dr McIntosh told me that there was no extensive assessment that day. He may have been with Mrs Tuppen 20 minutes or so. He described her mental state as being essentially the same as when he had seen her in September 1992. She was alert, orientated in time, place and person, with her speech form clear and precise. Her comments were not prompted. She gave reasons explaining the changes she was making. The doctor had little doubt that Mrs Tuppen had adequate testamentary capacity to validate the particular changes.

118 The doctor noted that one of the changes being made was explained by Mrs Tuppen on the basis that she had always minimal contact with James and Ken Allan. In the case of James Allan that was not so.

119 As with his first interview, I do not doubt that Dr McIntosh approached his task, as he understood it, fairly. Certainly, on its face, his opinion assists the plaintiffs. I do consider, however, that the reservations I have expressed about the acceptance of his earlier opinion have equal application. In the present context, it is the case that, in November 1992, he had been supplied by Mr Lukaitis with copies of various doctors' reports. But he did not give evidence that he had read them, let alone that they influenced his opinion as at December 1993.

120 I add this: in his letter sending medical reports to Dr McIntosh in November 1992 Mr Lukaitis said this:

"It seems clear to me now looking back that Mrs Tuppen was, around the critical time of the hearing before the Guardianship & Administration Board, in late 1991 at a low ebb in terms of her physical and mental state, primarily due to the hearing before the Board putting her under great emotional stress. As well, at the time, Mrs Tuppen was suffering from a broken bone in her shoulder which had not been diagnosed and, indeed, she may well have been treated quite wrongly by being given physiotherapy for the fracture instead of what turned out to be a remedial operation eventually performed by Dr Henry Byrne.

Thus pain and emotional stress may well have lead professional experts to believe that Mrs Tuppen was suffering from senile

dimensia (sic) but, as I have come to know during this case, stress and a foreign environment can affect these conditions in elderly people.

I was always puzzled during the Guardianship Board hearing that the professional assessments of Mrs Tuppen were so different to my own of her when I originally made an Enduring Power of Attorney for

her earlier in 1991, even allowing for the onset of some dementia.

It is easy to look back on these matters and I wish you to have the benefit of my view of her fluctuating state. It is quite shameful the stress that this lady underwent during the Board hearing. What I saw was the unwarranted persistence of her nephew, Robert Tuppen, in resisting her wishes and what appears now to me as rather

careless medical treatment by some of the doctors involved.

The final factor that I would like to comment upon for your consideration is that I am informed that Mrs Tuppen has recently changed from her local doctor, Dr Konos, to a new doctor, Mr Graeme Wood. One of the alleged reasons was that Dr Konos did not really know or have a record of the medications that were being administered to Mrs Tuppen. I am told by her carer, Denise Carrig, and her administrator, Robert Redfern, that her medication has now been cut down substantially. It has been my observation that her mental state is good at the moment and far better than I observed during the period of the Guardianship Board hearing."

121 No doubt Mr Lukaitis held the various views that he there expressed - including his robust condemnation of Robert Tuppen and his lay explanation for the disagreement between expert views and his own assessment of Mrs Tuppen's mental state. I do not conclude that those views had any impact upon Dr McIntosh. I do conclude, however, that they reflect an approach by Mr Lukaitis which lacked some objectivity. There are other instances, I think, of this tendency. I refer to his letter of instruction to Dr Murphy, his expressed purpose for engaging doctors to attend Mrs Tuppen at times when she executed documents, his failure to provide the doctors with lay or medical information, his inclusion of the penultimate paragraph in Mrs Tuppen's letter to the Board dated 11 August 1994, and the odd purpose to which he put the professional skills of his partner and employee on 20 September 1992. Those instances are not exhaustive. They have caused me to have some reservations about accepting at face value Mr Lukaitis' evidence concerning his client's apparent mental state from time to time. I do not suggest that he deliberately attempted to mislead me. But it does seem that he had a view about matters which may well have clouded his judgment, and thus influenced the thrust of his evidence.

122 On 12 August 1994 the Board applied Mr Scott, the third plaintiff, as administrator of Mrs Tuppen's estate in lieu of Mr Redfern. The latter was a manic depressive. At the time he required hospitalisation. Later he died.

123 In the period leading up to Mr Scott's appointment Mrs Tuppen had flirted with the idea of appointing Richard Norris as administrator. He had been willing to act, despite his conviction that a family member best not take on such a position. In any event, Mrs Tuppen abruptly changed her mind. That is how Mr Scott came to be appointed.

124 The second codicil to Mrs Tuppen's 1992 will was executed on 22 December 1995. It substituted Mr Scott for Mr Redfern as an executor - at Mr Scott's suggestion, agreed to by Mrs Tuppen. At the time of its execution, according to Mr Lukaitis, Mrs Tuppen approved (with one exception) the dispositions made by the 1992 will.

125 Mrs Tuppen died, as I noted earlier, on 10 August 1996. There is nothing in the chronology between December 1995 and August 1996 which is of particular relevance.

More evidence directed to the question of testamentary capacity

126 I have now outlined a good deal of the evidence upon which Mrs Tuppen's testamentary capacity at the different times must be considered, together with a considerable number of my conclusions and observations as to its import. A body of evidence was adduced, however, to which I have so far made no, or only passing reference. I now turn, in sequence, to the evidence of:

•

Ms Katrina Gunn;

•

The carers (Mrs Carrig, Mrs Murphy and Mrs Greenhalgh);

•

Margot Dorum;

•

Glenn Scott;

•

Richard and Digby Norris;

•

Dr Bennie;

•

Professor Chiu;

•

Robert Tuppen;

•

Harold Tuppen, Alison Inchley, James Allan and Kenneth Allan;

•

Dr Pick;

•

Doctors Wood and Tofler.

127 I shall also refer, but briefly, to the report prepared by Dr Honigman and Mr Keil in anticipation of the first Board hearing. That report was exhibited to Mr Lukaitis' affidavit as one of the medical reports "supplied" (by inference, to the Board). Neither Dr Honigman or Dr Keil was called to give evidence. That status of the report was not debated, although its content was the subject of cross-examination of some witnesses. I treat it, doubtfully, as some evidence of the history given by Mrs Tuppen, and of the opinion formed by Dr Honigman.

Katrina Gunn

128 Katrina Gunn was in 1991 an investigator employed by the Office of the Public Advocate. The purpose of her investigations was to prepare reports for the Board. She did that in Mrs Tuppen's case. Parts of her report were admitted into evidence.

129 It was my impression that, although lacking formal expertise, Ms Gunn would have been an accurate observer at the relevant time. That impression was gained both from reading the report and her presentation in the witness box. Counsel for the plaintiff pointed to an obvious error in the report. It did not cause me to reach a different impression.

130 The report, most pertinently, set out details of a visit made by Ms Gunn to Mrs Tuppen on 28 November 1991. The witness said, and I accept, that Mrs Tuppen was not "put under questioning". There was a conversation between them in which questions were asked.

131 Mrs Tuppen told the interviewer that she had minimal contact with her brother and sister. On the evidence, the latter assertion was incorrect up until the very late stages of her sister's life.

132 Ms Gunn noted that in the one and a half hour conversation Mrs Tuppen repeated many points over and over again.

133 Mrs Tuppen's account of her recent hospitalisation was vague and incomplete. She said that her husband was not satisfied about her being in hospital. He, of course, was then deceased. She told Ms Gunn that Robert Tuppen had ordered her out of hospital. That, on the evidence, was not the case.

134 In the course of the interview Mrs Tuppen said twice that Robert Tuppen currently managed her money. On the third occasion she said that "Robert" did. Asked, which Robert, she replied that she did not know now but Robert Tuppen did.

135 Asked how Robert Redfern had come to be appointed, Mrs Tuppen said that her husband had his card in his drawer. She thought he must be okay. That explanation, on the evidence advanced before me, seems likely to be mere invention. Mrs Tuppen also told Ms Gunn that Digby Norris had no involvement in Mr Redfern's appointment. Plainly that was not so.

136 At one point in the interview Mrs Tuppen explained the appointment of Mr Redfern by saying that he was a solicitor, and that Robert Tuppen was not.

137 She gave varying accounts of the reason for her dissatisfaction with Robert Tuppen. One of those accounts made mention of the Phantom incident - though the performance was said to be of the Wizard of Oz.

138 She gave varying reasons for no longer having Dr Pick as her doctor.

139 She appeared to be very unsure how her previous tax agent had come to be replaced. She believed, wrongly it seems, that it was Robert Tuppen's doing.

140 In my opinion Ms Gunn's evidence was of considerable importance. She was a person independent of the family, and free of any emotional attachment with Mrs Tuppen. The reported interview shows that Mrs Tuppen's memory was poor; that (perhaps by reason of poor memory) she gave positive answers which, despite likely appearance to the contrary, were incorrect; and that she ascribed certain conduct to Robert Tuppen, adversely, which was not his conduct at all. Whether ascribing such conduct to Robert Tuppen was the product of her own mind, or was the product of suggestion, need not be determined. The various aspects of the interview, not least the matter last discussed, suggest to me the likelihood that by late 1991 Mrs Tuppen's decision-making ability was likely to have been impaired.

The carers

141 Mrs Denise Carrig was a home carer who worked for Mrs Tuppen and her late husband between September 1998 and the latter's death in December 1990, and thereafter for Mrs Tuppen until her death in August 1996. From 1988 until late 1991 she performed the work as an employee of Camberlea. Then she set up her own company, by which she and a number of other carers were employed. As an employee of that company she continued to work with Mrs Tuppen after late 1991, apparently having quite a major role in the provision of care.

142 The witness told me that initially she looked after Mrs Tuppen three days per week. That went to three to four days per week by the time of the Board hearing in December 1991. After the hearing it went to five and sometimes six days per week. At some uncertain time it reduced back to two to three days per week. Mainly she provided day time care.

143 It was Mrs Carrig's evidence that, at the time of the first Board hearing, although Mrs Tuppen had some short term memory loss, her assessment of people, her reasons for making decisions, and for doing things, seemed appropriate and not capricious. She seemed to understand what she was doing, and was always able to offer reasonable and sensible explanations for her decisions.

144 She selected her own clothes each day, appropriate to the circumstances. She bought her own clothes. She continued to go out socially long after the first Board hearing. She drew her own cheques until the time of her death, and regularly attended at her bank. She used, appropriately, a variety of credit cards. She was sensitive to disclosure of her age, and took steps to prevent such disclosure.

145 Before the death of Mrs Tuppen's husband, said the witness, the deceased was drinking too much alcohol, mixed with prescription and non-prescription drugs. Her intake of both alcohol and drugs, however, was progressively reduced after her husband's death - by the efforts of the carers and doctors. Ingestion of drugs, as I understood the witness's evidence, was reduced more slowly, it continuing at quite high levels in 1991. Ingestion of alcohol was said to have decreased to minute quantities - part only of a single sherry glass per day.

146 In her evidence-in-chief the witness had a good deal to say about Robert Tuppen. None of it was good. To some of it I have referred already. At risk of repetition I note this evidence: The late Mr Charles Tuppen, having sought Robert Tuppen's assistance with financial and other matters, became concerned that the latter was not fully informing him, reporting back to him, and came to doubt the latter's reliability. He said, a number of times, that things had been taken out of his hands. On a Saturday morning in 1990 Robert Tuppen came to the house with documents (that is, the powers of attorney) which he pressed Charles Tuppen and his wife to sign quickly. They were rushed and the witness felt uncomfortable about witnessing the signatures (although she did so). After that incident Robert Tuppen attended the home less frequently. Some time after her husband's death Mrs Tuppen went to Kew Cemetery, and was angered that Robert Tuppen had not arranged for a suitable plaque to be erected where the ashes were interred. It was Robert Tuppen who, with Sister Fanning of Camberlea, arranged for Mrs Tuppen's transfer to Camberlea from Wellington Hospital in November 1991. There she was confined in appalling circumstances. During 1991 Mrs Tuppen became increasingly distrustful of Robert Tuppen. She complained that he would tell her nothing about her finances. He said that, if care was not taken, there may not be enough to look after her in the longer term. Once he put it in writing that she had to reduce her expenditure, that her money was running out, that she may have to look at alternative accommodation. Often Mrs Tuppen said that she did not trust Robert Tuppen; that he would not answer questions she asked him. She was angry with him for using her funds to buy tickets for the Phantom excursion. She was angry and upset with him for commencing the proceeding before the Board. On a number of occasions she told the witness that she was afraid of Robert Tuppen.

147 In her evidence the witness also had a good deal to say about the Norris family. All of it was good. Particularly what she said in respect of Digby Norris.

148 I am sorry to say Mrs Carrig cut a very poor figure in cross-examination; and in re-examination. She claimed to have been neutral in the inter-family dispute in Mrs Tuppen's lifetime; and, by implication, to maintain that neutrality in her evidence. But I am satisfied that in fact Mrs Carrig, for whatever reason, was an extremely partisan witness. She made some concessions. But she left me with the clear impression that if there was opportunity, by elaboration to an answer, to do Robert Tuppen harm, she would take that opportunity. If there was some part of a document standing in the way of her general thesis, its reliability was questioned. If it was said that she had made some statement at odds with the thrust of her evidence, she could not recall making it. These are the generalities, though there were exceptions. I go to aspects of the cross-examination.

149 The witness agreed that by 1990 Charles Tuppen's ability to manage his affairs had declined; she felt that he needed assistance. She encouraged him to have recourse to Robert Tuppen, as a person appropriate to give necessary help. She had written to Robert Tuppen on 27 June 1990 telling him that Mrs Tuppen had told her she was relieved that he was going to handle affairs for her. Yet, on her account, this same man, a few weeks later, rushed Charles Tuppen and his wife to sign documents, not giving them sufficient time to read the documents before signing them. She said that she had reservations about witnessing their signatures. But she had said nothing to Robert Tuppen about that. She did not know whether he had discussed the contents of the documents with his uncle and aunt before he attended; and she had not always been present in the room on the day the documents were signed.

150 It may be that Mrs Carrig has now established in her mind the belief that Robert Tuppen behaved inappropriately in some way on the occasion which I have just described. I am quite clear in my conclusion that such was not her belief on the day; and that it was not the fact.

151 Dealing still with Charles Tuppen, it was plainly the thrust of Mrs Carrig's evidence-in-chief that not only did he speak about Robert Tuppen in a critical way in the last period of his life, but that there was substance to the criticism.

152 Bearing in mind the fact that by 1990 the witness believed that Charles Tuppen was incapable of managing his affairs, and needed assistance, it seems to me strange that she would consider worthy of repetition criticisms allegedly made by Charles Tuppen concerning the conduct of Robert Tuppen - criticisms redolent of the response of an old man to a decline in his mental powers.

153 Robert Tuppen, I add, denied that Charles Tuppen was concerned about not being kept fully informed. He must have meant by that evidence that his uncle had made no complaint to him, and that no complaint had been relayed. I accept his denial. If, which I doubt, Charles Tuppen did make criticism of his nephew to Mrs Carrig, I am satisfied that it was not of substance.

154 Mrs Carrig agreed in cross-examination that during the time when she was working for Camberlea a day book was kept at the deceased's home, in which a day to day record of events was entered by the carers. About half the entries were made by her. The book itself was not proved in evidence. What was shown to the witness was a document headed "Chronology of Events Regarding Mrs Doris Tuppen" - apparently excerpted from the day book. It appears that this document was produced to the Board at the 1991 hearing.

155 The witness claimed that the excerpts were in a number of instances an inaccurate transcription of entries in the day book. They misstated or overstated the extent of Mrs Tuppen's disabilities. She did not know why that was so. She surmised that an explanation for the alleged inaccuracies was that her then employer, Camberlea, had deliberately falsified the excerpts so as to lead the Board astray; and that this was done to better its financial interests - it having a lot of empty beds at the time.

156 I have no reason to doubt that the entries whose accuracy was disputed were an accurate transcription of entries in the day book. It is probable also that the entries in the day book were themselves an accurate portrayal of events. They accord with the evidence of other witnesses - for example, of Dr Pick - and with the timing of other events which the evidence shows to have occurred.

157 Being referred to the excerpts, Mrs Carrig agreed that when she commenced work for the deceased the latter drank alcohol to excess and was taking anti-depressants and painkillers indiscriminately. She and her husband were drinking two bottles of brandy a week. Her moods were labile, and sometimes tearful to almost hysterical. She was then dependent on alcohol and drugs. Until 1991 she persistently requested increased medication.

158 Mrs Carrig agreed also that in 1988 Mrs Tuppen had incidents of disorientation and hallucination. By early 1989 she was very repetitive in conversation and was confused.

159 Over the three years up to late 1991, the witness confirmed, Mrs Tuppen had in excess of 20 falls. On approximately five occasion she sustained fractures. Twice she was admitted to hospital. Often the falls were associated with the use of alcohol and drugs. Often she could not recall whether or not she had fallen.

160 After a fall in March 1991 Mrs Tuppen had been hospitalised. On discharge she had a "level of confusion". She required 24 hour care. The witness would not agree that the deceased had then been forgetful and repetitive. But it seems likely to have been the case.

161 In May 1991, according to the witness, Mrs Tuppen was feeling neglected by her family. She was lonely and depressed.

162 In June 1991 Mrs Tuppen indicated to the witness that she was annoyed that Robert Tuppen had reduced the hours of the carers. She knew at the time there was a general problem with accounts. Asked whether, until that time there had been pretty much free range in terms of time worked, she said "No, not really". I have concluded, it will be recalled, that Robert Tuppen did not reduce the hours of the carers. But I accept that Mrs Tuppen made the remark attributed to her.

163 The witness agreed that, in 1991, Mrs Tuppen could not live independently. "She could lead a life of quality and contentment at home, with support". She needed personal care and emotional support.

164 The witness said, of the Phantom incident, that it "was a turning point". She said, "I don't think we realised the extent of what an enduring power of attorney could involve". I have earlier expressed the view, in this connection, that Mrs Carrig identified very closely with Mrs Tuppen; and had her own perception of matters bearing on her patient's welfare.

165 The witness elaborated upon the theme deriving from the Phantom incident. She claimed that Mrs Tuppen became concerned that Robert Tuppen might use a cheque for his own purposes. If that was a concern expressed by Mrs Tuppen, there being no suggestion that any such event occurred, it indicated an unwarranted suspicion.

166 Cross-examined about Mrs Tuppen's allegedly adverse reaction to the plaque erected at the place where her late husband's ashes were interred Mrs Carrig could not recall the year when the incident occurred. At one point she said that she did not tell Robert Tuppen about his aunt's concern, she did not think he was really involved in things at that point. She could not say whether or not Robert Tuppen had shown the plaque to his aunt, or discussed it with her, before it was erected. He gave evidence, which I have accepted, that there was consultation between he and his aunt about the matter. Accepting that Mrs Tuppen made the complaint attributed to her, her conduct revealed forgetfulness and the development of an unwarranted set against Robert Tuppen.

167 Cross-examined about a portion of the excerpts which recorded that on 17 August 1991 Mrs Tuppen was found to be depressed, with confused speech, and had been drinking heavily, the witness demurred: "It wasn't how I found her". I do not accept her evidence upon the matter.

168 The witness had said in evidence-in-chief that for quite a period of time Digby Norris had dinner with his aunt at approximate two week intervals. That commenced in September 1991. In re-examination she gave different evidence about this. She said that he visited before September 1991, he was "certainly" the most regular visitor, he came for dinner, and took Mrs Tuppen on outings. He had been a regular visitor all the time that she had cared for the deceased and her late husband. The witness also said in re-examination that whilst Mrs Tuppen had expressed adverse views about her family generally - that they did not pay her sufficient attention - she had never said anything adverse about Digby or Richard Norris.

169 It was suggested to the witness that on 23 October 1991 she rang her employer to say that new locks had been installed that day, that a letter had been forwarded to Robert Tuppen and they were expecting trouble. The witness said that she had made no such communication, although she knew that the locks had been changed at some time. She did not know what the letter would refer to. She did not know what trouble they would be expecting.

170 I am convinced that, those answers were, unfortunately, not truthful. The power of attorney in favour of Robert Tuppen was revoked, and the power in favour of Mr Redfern was executed on 21 October 1991. The witness agreed that she was told of those matters on the following day. A letter advising those matters was sent to Robert Tuppen (in fact, not until 24 October 1991). It was no doubt the case that the Norris brothers expected trouble. I think it highly likely that this was communicated to Mrs Carrig, probably by one of them. The locks were changed at the time. In those factual circumstances, I do not doubt that Mrs Carrig conveyed the matters set out in the excerpt. It is not credible that she affected not to remember doing so.

171 Likewise I do not accept her denial that on 22 October 1991, she rang Camberlea to advise that there was a new accountant, Mr Redfern, that he had come last evening with nephews and solicitor, and that Mrs Tuppen had signed the papers. There was an excerpt to that effect. It fits entirely with circumstances known to Mrs Carrig at the time.

172 Concerning Mrs Tuppen's removal from Camberlea in November 1991, Mrs Carrig confirmed that it was done at the direction of Mr Lukaitis and Mr Redfern. When she arrived at Camberlea they were present, along with Richard and Stanley Norris. Mrs Tuppen was removed without asking whether Dr Pick approved, although she knew that the doctor had played a role in the deceased's admission to Camberlea. At discharge, Mrs Tuppen was not a well woman, she required 24 hour care. She wished to go home, she was being restrained and was not being treated properly.

173 In re-examination the witness was asked whether the deceased had expressed any views about Harold Tuppen. She said that the deceased had not done so, "She didn't really hold a very strong view towards Harold Tuppen".

174 In answer to my questions Mrs Carrig said that in 1992 the deceased would sometimes know what day of the week it was, sometimes not. She would generally know the month and year. She knew her age. She may not have been able to name the current or immediate past Prime Minister.

175 I have not referred to each topic of cross-examination. Others are mentioned in the chronology section of these reasons. Again, several matters late emerged which were not the subject of cross-examination at all. I have not taken them into account in assessing the quality and reliability of Mrs Carrig's evidence.

176 The plaintiffs called two other carers. The first, Beverley Murphy, was employed by Mrs Carrig's home care agency to look after Mrs Tuppen between January 1992 and the time of her death.

177 The witness's evidence may be shortly but fairly summarised this way: Mrs Tuppen enjoyed conversation. She spoke about events in her much earlier life, her family, and several members of the Royal family. She said of Robert Tuppen that he wanted her money. Mention of his name angered her. She was fond of Mrs Inchley, but feared that whatever she said to Mrs Inchley would be passed on to Robert Tuppen, whom she feared. She said that Mr Tuppen was taking her back to the "court". The aim of that was to get her out of her home and into a nursing home. She had a generally good recollection of events (most of the instances recounted were well in the past) but generally did not know the day or the week or the date. Her short term memory seemed to be affected. She would say that she had not heard from people for some time when that was not so. When reminded she would respond with a comment such as, "Oh, yes".

178 Bernice Greenhalgh began work as a carer in 1990, and worked for Mrs Tuppen from March 1993 until shortly before her death. The witness, who was not cross-examined, described Mrs Tuppen as a keen conversationalist. Mostly they spoke about long-past events, but on occasions she spoke about more recent events - particularly personal and family difficulties. She spoke well of Digby Norris. But she said of Robert Tuppen that he should not have been at the Board hearings and that her affairs were none of his business. The witness recalled that Mrs Tuppen sometimes repeated herself, but could not recall a single instance where she had said something which the witness thought wrong or inappropriate.

Margot Dorum

179 I next refer to the evidence of Margot Dorum. She is a qualified teacher and librarian, but for many years has managed a suburban clothing retail shop. In

1991 she applied for the position of a voluntary community guardian. In 1992

she was so appointed. Between May 1993 and Mrs Tuppen's death in August

1996 Mrs Dorum was her guardian. She was responsible for Mrs Tuppen's health and accommodation needs. She met with Mrs Tuppen or spoke with one of the carers at about six weekly intervals. Mrs Tuppen never initiated contact.

180 The witness described Mrs Tuppen's long-term memory as very good, and her short-term memory as inaccurate at times.

181 At the witness's first meeting with Mrs Tuppen the latter said that she wanted nothing further to do with Robert Tuppen or Alison Inchley. She had become unhappy with Mr Tuppen when he started to interfere with her affairs. As for Mrs Inchley, she did not want to see her, not because she did not like her, but because she was Mr Tuppen's sister, and was thus on side with him, and therefore could not be trusted any longer. At the same meeting Mrs Tuppen described James Allan as "not family"; and that she did not want to appear before the "court" again. At a later meeting, at which her attendance was requested by Mr Lukaitis, Mrs Tuppen reiterated that she wanted nothing to do with Robert Tuppen.

Glenn Scott

182 Glenn Scott, the third plaintiff, was appointed administrator of Mrs Tuppen's estate by order of the Board of 12 August 1994. He remained administrator until her death. He witnessed the codicil executed by her on 22 December 1995. On that occasion Mr Lukaitis read through the will and codicil. Mrs Tuppen made comments indicating awareness and approval of its contents.

183 In the period that the witness was administrator he met with Mrs Tuppen about fortnightly, to inform her of her financial affairs or to give her money for personal use. She appeared to him to understand his explanations about the nature of her investments.

184 At times Mrs Tuppen complained that Robert Tuppen had caused her great stress and embarrassment.

185 The witness found Mrs Tuppen's long term memory to be quite reliable. He also instanced occasions where she recalled things that had happened or been said between them some weeks previously.

186 It was his impression that Mrs Tuppen knew who her various relatives were.

Richard and Digby Norris

187 I have already detailed the involvement of these men in events forming part of the chronology. I will not repeat it. Beyond that, Richard Norris, an audit manager by occupation, gave evidence that, save for a period long ago when he was overseas, he visited his aunt and uncle two to three times a year. He was asked by his uncle to be executor of his and his wife's will in 1988, and he consented. There was talk of him being appointed an attorney under power. That did not happen. When in 1991 his aunt complained that she was not getting information from Robert Tuppen about her financial affairs, she asked him whether he would act as attorney. He declined. Later, after the Board application had been made, his aunt spoke of her upset with Robert Tuppen, that she did not trust him, and wanted nothing to do with him. In conversation with him she had "a clear recall of things in the past ... and matters relating to her broader family". She "was keenly aware of family matters, and expressed quite strong views on some".

188 Cross-examined, the witness said that he attempted to visit his aunt once a month during 1991. He observed her in moods of depression at times. He was unaware of her over-use of alcohol and drugs.

189 Digby Norris, a company director, before that a partner in an interior decorating business, and before that again a divisional merchandise manager at Georges, gave evidence of knowing Mrs Tuppen all her life, and of maintaining regular contact with her up to her death. It was contact between them and jointly with his mother. There were lunches, outings, concerts and so on. Her recollection of past events was very clear, as well as her understanding of her numerous relatives. He described her as "alert and precise in her apprehension". After Mr Redfern's appointment she often told him that she had been very badly treated by Robert Tuppen. She wanted nothing more to do with him or her family. She did not dislike Mrs Inchley, but said she was reluctant to speak with her because she was afraid it would be passed on to Robert Tuppen. She said of James Allan that he was "not family". The witness said that he did not ask his aunt for either money or personal items.

190 Digby Norris denied, in cross-examination, that his description of his aunt's understanding of her numerous relatives as being "very clear" was an overstatement. It surprised him that Mrs Tuppen had been unable to recall a number of her relatives, including one of his brothers, in August 1993.

191 The witness made, I consider, a very unimpressive attempt to grapple with his aunt's failure to recall where her late husband's funeral service had been held.

192 The witness said he had no knowledge of his aunt's overuse of alcohol. He had a limited knowledge of her use of drugs.

193 The witness said he knew nothing of episodes of hallucination, disorientation and confusion suffered by his aunt; so he had no knowledge of occasions when she had believed her late husband to be alive.

194 Mr Norris suggested that "events" had caused Mrs Tuppen to depart from her husband's wish to leave the Boyd painting to Robert Tuppen. Mrs Tuppen had expressly asked him if he would accept it. He did so knowing that it had been, as it were, reserved for Robert Tuppen. He had "admired" the painting, but he had not sought it. He had admired lots of things in his aunt's house.

195 The witness agreed that, in view of his aunt's comments about James Allan, it was surprising that she had increased his share of residue by the April 1992 codicil. He could not explain why his aunt would have increased the share of his brother, David, by that codicil. That brother saw very little of his aunt.

196 The witness could give no explanation why his aunt would have said (see the evidence of James Allan) that he had asked for her dinner set. But "the subject of that dinner set was talked about".

197 I took Richard Norris to be a straightforward man. I think that he did not have close contact with his aunt. His observations as to her presentation aid the plaintiffs' case. But they are certainly not decisive.

198 I did not take Digby Norris to be a straightforward man. The evidence shows that he did have more contact with Mrs Tuppen than her other nephews and niece. It may well be that they shared common interests. That seems to have been the situation when Charles Tuppen was alive. It is some explanation of the great increase in his potential share of residue between the March 1991 and September 1992 wills.

199 I consider there to be no doubt that Mr Norris overstated his aunt's mental acuity in the period commencing with her husband's death. His evidence does not sit easily with the evidence of outsiders - lay and professional. In light of his regular meetings with his aunt, his evidence that he knew nothing of her over-use of alcohol or of drugs, or episodes of hallucination, disorientation and confusion seems pretty improbable.

200 I consider it very likely that Mr Norris played upon his aunt's subjective concerns about Robert Tuppen's performance of his duties as attorney. It was he who suggested change, and who got Mr Redfern involved. This was all done within a short time of Richard Norris' letter of 8 October 1991. Again, having the locks changed must inevitably have given substance to his aunt's fears about Robert Tuppen.

201 I consider it very likely that Mr Norris did not tell the whole story about the Boyd painting and the Rosenthal dinner set. I consider it probable indeed that he intimated, though not necessarily by frontal attack, his interest in those items. It is, I think, significant that of all the paintings only one - a valuable one, I should think - was gifted inter vivos; with, in effect, written confirmation of the gift. Thus was avoided any possible dispute about the validity of a testamentary bequest (although that is not the end of the story).

202 The episode concerning the Boyd painting shows, I think, that by September 1992 Mrs Tuppen was able to be led. Suggestibility and susceptibility to manipulation are features of dementia. If such forces are at work, they could scarcely not impair decision-making ability.

Dr Bennie

203 Dr Stephen Bennie became Mrs Tuppen's general practitioner in September 1992. He so continued until her death. In that period he saw her quite often. He conducted no formal mental testing. According to his affidavit sworn 10 November 1998 his assessment of her recollection and mental state was that it varied from being unreliable at times to very reliable at others.

204 In 1993 and 1994 he prepared medical reports. They were apparently inconsistent, as he acknowledged in a further report written to the plaintiffs' solicitors in 1998. In his 1993 report he noted that the patient's major problems arose from increasing dementia and fits of depression. Her memory, whilst varying, was quite unreliable in both time and place. She had quite pronounced mood fluctuations, was often depressed and difficult to coax out of bed in the morning. She was anxious a lot of the time, and often teary. In his 1994 report he described her as being prone to severe depression and anxiety; but made no mention of dementia. He described her as having little memory loss. In his 1998 report he said that his only logical explanation for the apparent inconsistency in his earlier reports was that Mrs Tuppen was going through a good period at the time of the second report.

205 In viva voce evidence the doctor told me that he had attended on Mrs Tuppen on 7, 11 and 17 September 1992 - that is, in the period leading up to execution of the will now propounded. He did not give evidence of her apparent mental state at those particular consultations.

206 The doctor also said in viva voce evidence that in the period 1992 to 1994 Mrs Tuppen was suffering from "more confusion" than dementia. She was confused when she had an illness, or was more depressed. That evidence was not consistent with the content of his 1993 report. The doctor conceded that dementia was his diagnosis at that time. It could not have been a diagnosis borrowed from Dr Wood; because Dr Bennie believed he had not seen a report from Dr Wood at the time. In the event, the position commonly adopted by the parties in final addresses, properly so, was that Mrs Tuppen did suffer from a degree of dementia in and after 1991.

207 The doctor told me that he always saw Mrs Tuppen in the company of a carer. That was done to find out how his patient had been - because he could not rely on her history. He also had a carer present when advising as to ongoing treatment - so that his advice would be followed.

208 The doctor was referred to the notes of the practice. He agreed that in 1991 and 1992 there were entries indicating, in substance, that Mrs Tuppen believed her deceased husband to be still alive.

209 Looked at overall, I think that Dr Bennie's evidence did not positively assist the plaintiffs' case. He eventually characterised the dementia as being "mild" at the outset. But his evidence generally about the presence or absence of dementia was variable. I consider that the fact that he had a carer present during history-taking, and when advising about treatment, was significant. It strongly suggests that Dr Bennie believed that his patient's memory, her ability to marshall facts, and her ability to follow advice was pretty limited. Such a belief is consistent with the conclusion reached by Dr Wood concerning the extent of Mrs Tuppen's impairment; and also with the opinions of Drs Tofler and Pick.

Professor Chiu

210 Professor Chiu, who did not examine Mrs Tuppen in her lifetime, gave expert evidence based upon his consideration of documents. He is highly qualified, being Associate Professor of Psychiatry of Old Age at the University of Melbourne, and Director of Geriatric Psychiatry at St George's Health Service, Kew. He holds other positions also which are particularly related to geriatric psychiatry.

211 Dr Chiu opined, by his report dated 27 July 1998, that Mrs Tuppen's mental state "would appear to be such as to indicate a clear testamentary capacity prior to signing her last will" on 20 September 1992. That opinion rested on the reports of Dr Murphy dated 13 May 1992, of Dr McIntosh dated 21 September 1996, and on Dr Murphy's affidavit sworn 20 June 1997. He distinguished between decisional capacity and competency. At the heart of his opinion was this proposition:

"A patient may be generally not capable of making most decisions or not able to engage rational thought process on most matters but capable of focusing on a specific matter of importance to her. That decisional capacity needs only a minimal or baseline functional level necessary for a specific decision rather than an ideal or perfect comprehension and rational thought for many other aspects of decision making requiring full and intact cognition."

212 So Professor Chiu able to rationalise the reports of Drs McIntosh and Murphy on one hand, and of Dr Wood, the treating psychiatrist, on the other. He was able to accept, consistent with that rationalisation and his overall thesis, that the deceased suffered from a "very mild cognitive impairment" when assessed by Dr Wood on 26 November 1991; and that findings noted by Dr Wood in his letter of 24 February 1993 supported a diagnosis of moderate dementia. Indeed, certain matters noted by Dr Wood and of which the plaintiffs' solicitors were advised in conference with the doctor in 1998 - were such as occur in the "middle to late stage of dementia".

213 In viva voce evidence the professor expanded upon his general thesis. He said that persons with mild dementia generally have decisional capacity to make a will, provided that the dementia does not impair judgment, and that there is not a delusional interpretation of the environment. Even moderate dementia does not, by itself, remove an individual's decisional capacity. In either case the picture may be complicated by co-occurring medical conditions and symptoms.

214 The witness agreed, in answer to my question, that a person verbally expressing a delusion may sound perfectly rational and credible in doing so. Some suspected delusions are impossible to check. But when a check can be made, it should be made.

215 The fact that a testator has a delusion about a particular possible beneficiary, according to the witness, will not necessarily deprive that person of testamentary capacity. Changes to a will in respect of the particular beneficiary may be attributable to non-delusional, rather than the delusional, considerations.

216 The witness distinguished between delirium and dementia. Each can produce cognitive impairment, disorientation and hallucinations. They can co-occur in elderly people. One possible cause of the former, which is transient in its effects, is drug ingestion - even in therapeutic doses. He implicated Prothiaden as a drug which may cause confusion and memory impairment in old people; likewise Normison and Xanax. Prothiaden may also cause hallucinations. The deceased was prescribed each of these drugs at different times in 1991 and 1992. Any adverse effect of these drugs will end, according to the professor, when their excretion is complete (in the case of Prothiaden, at longest a week after ceasing to ingest the drug).

217 Turning to the reason why Prothiaden and Normison were prescribed, the professor said that the former is a treatment for depression and that the latter is a treatment for insomnia. Depression and insomnia can co-exist with dementia.

218 The professor described a score of 18 out of 30 on the Folstein Mini-Mental Test - for a woman of 88 as showing, at worst, mild cognitive impairment. But I think that he acknowledged that this characterisation would depend upon the level of the patient's education.

219 The progress to severe dementia in the case of a woman of 88 diagnosed with mild dementia, the professor said, was unlikely to be less than five years.

220 The point of these two pieces of evidence, as I understand it, is that Mrs Tuppen was diagnosed as having mild cognitive impairment, and scored 18 out of 30 on the Folstein test in late 1991. Ergo, plaintiffs' counsel argued, she could not have been demented to a moderate degree in late 1992.

221 The witness was taken by counsel to the history recorded by Dr Tofler in his report dated 28 November 1991. His interpretation of the history depended, at least in significant part, upon its being accurate and upon the absence of any delusional interpretation.

222 Further with respect to the Folstein test, the witness said that patients under stress will perform poorly. The deceased was then facing the Board hearing, a potentially considerable stress. Thus, I think, was an attempt made to minimise the significance of the test, in respect of which the witness said that for research purposes 20 is the cut off point for mild cognitive impairment, and that beyond (ie: below) 17 is now considered to be severe dementia.

223 The witness agreed that a number of deficits identified by Dr Tofler evidenced impairment of frontal lobe function. A test performed by Dr McIntosh evidenced parietal and frontal lobe damage. The frontal lobe is responsible for the process of making judgments. But, said the witness, the absence of marked personality or behavioural change in Mrs Tuppen's case (according to Dr Tofler's report) meant that there was unlikely to be great damage to decisional capacity. The witness disagreed with Dr Tofler's conclusion that in November 1991 Mrs Tuppen had evidence of a significant dementia. It was mild, at worst moderate.

224 Cross-examined, the witness agreed that alcohol abuse can leave permanent adverse effects. Tests for alcoholic brain damage can be done. There was no evidence that they had been performed.

225 The witness said that his first criterion for intact decision-making capacity would be satisfied if, many significant changes being made in sequential wills, there was good reason for such changes to be made.

226 Professor Chiu's opinion deserves, if I may respectfully say so, much consideration. In the end, as will be seen, I do not accept his conclusion. That is not because I reject his opinion that a patient with dementia may retain testamentary capacity; but because I do not regard the material upon which he relied - in particular the reports of Drs Murphy and McIntosh - as having the evidentiary value attributed to them by the professor. So also, my analysis of the lay and medical evidence, considered in conjunction with provisions made by various testamentary documents, does not permit me to reach the same outcome as did the professor in respect of the four criteria specified by him.

Robert Tuppen

227 I have already referred to many aspects of this witness's evidence when dealing with the chronology of the matter. I will not go over that ground. I note a few other aspects of his evidence.

228 It was his recollection that his aunt only attended the first Board hearing on the morning of 2 December 1991. She made a private statement to the Chairman. He was "not so sure" he saw her after that.

229 He said that when Richard Norris wrote to him on 8 October 1991 both Richard Norris and Digby Norris must have known that his aunt was in a sound financial position. In cross-examination he conceded that their knowledge would have been incomplete.

230 He said that the outstanding feature of his aunt's presentation was that her re-telling of stories became more and more repetitive, and the stories themselves shorter and shorter. This tendency was well apparent by the time of her husband's death, and it worsened in 1991. Her short-term memory was disappearing. Her long-term memory was still good. At the same time a great pleasure in her life - remembering the birthdays of family members, and buying them presents - became apparently compromised. Her dealings with the family contracted from mid to late 1991 onwards.

231 A matter of complaint by Mrs Tuppen was that a cheque which she drew was dishonoured. Mrs Carrig gave evidence that this occurred during the Christmas holidays of 1991-92, and that the cheque was dishonoured because, according to the bank officer, it required Mr Tuppen's counter signature. Mr Tuppen was cross-examined about this incident. He recalled another occasion when a cheque drawn by his aunt had been dishonoured. It had been drawn on her late husband's account. That incident seems to have occurred, according to his evidence, in July 1991. It was a different incident to that about which Mrs Carrig gave evidence. Mr Tuppen did not recall that he had to countersign her cheques. He agreed that, after the first Board hearing, and before the Board's decision, he stopped dealing with his aunt's financial affairs.

232 What comes out of all of this, I conclude, is that there were two occasion where cheques were dishonoured. One in mid 1991 when Mrs Tuppen drew a cheque on her late husband's account, which had been closed. One when Mrs Tuppen drew a cheque on her own account in the 1991-92 holiday period and there were (probably) inadequate funds available. The first incident indicates some confusion on Mrs Tuppen's part. The second incident reflects Robert Tuppen's reluctance to deal with his aunt's funds when his authority was in doubt.

233 It was put to the witness that he had first contacted the Board on 11 November 1991. He was unable to recollect if that was so, but agreed that it was entirely possible. He agreed that, if he did so, such contact must have related to the power of attorney dispute. For the other issue, his aunt's removal from Camberlea, did not arise until 13 November. About that second issue his position was simple: his aunt should not, in her condition, have been removed from full time nursing care.

234 Mr Tuppen agreed in cross-examination that his aunt had shown poise when, after leaving the Phantom of the Opera, her wig had blown off. It had been retrieved. She had concealed the discomfiture she must have felt.

235 The witness agreed that his aunt avoided confrontation. This might possibly explain her complaining to others about his conduct; but telling him she was happy with the situation. His belief, however, based on his own experience, was that his aunt was not incapable of making a decision and communicating it to the person affected.

236 The witness was cross-examined about a letter that he wrote to his aunt on 13 November 1991. In it he had said that, despite her removal from Camberlea, "fortunately, you are okay". He doubted, he said, that he would have written that he had known that his aunt's carers had resigned from Camberlea's employment. But in any event, his application to the Board was initiated before he became satisfied, if he did, about his aunt's wellbeing.

237 The witness agreed that Mrs Tuppen had in her 1982 will referred to her "sister", Annie Norris, whereas Mrs Norris was in fact her sister-in-law. That error, I note, was repeated in later wills and codicils. It could not be said, then, that Mrs Tuppen's failure to correct the error in those later documents was evidence (at least necessarily, or probably) of the extent of her dementia at those later times.

238 Mr Tuppen told me that he attempted to see his aunt after the first Board hearing. But he only saw her once. That was at a later Board hearing. He said hello, but she did not answer him.

239 In re-examination Mr Tuppen said that when he saw his aunt at Wellington Hospital after her November 1991 fall, he thought she was in a desperate state, both physically and mentally. He was very worried about her.

240 Asked whether it was his belief during 1991 that her assets were adequate to permit his aunt to remain at home with appropriate care, the witness said that "so long as she was not too long lived, there was plenty of money".

241 Robert Tuppen was a witness who did not always give concise or precise answers. He drew back from giving positive evidence when his recollection was unsure. For that he cannot be criticised. He did not present with the suavity of Digby Norris. He used rougher language. He did present as a man who cared much about his aunt's welfare. I have reached the firm conclusion that his presentation reflected the fact, although that does not bear on resolution of the critical issue in this proceeding.

242 Mr Tuppen presented also as a man who had a strong sense that his cousins had done the wrong thing by his aunt - particularly in having her removed from Camberlea; and in advising her to appoint Mr Redfern in his stead. It is not necessary to conclude whether or not his sense about the matter was well founded; it is enough to say that I do not believe it to have distorted the reliability of his evidence.

243 In a number of respects I have already accepted Robert Tuppen's evidence. His observations of his aunt's failing memory, and her withdrawal from contact with the family, was not at odds with other evidence which I accept. He did communicate with her in 1991 in a way which suggested that his impression then was that her mental powers were greater than his evidence suggested was the case. I doubt, however, that the apparent anomaly shows more than that, like a number of others, he did not then appreciate the extent of her disability.

244 Mr Tuppen's evidence did not seek to conceal the fact that, after the first Board hearing, his aunt had nothing to do with him. It might be said that this was in any event incontrovertible; and that the circumstance advantaged the defendants by showing Mrs Tuppen's erratic behaviour. But I do not take Robert Tuppen's evidence on the matter to be anything other than the truth, given regardless whether its effect was for good or bad from the defendants' standpoint.

245 In short, I consider that the witness was credible and his evidence reliable.

Harold Tuppen, Alison Inchley, James Allan, Kenneth Allan

246 Harold Tuppen, the father of Robert Tuppen, gave evidence of a longstanding close relationship between he, his brother (the late Charles Tuppen) and his sister-in-law (that is, the testatrix). For a long time they had lunched regularly, along with Robert Tuppen. That arrangement slowed after his brother's retirement - which seems likely to have been earlier than 1986.

247 Lunches apart, the witness, his brother and sister-in-law met on family occasions.

248 After Charles Tuppen's death, the witness's contact with the testatrix decreased. That was because the witness's wife was in ill health. Moreover, he lived a considerable distance from Doris Tuppen's home.

249 He knew of no ill will borne by the testatrix towards either he or his son.

250 He had no involvement in his son's management of the financial affairs of his brother and sister-in-law.

251 It was his observation that his sister-in-law, whom he did not see often after his brother's death, became noticeably depressed. She had been forgetful even before her husband's death - "going back for some time". After her husband's death she also seemed confused.

252 I do not set much store by Mr Harold Tuppen's evidence concerning Doris Tuppen's presentation after her husband's death. He did not see much of his sister-in-law, as he emphasised in his evidence.

253 Counsel for the plaintiff cross-examined the witness in respect of his removal, and the removal of his son, as executors of the wills of his brother and sister-in-law by codicils executed in 1988. This was, as I understand it, put to show that Charles and Doris Tuppen were in some way disaffected with Harold and Robert Tuppen by 1988. The witness's answers were based on uncertain recollection; but they had about them a sense of probability. I would not draw the inference invited by the plaintiffs. It is at odds with events which occurred between 1988 and September 1991; and with Harold Tuppen's evidence.

254 No evidence was adduced from the witness to suggest that, in the Board proceeding, he was partial to either "side"; or that (if he was) he did anything at all to convey that partiality.

255 Mrs Inchley, the daughter of Harold Tuppen and sister of Robert Tuppen, gave evidence that over the years she maintained a close relationship with her aunt and the late Charles Tuppen. She believed that, as their only niece, she was favoured in their eyes.

256 Until her uncle's death she not only visited he and his wife on a number of occasions each year, she and her aunt spoke by telephone about fortnightly. The frequency of calls decreased after her uncle's death. When they did make contact, her aunt seemed depressed and forgetful. There were many incidents of forgetfulness. Mrs Tuppen became more and more repetitive. She responded to topics, but did not initiate conversation. Telephone calls became shorter and shorter. There were instances of confusion. Thus her aunt repeatedly attributed her injuries in November 1991 to a fall in a prickle bush. Mrs Tuppen had been meticulous over the years in sending cards and presents. Her attention to those matters decreased.

257 In 1994 the Board ordered Mrs Tuppen's guardian to consult with Digby Norris and the witness on matters of major importance concerning Mrs Tuppen's health care and accommodation. The witness knew of no objection taken by her aunt to that arrangement. There is no evidence that her aunt did object to it.

258 Once Mrs Tuppen told the witness that she was upset about Robert Tuppen "because he had taken her to court". But the witness believed that there had not been a change in her relationship with her aunt. In telephone calls made from the time of the first Board hearing onwards Mrs Tuppen was "obviously delighted" that the witness was contacting her.

259 There was some evidence that on at least one occasion the carers phoned the witness asking her not to visit Mrs Tuppen - as had been arranged - and that on another occasion Mrs Tuppen rang and said she was not well, and would the witness not come. But there was also evidence of communications from her aunt in 1994 the terms of which are inconsistent with there having been a breakdown in their relationship.

260 The wills made by Mrs Tuppen in 1982 and 1991 show very clearly, I think, the favoured position which Mrs Inchley held in her aunt's affection.

261 The reduction in prospective disposition made by the 1992 will was dramatic. There had been a lesser reduction by the 1992 codicil to the 1991 will. Neither reduction seems to me to have been explained by any conduct on Mrs Inchley's part. The testatrix, indeed, wrote to her niece after 1992 expressing sentiments which do not fit neatly with the reductions to which I have referred. Even accepting that Mrs Tuppen was not inclined to criticise a person to his or her face, it was another thing altogether for her to have written a letter and card volunteering affection.

262 So far as I can see the only possible explanation for the great reduction in Mrs Inchley's prospective entitlement lies in remarks attributed to Mrs Tuppen by Mrs Murphy, Mrs Dorum and Digby Norris. There was the evidence of Mrs Murphy that Mrs Tuppen had said she was fond of Mrs Inchley, but feared that whatever she said to her niece would be passed on to Robert Tuppen. Then there was the evidence of Mrs Dorum that Mrs Tuppen had said she wanted nothing more to do with Mrs Inchley not because she did not like her, but because she was Robert Tuppen's sister, was thus on side with him, and therefore could not be trusted any longer. Digby Norris gave evidence to generally the some effect as the two ladies.

263 There is no reason to doubt that the reported remarks were made. They do not sit easily with the communications which passed between Mrs Inchley and her aunt. There is an element of suspiciousness - one might well think paranoia - about those remarks.

264 Counsel for the plaintiffs submitted, as I understood it, that the reductions in disposition could be sensibly explained by the decrease in contact between Mrs Inchley and her aunt as the years went by. There are, I consider, a number of problems with that submission. First, any decrease in contact seems to have been caused - to a considerable extent - by Mrs Tuppen's inability to maintain a conversation. Second, it is confronted by the evidence of Mrs Inchley, which I accept, that her aunt was obviously delighted when she called. Third, it is confronted by the 1994 communications and want of any opposition on Mrs Tuppen's part to the role to which the Board appointed Mrs Inchley in 1994. Fourth, if the hypothesis was sound, it should be supposed that others who saw at least no less of Mrs Tuppen in the latter years of her life would have had their prospective entitlements increased. That was not always so - see, for example, the case of Richard Norris.

265 James Allan gave evidence. According to Mrs Carrig, the testatrix had said of him many times that he was not a blood relative; that she thought he was a very loud, brash person, and resented him coming without phone-calling ahead.

266 I accept Mrs Carrig's evidence that Mrs Tuppen said those things about Mr Allan. It is the fact that he was not a blood relative. He certainly appeared neither loud or brash when giving evidence. But perhaps that is how he appeared to Mrs Tuppen in different circumstances. He did at times call unannounced. I do not conclude that Mrs Tuppen could not have reached the opinions she expressed. But, having regard to her personality and manner as it was many times described, for her to confide her opinion in the way she did to a person who was outside the family seems to me to show a breakdown in her ability to make judgment as to what was appropriate conduct.

267 Mr Allan deposed, by paragraph 17 of his affidavit sworn 22 April 1998, that in mid July 1991 Mrs Tuppen told him that Digby Norris had told her that he was upset that he had received nothing under his uncle's will and had asked her for the dinner set, had said that he was in financial trouble with his business, and that Robert Tuppen was a crook. I accept his evidence that Mrs Tuppen said these things.

268 Digby Norris denied saying to Mrs Tuppen the things she attributed to him. It was not the fact, he said, that he was in financial trouble. I think it is likely that he did say things which could have conveyed to Mrs Tuppen the impression that he was asking for the tea set. I think it is likely also that, probably in response to something she said about Robert Tuppen in connection with her financial affairs, he ventured a comment about Mr Tuppen that could just possibly have conveyed to her the impression that he was saying Mr Tuppen was a crook. I think it highly unlikely that he said anything that could have given the impression that he was in financial trouble with his business.

269 Two points should be made: First, as with the comments made by Mrs Tuppen to Mrs Carrig about James Allan, the fact that Mrs Tuppen spoke to James Allan about Digby Norris in the way she did seems to me to show a distinct departure from the conduct which was to have been expected of her. Second, the second and third remarks attributed by Mrs Tuppen to Digby Norris - assuming that they reflected her true state of mind - involved in each case a very strained interpretation of something said by Digby Norris.

270 Much of what Mr Allan deposed in his affidavit was not in dispute. So, Mr Allan's connection with Mrs Tuppen and her husband was of long standing. In the latter years of Charles Tuppen's life Mr Allan arranged for necessary maintenance work on their home. He continued to do this for a time after Mr Tuppen's death. In 1990, his uncle told him that Robert Tuppen would be looking after the financial affairs of he and his wife. Both Charles Tuppen and his wife often spoke of Robert Tuppen in glowing terms.

271 Turning to his aunt's manner and behaviour in the last years of her life, Mr Allan deposed that after her husband's death she became increasingly frail and began to repeat herself continually. During 1991, there were occasions when carers would ring to cancel - on grounds of ill health - arrangements that had been made for her to see his mother or his family. She showed no apparent concern for Mr Allan's mother - who was ill and in a nursing home.

272 She did not receive him well when he spoke to her at the Board hearing in late 1991. She told the Board that she did not wish him to have anything to do with her care or well being. It had not been proposed that he have a formal role in relation to her affairs. He knew of no reason why she should take that attitude towards him.

273 At Christmas time 1992 he arranged for his mother and aunt to meet at his home. He thought that, in light of his mother's health, this was likely to be their last Christmas together. On Christmas Day a carer rang to say that Mrs Tuppen was not well and would be unable to attend. He called at his aunt's home that day. He begged her to go and visit his mother. She appeared nonplussed, and offered no explanation for her behaviour.

274 It is clear that Mr Allan did not, for whatever reason, see Mrs Tuppen often in 1990 and 1991 - his estimate was once in two months. But that does not mean that his observations about her presentation were inaccurate. In fact I consider that they were accurate - both as to her failing memory, and as to her apparent confusion on Christmas Day 1992.

275 I am further satisfied that Mrs Tuppen for no discernible reason did begin to distance herself from James Allan before the Board proceeding in late 1991; and that without any apparent justification she took and expressed a set against him at that hearing. Yet by the 1992 codicil to the 1991 will she increased his share of residue - only to decrease his bequest dramatically by her will of September 1992.

276 Mr Kenneth Allan's evidence is contained in his amended affidavit re-sworn on 14 May 1999. It is unnecessary to detail all of the matters there set out. I note these matters: First, Mr Allan's contact with his aunt was infrequent. Second, he noticed her memory impairment for the first time when he visited her just before Christmas 1991. Third, Mr Allan had no contact with his aunt at the Board hearing in late 1991. Nor did she mention it (or Robert Tuppen) when he visited her just before Christmas 1991. Fourth, he confirmed James Allan's account of Mrs Tuppen's presentation at Christmas 1992. Fifth, some time in 1993 his aunt rang to say that she was gifting him a particular painting. Sixth, at Christmas 1993 his aunt was very vague, and initiated no conversation. Seventh, at Christmas 1994 he was told by a carer that his aunt knew who he was, but did not want to see him; the situation was different at Christmas 1995. Eighth, he saw his aunt twice in 1995. She could recall him (and family members) once prompted.

277 The witness did not have a close connection with his aunt. Over the years it seems to have been a lesser connection than that had by James Allan. The evidence does not show the witness to have played any part in the 1991 Board proceeding. His prospective entitlement under his aunt's will was always the same as that of James Allan. It increased by the April 1992 codicil; but decreased significantly by the September 1992 will. Only on one occasion did his aunt say - via a carer - that she did not wish to see him. That was at Christmas 1994. Contrast the situation at Christmas 1995.

Dr Pick

278 Dr Edward Pick was Mrs Tuppen's general practitioner for more than 30 years up to late 1991. He himself has been in practice for more than 40 years. Many of his patients are elderly and he sees many cases of dementia.

279 By his affidavit sworn 18 December 1997 Dr Pick deposed that Mrs Tuppen showed increasing signs of senile dementia after the death of her husband in December 1990. This was evidenced by confusion and defective memory, especially for recent events. He opined that by the end of 1991 her memory and perception of things affecting her life and situation had substantially failed.

280 By his report to the Board dated 25 November 1991 Dr Pick took things somewhat further. He noted that Mrs Tuppen had little or no realisation of her forgetfulness, confusion and defective memory, and lacked insight into their meaning. She had become very passive. He referred to repetition of conversation topics; and to Mrs Tuppen having told him how she had enjoyed seeing him in America recently - America being a country he had never visited. He opined that her judgment was impaired, that she did not have any insight into the recent change in the power of attorney position. He opined further that patients with dementia can be easily led and be subject to manipulation.

281 In viva voce evidence the doctor said that in respect of the fall on 3 November 1991 he had taken over Mrs Tuppen's management when she was transferred to Wellington Hospital from the Box Hill Hospital. No fracture of the right arm was noted either at Box Hill or at Wellington. She having improved, it was proposed to discharge her home on 11 November 1991. But that plan was changed at the last minute when Mrs Carrig told the doctor that she did not consider it was wise for Mrs Tuppen to be at home alone after 5.00 p.m.

282 The transfer to Camberlea, he said, was not undertaken after discussion with Robert Tuppen. In determining that Mrs Tuppen should be transferred to Camberlea, said the doctor, the motivating consideration was the patient's need for 24 hour care, not that she needed specialist nursing care. Indeed, he had noted on 21 October 1991 - that is, before the fall which led to her hospitalisation - that by reason of dementing illness Mrs Tuppen needed 24 hour care.

283 The witness was taken in cross-examination to entries on the cards of his practice. He had ceased his involvement with the plaintiff at about the time of her removal from Camberlea on 13 November 1991. So I think that none of the entries to which he was taken were made by him. Be that as it may, the entry for 28 November 1991 suggested that Mrs Tuppen imperfectly performed a memory test. The entry for 18 January 1992 noted a complaint by Mrs Tuppen that her "money flow had been stopped". She was then confused, believing her husband to be alive. The entry for 27 January 1992 noted commencement of treatment for depression with Prothiaden. A month later she was noted as being less depressed, and Prothiaden was ceased. A few days later she was depressed again, believed her husband was alive, and Prothiaden was re-commenced. Treatment with Prothiaden continued as at mid March.

284 Concerning Mrs Tuppen's alcohol use, Dr Pick told me that in the lifetime of Charles Tuppen he had been asked by Mrs Carrig to try to curb Mrs Tuppen's drinking habits. He had given her advice. He thought it was not well received. Alcohol abuse was not brought to his attention after Charles Tuppen's death. At the time of the Board hearing in December 1991 he thought alcohol abuse was a factor, but not the more significant factor, in Mrs Tuppen's condition.

285 It was clear from Dr Pick's evidence that he had a close professional relationship with Mrs Tuppen. I consider that he was able to offer a most useful opinion concerning the lady's mental state. He did not perform formal psychiatric testing but he knew his patient. His assessment of her mental deficits was quite bleak. It was scarcely consistent with retention of decision-making capacity.

286 I should allude to the two other aspects of the doctor's evidence. First, it gave no support to the proposition that Mrs Tuppen re-fractured her right humerus in the fall of early November 1991. Second, it was opposed to the suggestion that Robert Tuppen engineered his aunt's admission to Camberlea. In fact, it implicated Mrs Carrig in the decision, a role which was quite at odds with Mrs Carrig's evidence. The doctor had no reason to mislead me about this matter. Moreover, there were notes which supported his recollection. I accept the doctor's evidence insofar as it absolved Robert Tuppen from involvement in the decision to move his aunt to Camberlea. For reasons previously described I make no finding about Mrs Carrig's role in the matter.

Drs Wood and Tofler

287 Dr Graeme Wood is a highly qualified psychiatrist who specialises in the treatment of geriatric patients. Mrs Tuppen was referred to him in November 1991 by Lukaitis and Co for assessment of her competency to withdraw and grant power of attorney. She was referred back to him in August 1992 by her general practitioner for specialist care. What he treated was dementia, productive of inability to cope with the uncertainties of life; uncertainties mainly due to the patient's inability to remember much of what had gone on in the preceding five minutes, or even a lesser period. Mrs Tuppen remained a patient until her death. The doctor assessed her mental state from time to time. He did not make a formal assessment of testamentary capacity.

288 The doctor formed the opinion in November 1991 that Mrs Tuppen suffered a dementia of mild to moderate degree. He did not agree, in cross-examination, that the dementia was mild. Her new learning deficit, for example, meant that her ability to safely monitor her environment was almost non-existent.

289 Findings made in November 1991 contraindicated the presence of delirium. The lady's presentation did not suggest that she then was in great pain. Her presentation was not consistent with her then suffering from an undiagnosed and untreated fracture of the humerus with displacement into the axilla. The doctor agreed that pain short of great pain could have adversely influenced Mrs Tuppen's test performance to some extent. But it seems to me to flow from the doctor's observations on later occasions, and from the results of testing on 8 February 1993, that the test results on 26 November 1991 were not adversely affected by pain - whether extreme, moderate or slight.

290 Particular areas of deficit noted on 26 November 1991 were in new verbal learning - which was very poor; and in impairment of judgment and decision-making skills. The doctor considered that Mrs Tuppen had sound enough mind to revoke a power of attorney - this involving a single and uncomplicated decision; but doubted her ability to competently appoint another attorney - that involving an awareness and evaluation of choices.

291 When Mrs Tuppen was seen by Dr Wood on 12 August 1992, a history was partly provided by the patient, and partly by the carer who attended with her. That history had delusional elements to it (principally involving a belief that Mrs Tuppen's husband was alive), as well as reported anxiety, confusion, frustration, poor memory and insomnia. It was reported that a brother had died in July 1992, and that there was ongoing conflict with a nephew (presumably Robert Tuppen). The patient had been taking Prothiaden, an anti-depressant, until two days before the interview.

292 The doctor concluded that, dementia apart, his patient was then suffering from a delirium state that he thought had been grumbling along for some weeks, if not months. He attributed it to ingestion of Prothiaden, the emotional effect of the brother's death, and the reported ongoing conflict with a nephew.

293 On 18 August 1992 the doctor interviewed Mrs Tuppen again. She was a lot better. He prescribed Xanax for insomnia, which had been one feature of her presentation on 18 August 1992, and which is characteristic of dementia. He then considered that the main cause of the delirium may have been use of Prothiaden.

294 On 4 September 1992 Mrs Tuppen was seen again. The history given (partly by the patient and partly the carer with her) was that she was sleeping better, and was re-making her will next week. The doctor noted that she was not depressed (in a clinical sense), but was obviously insecure. He noted also that she had taken a paranoid set against her general practitioner, Dr Connos. She felt that in some way he was out to get her. Such paranoid sets, Dr Wood told me, are a feature of dementia.

295 On 9 September 1992 the patient was no more depressed. She was sleeping reasonably. She complained of not hearing Dr Connos. The doctor took this last matter further. He was told - it came from the carer and Mrs Tuppen - that Mrs Tuppen did not want to hear Dr Connos. She was feeling threatened by what Dr Connos was saying to her.

296 If the history which led to the diagnosis of paranoid sets was given by Mrs Tuppen, or was given by the carer but heard and adopted by Mrs Tuppen, the diagnosis is receivable.

297 If the history was given by the carer and was heard by Mrs Tuppen, but was neither adopted nor disclaimed by her, then her conduct might well indicate confusion; but the diagnosis would not be receivable.

298 If, again, the carer gave the history, but Mrs Tuppen did not hear it, then the doctor's conclusions would have been founded on the hearsay evidence of a third person. If that was the situation, the diagnosis would not be receivable; nor would Mrs Tuppen's failure to disclaim the history be evidence of her possible confusion.

299 Having closely considered the evidence, I conclude that the relevant history was probably given by Mrs Tuppen on 4 September and 9 September 1992; but certainly not on 5 November 1992 (as to the last of which, see below).

300 On 30 September 1992 the doctor was told that another general practitioner in the same group was caring for his patient. Her sleep was again disturbed (this was attributed to the presence of a new puppy). She had made a new will. The doctor noted this last matter in a way designed to draw his attention to something which was "a bit unusual". It surprised him.

301 According to Dr Wood's report dated 7 October 1992, "the rather paranoid flavour to many of her conversation themes has ... ceased". This observation seems unlikely to have depended only upon the history which I discussed a few moments ago.

302 The patient was seen again on 5 November 1992. There was a history of increased insomnia. The prescribed dosage of Xanax was increased a little. Several sources of frustration were identified. The carer who attended the doctor with Mrs Tuppen reported that she was fabricating events, playing the carers off against each other. The doctor considered that this revealed an increasing paranoid set, totally consistent with dementia. The patient's mental state was not formally re-tested, but it is certain that (as on other occasions) the doctor noted her presentation and the substance of what she said.

303 On 8 February 1993 Mrs Tuppen attended again. Re-testing confirmed mild to moderate dementia, which had not progressed very rapidly, but was certainly progressing. Dr Wood reported at the time in a manner intended to convey "an impression of progression". He summarised aspects of Mrs Tuppen's mental state as disclosed by his testing and observations over the period since November 1991. Her verbal and non-verbal learning ability was (and had been in November 1991) virtually non-existent. Visuo-spatial task performance was very poor. Verbal fluency and ability to undertake abstraction tasks had markedly declined. The patient's ability to make judgments and understand what was going on around her was very impaired. The doctor commented that she was extremely susceptible to suggestions and was really unable to formulate her own opinions. She needed 24 hour care - not, as the patient apparently wanted herself, a reduction in hours of care. The doctor further considered it "very apparent" that Mrs Tuppen was no longer competent to sign legal documents or any other documents such as a cheque.

304 Counsel for the plaintiffs pressed Dr Wood to agree, and he did, that his report of 24 February 1993 was written after he had been informed that Mrs Tuppen had requested a reduction in the number of hours that the carers were attending her. Such a request, I consider, shows that Mrs Tuppen then had an inability to comprehend her own reduced condition.

305 Dr Wood made the point that, despite her dementia, Mrs Tuppen presented well socially when he first saw her (and, by implication, on most occasions thereafter until 8 February 1993). He said that she could "still socially cover". I think that explains some of the apparent contradictions in the evidence. It seems likely to me that Mrs Tuppen's presentation was such as to conceal the extent of her true disability. That presentation was partly verbal; and partly in her dressing and grooming. The latter was in the hands of the carers, at least substantially.

306 The witness agreed that a person with mild to moderate dementia can understand the nature of his or her assets; can be capable of knowing who people are within the family; of having likes and dislikes within that group; and he thought, to make decisions as to who he or she might like to bequeath those assets. But, he said, the problems arises in making decisions who to favour in the group. Memory aberrations of more than one type may occur. Development of a paranoid set may intrude upon decision-making.

307 Dr Wood, as he made clear, and as I have already noted, did not formally assess Mrs Tuppen's testamentary capacity. There were other questions he would have asked had he undertaken that task. But he did opine, based upon conclusions which he reached after interviews with the lady in a clinical setting, that he rather doubted her ability to make the critical judgment "as to who should be beneficiary of the will".

308 Whilst keeping in mind the criticism made of that opinion by counsel for the plaintiffs, I consider that it should be given considerable weight. I was much impressed by the witness. I formed a very favourable view of his objectivity, the accuracy of his observations and the reliability of his clinical conclusions. One can accept, as I do, that will-making is a specific task calling for the possession of only certain mental resources. But I do not accept that, in determining whether or not such resources are possessed, one can or should overlook assessments of mental function only because they do not focus solely upon the presence or absence of those resources.

309 Dr David Tofler is a consultant psychiatrist who specialises in treatment of the aged. In November 1991 he was engaged by Mr Redfern to interview Mrs Tuppen and provide a report to the Board. He interviewed her for about an hour on one occasion. He also spoke to a carer, Robert Tuppen, Ms Gunn and (it seems) Dr Pick, and reviewed several medical reports, before preparing his report.

310 The doctor concluded that Mrs Tuppen had evidence of a significant dementia, probably of the Alzheimer's type. It particularly affected her short and long term memory. Marked personality and behavioural changes had so far not occurred. His assessment was based upon the entirety of his observations, not simply the results achieved by Mrs Tuppen on a Folstein Mini Mental State test. Those results alone indicated, but did not prove, the presence of a mild dementia.

311 Dr Tofler considered that Mrs Tuppen was competent to revoke power of attorney and appoint another attorney under power; but that it was unlikely that she could evaluate and make appropriate judgments upon more complex matters - such as the day to day management of her financial affairs. Provision of financial information would, however, "make her feel she knew what her present situation" was. She would know what the position was "at her level".

312 The doctor was extensively cross-examined. It was much suggested that, at the time of the interview, Mrs Tuppen was either in considerable pain from an undiagnosed displaced fracture of the humerus, or else was affected by the ingestion of drugs to reduce the pain from such injury - with the effect in either case that her performance on formal and informal testing was impaired and thus unreliable. As I have earlier said, I do not accept that the patient was in considerable pain or affected by drug use as postulated by counsel. It is not consistent with Mrs Tuppen's presentation to Dr Tofler on 26 November 1991 (in which I include the history which she gave), just as it is not consistent with her presentation to Dr Wood that same day. The findings made by the two doctors broadly coincided. The observations made at Mrs Tuppen's later consultations with Dr Wood, and on later re-testing by that doctor, were compatible with the findings made by the two doctors on 26 November 1991.

313 Dr Tofler gave an account of variant histories provided to him concerning Mrs Tuppen's past and present use of alcohol. There is an evidentiary problem with the history. I accept the doctor's evidence that, on the day, Mrs Tuppen did not display features of over-use of alcohol.

314 As sometimes happens, in cross-examination detail of Mrs Tuppen's mental deficits emerged beyond that which the doctor had set out in his report. The lady could not remember, for example, the school she had attended, her age when she married, her age when her parents died or when she had moved into her then residence. Her account of overseas trips in the past was brief in the extreme. So it was not only short term memory which was deficient.

315 Again, Mrs Tuppen provided the doctor with a family tree. It was incomplete and in part erroneous. Moreover, her description of her family tree on that day was, the doctor considered, vague.

316 Testing of short term memory revealed that Mrs Tuppen was unable to recall any of three words that she was specifically asked to remember. She was not able to apply sufficient attention and concentration to begin to spell a word backwards. She left out part of a small sentence which she was asked to repeat. She was asked to fold a paper into three and did not do it as she had been asked. She did not copy a design accurately. She revealed concrete thinking when asked what a proverb meant. She could only name seven fruit. Normally, even an old person would be able to name at least ten. She could not link up letters and numbers in a sequence.

317 The doctor took a history of Mrs Tuppen's complaint concerning the Phantom incident. It went this way:

"The issue is with regard to the Wizard of Oz, to take Denise. 'Thank you very much for taking us'. 'You are paying'."

318 The theme was familiar enough. The detail, at least in part, was erroneous. The history disclosed Mrs Tuppen's facility to fabricate fact; a facility not immediately apparent to an unknowing observer.

319 The doctor agreed that, it being Mrs Tuppen's birthday, and his consultation being in the later afternoon, her performance may have been affected by fatigue. Again, however, it is the fact that her performance was generally compatible with her performance on other testing by other doctors on other occasions.

320 Dr Tofler did not purport to have made an assessment of Mrs Tuppen's testamentary capacity on 26 November 1991. Had that been the task, he would have asked additional questions. By paragraph 8 of his affidavit sworn 23 September 1998 he did opine that it was "very questionable" whether Mrs Tuppen had the competence for will-making when he interviewed her. In cross-examination he did not accede to the proposition that he would have had no doubt that she had testamentary capacity in 1991. But he added that he really could not say.

321 As with the case with Dr Wood, I was impressed by the objectivity and reliability of Dr Tofler's evidence. I do not ignore the fact that he only met Mrs Tuppen once; nor that she may have been tired at the time. Nor again do I ignore the fact that it was not Dr Tofler's task to assess testamentary capacity. On the other hand, the deficits which he elicited were considerable. They extended beyond short term memory impairment. They disclosed an imperfect knowledge of family (at least on that day), problems with attention and concentration, and a tendency to fabricate facts. The diagnosis which he made is not itself in doubt. His evidence is not to be disregarded in the assessment of testamentary capacity. Its general impact is adverse to, but not decisive against, the plaintiffs.

Report of Dr Honigman and Mr Keil

322 Mrs Tuppen's gave reasons for revoking Robert Tuppen's power of attorney. They were: possible abuse of power - the Phantom incident was cited; want of disclosure by him of the extent of her estate; and his claim that there was no money to fund some of her wishes - contrary to the assertion of other family members.

323 A Folstein test was performed. The score (19/30) was hardly different to that obtained by Dr Wood in November 1991. The main problems were in the area of short term memory loss. It was hypothesised that the test results may have been misleadingly poor because of Mrs Tuppen's poor hearing. In view of other testing where that risk was excluded the hypothesis can, I consider, be excluded.

324 Dr Honigman considered that Mrs Tuppen understood the nature and content of her decision to revoke Robert Tuppen's power of attorney. Her only expressed dissatisfaction was with him. There appeared to be no evidence of paranoid ideation.

325 Mrs Tuppen claimed that the decision to revoke the power of attorney was her idea. Digby Norris merely approved. The doctor could not say whether Mrs Tuppen had been unduly influenced or was suggestible.

326 The report does not, I think, carry things very far.

327 In some respects the history provided was inaccurate. Robert Tuppen did not claim that there was no money to fund some of his aunt's wishes. Digby Norris suggested that change of attorney under power would solve his aunt's expressed concerns. I do not doubt the consensus of the Norris nephews that there was a need that an independent attorney be appointed was conveyed to her; and that she accepted the advice given.

328 In other respects the history was incomplete. It failed, for example, to disclose events which suggested confusion and delusion.

329 There was evidence of deficit on the screening test. There is nothing to suggest that examination beyond the screening test was carried out. No formal diagnosis was made.

Legal principles

330 To have testamentary capacity a testatrix must

1. be aware of and appreciate the significance of the act which she is embarking upon;

2. be aware in general terms of character, extent, and value of the estate with which she is dealing;

3. be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims;

4. have the ability to evaluate and discriminate between the respective strengths of those claims.

331 The burden of establishing the competency of the testatrix lies upon the propounder. The question is to be determined upon all the evidence. The burden is the civil standard, notwithstanding references by courts to vigilant examination of the whole of the evidence in the event of doubt.

332 Although the ultimate burden of establishing competency always remains upon the propounder, the evidentiary onus may shift. It will do so if the propounder establishes a prima facie case of competency. The propounder may do so by proving due execution of a will (or codicil) rational on its face.

333 If a prima facie case of competency is established an evidentiary onus falls on the caveator to adduce evidence raising doubts as to competency. If such evidence is addressed, the question of competency is to be considered, as I have said, on the evidence as a whole - the propounder bearing the burden of proof.

334 The awareness of those who might naturally be thought to have claims upon the bounty of a testatrix, the basis for and nature of such a claim, and the ability to evaluate or discriminate between the respective strengths of claims may be destroyed in the circumstances described long ago by Cockburn CJ in Banks v. Goodfellow (1870) 5 QB 549 at 565.

335 Expert (medical) evidence may be important in determining competency. But it does not decide the issue, any more than does the mere fact of the age of the testatrix when the will was made, or the opinions of the attesting witnesses that the testatrix was competent.

336 The presence of dementia does not necessarily tell against a testatrix having competency. Dementia may manifest itself in imperfect recollection, yet leave intact the awareness and ability to which I have referred.

337 Delusion does not necessarily tell against a testatrix having competency. The delusion may not have had any influence on the dispositions made. But that is not to say that a delusion which cannot be shown to have directly affected a particular disposition may not be evidence of the existence and extent of a mental disorder which does destroy competency.

338 In determining a challenge to competency, relevant evidence may be provided by the exclusion of persons naturally having a claim upon the testatrix. So also, provision of a will or codicil rational on its face may appear in quite another light when all the evidence is examined. Whilst it is the privilege of a testatrix to dispose of her property in an idiosyncratic way, if the testatrix is at the time of making testamentary dispositions affected by a mental disorder, the apparent irrationality of particular dispositions could be some evidence of "absence of capacity, not merely its prejudiced exercise", to quote Santow J in Easter v. Griffith (Supreme Court of NSW, judgment 17 June 1994, unreported).

339 The making of an administration order does not prevent the represented person from making a will. Nor does it establish want of competency. But, having regard to the definition of "disability" in the Act, the basis upon which the application was evidently pursued, and the jurisdiction of the Board to make orders, I consider that the parties were right to adopt the common ground that the making and continuance of orders was some evidence of Mrs Tuppen's mental state at the time of the initial hearing and at the time of the reviews.

Analysis

340 The will and codicils were rational on their face, and were apparently duly executed and attested. The plaintiffs thereby established a prima facie case of competency.

341 The defendants plainly adduced evidence raising doubt as to the competency. The relevant evidence emerged partly in cross-examination of the plaintiffs and of witnesses both lay and medical whom they called; partly from the lay and medical evidence which they, the defendants, adduced; and partly from consideration of testamentary documents in the light of the other evidence.

342 On the whole of the evidence the plaintiffs failed to establish that the testatrix possessed testamentary capacity when the will and codicils were both prepared and executed. In my opinion they clearly failed to do so.

343 The plaintiffs made out, I consider, the first pre-requisite of competency. The evidence was not clear-cut, but I consider that they made out the second pre-requisite. They did not make out at least the second aspect of the third pre-requisite. They did not make out the fourth pre-requisite.

344 In explaining my conclusions I will focus principally on the areas in which the plaintiffs failed to make out their case. I will not repeat, in details, the many findings I have made in outlining and discussing the evidence. That is not to say, and I do not say, that some of them have not assisted the conclusions I have reached.

345 Nor will I repeat all of the conclusions I have already expressed about the truthfulness, reliability and usefulness of the evidence of individual witnesses.

346 My conclusion depends upon evidence of Mrs Tuppen's mental condition and behaviour over a period of years, commencing in 1991. Whilst the date of execution of the documents was in each instance a critical point in time, it would make no sense to conclude that, if Mrs Tuppen lacked testamentary capacity over a number of years, she suddenly regained that capacity on three discrete occasions years apart.

347 A necessary part of my conclusions is a finding that, at least from mid 1991, the testatrix suffered from dementia, probably of the Alzheimer's type, at a clinical level. In the end, neither side contended to the contrary. The real argument was as to the severity of the condition; and whether it impaired insight, judgment and decision-making skills - it being common ground on the evidence that a person suffering from dementia is not necessarily deprived of those abilities.

348 When assessed by Drs Wood and Tofler in late 1991 Mrs Tuppen exhibited, though labels do not reveal the detail of the matter, a "mild to moderate dementia", or "significant" dementia. Dr Wood noted particular deficits in new verbal learning, and in judgment and decision-making skills. Dr Tofler noted memory loss both short and long term, deficiencies in attention and concentration, and impairment of abstract thinking. Those were not the entirety of the problems observed by the two specialists.

349 Dr Pick, the long time general practitioner, was of opinion that, by late 1991, his patient was exhibiting senile dementia such that her memory and perception of things affecting her life and situation had substantially failed. She had little or no realisation of her forgetfulness, confusion and defective memory, and lacked insight into their meaning. It was his opinion that she had impaired judgment.

350 Coming forward to the period August to September 1992 Dr Wood's evidence shows that the patient had suffered a delirium complicating her dementia. The delirium was observed in mid August. It resolved. There were attendances on Dr Wood on 7, 9 and 30 September. On the first two of those occasions the doctor saw evidence of paranoid sets. But by 30 September, as reported on 7 October, "the rather paranoid flavour to many of her conversation themes (had) ceased".

351 The doctor noted with surprise, as "a bit unusual", the circumstance reported on 30 September that Mrs Tuppen executed a new will. The doctor was not passing verdict on Mrs Tuppen's testamentary capacity at the time. But I think it likely that he then turned his mind to a possible problem.

352 Dr Wood re-examined his patient on 8 February 1993. His diagnosis was unchanged. The dementia was certainly progressing, but not very rapidly. Verbal and non-verbal learning ability, as in November 1991, was virtually non-existent. Ability to think abstractly had declined. Mrs Tuppen's ability to make judgments and understand what was going on around her was very impaired. Dr Wood commented that she was extremely susceptible to suggestions and was really unable to formulate her own opinions.

353 I have said earlier, and I repeat, that I found the evidence of Dr Wood, and of doctors Tofler and Pick, to be objective and reliable. It was also well-informed, and helpful to my task, notwithstanding that those doctors did not undertake a discrete function of assessing Mrs Tuppen's testamentary capacity.

354 The course of dementia, the evidence shows, is one of deterioration, though it is often quite slow in the case of elderly sufferers. In Mrs Tuppen's case the evidence of Dr Wood, which I accept, shows that between November 1991 and February 1993 there was some progression. It is not readily conceivable that her mental state was any better at the times the codicils were executed than it was when the will now propounded was executed. I say that because I conclude, on the evidence, that Mrs Tuppen's dementia was not complicated by any delirium at the time of execution of the will; that is, her deficits were not then increased by a concurrent illness.

355 My acceptance of the evidence of Doctors Wood, Tofler and Pick provides a starting point for consideration whether the dementia deprived Mrs Tuppen of testamentary capacity. Whilst Drs Wood and Tofler, not having discretely examined Mrs Tuppen in order to assess testamentary capacity, were understandably reluctant to express firm opinions upon that matter, their evidence, I consider, tells pretty strongly against the presence, at relevant times, of the third and fourth pre-requisites of competency. So also does the evidence of Dr Pick - who, as I said earlier, had the advantage of long connection with his patient.

356 Pausing for a moment, it is I think of some significance when considering the overall impact of the medical evidence that Drs Pick and Wood, called by the defendants, are doctors who had close connection with Mrs Tuppen; whereas, Dr Bennie apart, the plaintiffs called doctors who either interviewed Mrs Tuppen only at times when she executed the critical documents, or did not interview her at all - that is, in the case of Professor Chiu. Moreover, as I have pointed out, there were contradictory features to the evidence of Dr Bennie, and for other reasons his evidence did not positively assist the plaintiffs; the evidence of Drs McIntosh and Murphy was for different reasons compromised; and the evidence of Professor Chiu depended in significant part upon the reliability of the reports of Drs McIntosh and Murphy.

357 Consideration of the lay evidence takes place against the background of my conclusion that the testatrix suffered at relevant times from a dementia with characteristics identified by Drs Wood, Tofler and Pick. The lay evidence, obviously, did not speak with one voice.

358 Senior counsel for the plaintiffs much relied upon the lay evidence which he called - of the plaintiffs, the carers, Mrs Dorum, Mr Lukaitis, Mr Zilinskas and Ms Gardiner. He submitted that it was his clients who had called witnesses involved in day to day, or at least regular, contact with Mrs Tuppen in the years between 1991 and 1996. He contrasted that with the lay evidence of and called by the defendants - which for the most part did not travel beyond the end of 1991. He pointed out, also, that the evidence of some of the witnesses called by the plaintiffs was subjected to no cross-examination, or else very little. This was so in the cases of Mrs Murphy, Mrs Greenhalgh, Mrs Dorum and Mr Scott. His further submission was that the evidence of the plaintiffs, and of the lay witnesses they called, supported a conclusion that Mrs Tuppen had testamentary capacity at relevant times.

359 I deal first with the evidence of Mrs Murphy, Mrs Greenhalgh, Mrs Dorum and Mr Scott.

360 The evidence of the particular witnesses contained these threads: Mrs Tuppen was a conversationalist. Mainly she spoke of times past. There, her memory appeared sound. She had impairment of short-term memory. But it was not blanket impairment. She was opposed to Robert Tuppen. He wanted her money. She feared him. He was taking her back to the court. His aim was to get her out of her home and into a nursing home. She liked Alison Inchley. But Mrs Inchley could not be trusted any longer. She would relay information to her brother. Mrs Tuppen spoke well of Digby Norris. She appeared to understand financial information conveyed to her. On one occasion she made comments indicating her approval of the contents of the 1992 will and a later codicil.

361 The threads of the evidence which I have first identified should not be considered in a vacuum; or uncritically. That is not to say - and I make it clear I am not saying - that there is any suggestion that the witnesses were not doing their best to give me an accurate account of their observations. But it must be remembered that, unequivocally, Mrs Tuppen was suffering from a degree of dementia in the period that the observations were made. Nonetheless, she retained social skills.

362 Against that background, it is very clear that at least from 1991 she said many things that were plainly wrong. I have referred to them already in these reasons. But her social skills were evidently such that a particular error would not have been apparent to a listener who did not know the true situation.

363 Again, paranoid sets indisputably may be a feature of dementia. I am quite satisfied, as these reasons elsewhere reveal, that Mrs Tuppen exhibited such sets in and after 1991. The witnesses whose evidence is now under consideration gave evidence which might well be thought to provide further instances of that tendency. I refer to some of the things reportedly said by Mrs Tuppen about Robert Tuppen and Alison Inchley.

364 Further again, a consequence of dementia may be impairment of the judgmental capacity necessary for decision-making. It could not simply be said, because Mrs Tuppen said that she approved the contents of her will, that she possessed judgmental capacity. The comment could equally well be made by a person with or without such capacity.

365 When assessing Mr Scott's evidence that Mrs Tuppen appeared to understand financial information conveyed to her, I consider it is necessary to keep in mind the evidence of Dr Tofler that whilst it was his opinion in late 1991 that Mrs Tuppen would not have been able to manage her assets, he thought this should not prevent her being provided with useful information which would make her feel she knew what the situation was; that she had the ability to understand it "at her level".

366 Turning, next, to the evidence of Richard and Digby Norris, I have already concluded that the former did not have close contact with his aunt, but that

his observations of her presentation aid the plaintiffs' case. As for Digby Norris,

I have concluded that he overstated his aunt's mental acuity, professed a non-understanding of facets of her behaviour which seems pretty improbable, and played upon his aunt's concerns about Robert Tuppen. I also conclude that the case of the Boyd painting shows that in September 1992 Mrs Tuppen was able to be

led. In the event, I have not considered that the evidence of Digby Norris is as advantageous to the plaintiffs as they might have hoped.

367 I have concluded that the evidence of Mr Lukaitis and of Mrs Carrig cannot be relied upon as being wholly objective. My reasons for reaching that conclusion need not be repeated. The impact of their evidence, insofar as it was favourable to the plaintiffs, is diminished.

368 Mrs Carrig, particularly, gave evidence of things said by Mrs Tuppen about Robert Tuppen and others. I have earlier accepted that in some cases the particular things were said. The fact that they were said bears an importance which I will later discuss.

369 The evidence of Mr Zilinskas was undoubtedly objective. He did not make an assessment of testamentary capacity in April 1992. He was not asked to do so. His observations at that time revealed features of Mrs Tuppen's presentation which do not assists the plaintiffs - as I have earlier pointed out. The same applies to observations then made by Ms Gardiner. Mr Zilinskas' evidence concerning his conference with Mrs Tuppen on 17 August 1993 revealed, I think, a picture of very considerable disability. Not only that, things she said to him about several beneficiaries were quite at odds with things she said about those same beneficiaries a month later to Mr Lukaitis.

370 The effect of the lay evidence of and called by the plaintiffs was, for reasons described, not as helpful to the plaintiffs' case as might have appeared on a superficial and uncritical assessment to have been the case.

371 I go to the evidence of and called by the defendants. In that body of evidence

I consider the evidence of Ms Gunn to be important. She only interviewed Mrs Tuppen once, in November 1991. I am satisfied, as I have intimated earlier,

that Mrs Tuppen was not prevented from doing her best on that occasion.

Her performance was undoubtedly poor - evidencing forgetfulness, confusion, fabrication and misrepresentation of events and delusion (that her late husband was alive). Ms Gunn did not appreciate, I think, the full extent to which events were fabricated or misrepresented by Mrs Tuppen. That was not surprising given the retention of social skills to which Dr Wood referred.

372 I have already described and expressed conclusions about the evidence of the defendants. That evidence and those conclusions do not bear repetition. A few points only should be noted. First, the evidence of Robert Tuppen shows that his aunt made a series of criticisms and attacks upon him, from mid 1991 onwards, which were at odds with circumstances of which she must at some stage have been aware. Second, the evidence of James Allan shows that Mrs Tuppen made an attack upon Digby Norris which in substantial part was unfounded, as she must at some stage have apprehended. Third, there is no evidence objectively (whether deriving from the evidence of the doctors or evidence adduced by the plaintiffs) that any of Harold Tuppen, Mrs Inchley, James or Kenneth Allan sided with Robert Tuppen in the Board proceedings. Fourth, the evidence of Mrs Inchley as to her communications with her aunt after 1991 is not readily compatible with what her aunt reportedly said about her to Mrs Murphy, Mrs Dorum and Digby Norris. Fifth, the evidence of the defendants as to Mrs Tuppen's presentation - though sparse in respect of the period after late 1991 - is compatible with earlier observations made by the witnesses, and not inconsistent with the observations made by Ms Gunn, and Drs Wood, Tofler and Pick.

373 Thus far I have referred elliptically to certain aspects of the evidence which seem to me to be of importance. The mere fact, if it was the fact, that Mrs Tuppen acted idiosyncratically in her will-making would not bespeak want of competence. However, if Mrs Tuppen acted idiosyncratically in her will-making, if she acted in aberrant fashion from one occasion to the next, if she expressed certain comments about family members and made dispositions incompatible with those comments, if she made accusations against a family member or members which had no foundation in fact, if at the time these various events took place she was suffering from dementia, it seems to me well open to conclude that here was "absence of capacity, not merely its prejudiced exercise".

374 In my opinion each of the features to which I have referred was present in Mrs Tuppen's case. Although the relevant will was not executed until September 1992, and the codicils were not executed until December 1993 and December 1995, the dementia was present from at least mid 1991, and certain of the other features that I have identified were also present from that time.

375 I will not repeat each of the accusations, allegations and complaints made by the testatrix against family members which had no foundation in fact. I have identified them in the course of my reasons. I do repeat a representative sample. In the case of Robert Tuppen there was the allegation, or concern, that he might be making free with her money - deriving from the Phantom incident (also, wrongly, described by Mrs Tuppen as the Wizard of Oz incident) where the probability is that she had forgotten something said between her and Robert Tuppen. Then there was the accusation that he had reduced her carer's hours in 1991 - when it was something she had done. There was her accusation that he wanted her in a nursing home, wanted her money. Such a thing was never said, and could not on any objective view be inferred from his telling her about the problems with Camberlea in mid 1991. There was her constantly repeated theme that he would not provide her with financial information. He did not do so, but was not asked to do (and then not by Mrs Tuppen directly) until October 1991. He did provide, before that time, such information as she requested. Again, there was the accusation that he had entered her house when she was out, for reasons unknown. As I have earlier said, if he did enter her house in such circumstances, it is inconceivable that he left without her having been told the reason why he had visited. Presumably, forgetfulness expunged what Robert Tuppen then told her. It led to an unreasoning fear which culminated in the change of locks. Further again, there was the unfounded accusation made by Mrs Tuppen concerning the plaque erected in memory of her late husband - an accusation again deriving from forgetfulness. I mention also Mrs Tuppen's assertion, made to Ms Gunn, that Robert Tuppen had ordered her out of hospital. It was not the case.

376 In the case of Alison Inchley there were the remarks made by Mrs Tuppen to Mrs Murphy, Mrs Dorum and Digby Norris. They had no factual basis. In other circumstances they might be said to reflect rational inference. But in the presence of dementia, the suspiciousness they disclosed makes paranoid ideation a more likely explanation.

377 Harold Tuppen suffered, it appears, by being Robert Tuppen's father. Although, according to Mrs Carrig, the testatrix did not hold a strong view about him, the remarks attributed to Mrs Tuppen on 10 April 1992, as with the case of Mrs Inchley, had no disclosed basis in fact. The most likely explanation, in the circumstances of this case, is paranoid ideation.

378 Although Digby Norris benefited handsomely by the 1992 will I have accepted that in mid 1991 Mrs Tuppen said things about him to James Allan which in part at least did not reflect anything said to her by Digby Norris. One thing which I am satisfied was said placed Digby Norris in an unfavourable light.

379 Let me turn to aspects of will making. I go back as far as the codicil of April 1992. About that exercise I note these features: The variant instructions concerning Harold Tuppen, culminating in his last minute exclusion from the will. The variant instructions concerning Robert Tuppen, culminating in his exclusion from the will save in respect of the Boyd painting. The increases in the shares of David and Stanley Norris, people with whom Mrs Tuppen had little contact, and whom five months later she treated in a dramatically different way. The increase in the share of James Allan - whom she told all and sundry was "not family" - which corresponded to the increase in the share of Kenneth Allan, and which left them with shares the same as that of Richard Norris. The substantial decrease, quite unexplained, in the share of Joyce Fox. The considerable decrease in the share of Alison Inchley, the only explanation lying in the fear that to speak to her was, in effect, to speak to Robert Tuppen; that she was on her brother's side and could not be trusted. I note also the fact that Mrs Tuppen's explanation for all these changes ( made to Dr Murphy) was her dissatisfaction with Robert Tuppen; yet the Allans, considered by her (it was said) to be in the Robert Tuppen faction had their shares of residue increased.

380 I come to the will of September 1992. Within a five month period after April 1992 the benefits that would accrue on Mrs Tuppen's death to Mrs Carrig were dramatically cut back. So were the prospective benefits of James and Kenneth Allan and David Norris. Nothing had occurred in the intervening months that would explain such changes. Nothing explains the differentiation then appearing between David and Stanley Norris.

381 Also in the five month period between April and September 1992 the shares in residue of Richard Norris, Stanley Norris and Mrs Inchley were sharply decreased. Richard Norris, who had played a key part in re-arranging Mrs Tuppen's financial position, found himself with a share decreased to the same size as that of his brother Stanley. Mrs Inchley's share decreased dramatically. The share of Donald Fox, later said by Mrs Tuppen to be an invalid who needed money, was sharply reduced. After declaring a wish to exclude the entire Robert Tuppen family from her will on 8 September 1992, his two children (whom Mrs Tuppen could scarcely if at all recall in August 1993) were given shares in residue. Indeed, on 14 September 1992 Mrs Tuppen initially described Robert Tuppen's son as his brother. Meanwhile, Digby Norris, about whom uncomplimentary things had been said in mid 1992, continued to benefit to larger and larger extent; whilst the Boyd painting became his in the circumstances I have described. Again, I note, the explanation for the changes provided by Mrs Tuppen to Dr Murphy was her unhappiness with Robert Tuppen.

382 I need not much discuss the execution of the codicils. I do observe that the content of Mr Zilinksas' conference with Mrs Tuppen on 17 August 1993 and matters raised by her with Mr Lukaitis a month later reveal considerable disparity in intentions as well as considerable doubt about the identity of beneficiaries on the first of those occasions. I have previously detailed these matters. When the codicil came to be executed, hardly any of the matters raised on 17 August 1993 were dealt with. It is scarcely a response to Mrs Tuppen's sharp changes in disclosed intent over this period to say that the conference on 17 August 1993 was not for the purpose of taking instructions for changes of her will.

383 In describing the very substantial and for the most part unexplained changes in Mrs Tuppen's testamentary dispositions made by the April 1992 codicil and the September 1992 will I have addressed also the instances in which, she having made comments about family members, incompatible dispositions were thereafter made.

384 The defendants did not put their case on the footing that the variations in disposition, or any of them, were to be attributed to paranoid ideation on the part of Mrs Tuppen in respect of particular persons affected by such a set. I do not decide the case on that footing. Rather, when assessing the extent of Mrs Tuppen's dementia, her repeated misconceptions and misrepresentations of events provides evidence of the extent to which there was probable intrusion upon her powers of insight, judgment and decision-making.

385 When that is linked with the medical evidence which I accept, and with the type and extent of variations that there were in testamentary disposition - many unexplained and incompatible with things said about particular beneficiaries - I consider that a very clear picture emerges. It is of a lady whose presentation in giving instructions and in saying that testamentary documents reflected her intentions masked a serious impairment of insight, judgment and decision-making ability.

386 Assuming that at relevant times Mrs Tuppen was aware of those who might reasonably be thought to have claims upon her (a considerable assumption in itself) I cannot conclude that she had awareness of the basis and nature of those claims; or that she had the ability to evaluate and discriminate between the respective strength of those claims.

387 It would have been simple to take as a starting point Mrs Tuppen's aversion to Robert Tuppen, related it to his commencing and then continuing the Board proceeding, added her affection for Digby Norris, and explain all that transpired in her testamentary dispositions as being just a consequence of those two, explicable factors. But that would have been to deal with only a fraction of the material which was adduced - material conveying, overall, a much different picture.

388 Grant of Probate of the will dated 20 September 1992 and of the codicils dated 24 December 1993 and 22 December 1995 should be refused.

Appendix 1

TUPPEN FAMILY

William Charles Tuppen

Annie (Norris) Arthur Charles Harold

(married the testatrix) (First Defendant)

Richard Digby Stanley David Robert Alison (Inchley)

(First (Second (Second Defendant) (Third Defendant)

Kenneth James

(Fourth Defendant) (Fifth Defendant)

•

Charles Tuppen

•

Harold Tuppen

•

Robert Tuppen

•

Richard Norris

•

Stanley Norris

•

Robert Redfern

•

Richard Norris

•

Digby Norris

•

Robert Redfern

•

Mavis Allan (clothing)

•

Robert Tuppen (painting)

•

Annie Norris (teapot & ornament)

•

Alison Inchley (tea set)

•

Robert Tuppen (painting)

•

Annie Norris (teapot, 2 ornaments)

•

Alison Inchley (tea set)

•

Joyce Webster (painting)

•

Annie Norris (2 teapots & ornament)

•

Alison Inchley (tea set)

•

Digby Norris (ornament)

•

Joyce Webster & Donald Fox (paintings)

•

Digna Knox (figurines & paintings)

•

Alison Reid (figurines)

•

Mavis Allan 5,000

•

Joyce Fox 2,000

•

David Fox 2,000

•

Mavis Allan 5,000

•

Joyce Webster 2,000

•

Donald Fox 2,000

•

Denise Carrig 2,500

•

Mavis Allan 5,000

•

Joyce Webster 2,000

•

Donald Fox 2,000

•

Denise Carrig 2,500

•

Kenneth Allen 10,000

•

James Allan 10,000

•

David Norris 10,000

•

Denise Carrig 20,000

•

Mavis Allan 1/3

•

Annie Norris 1/3

•

Arthur Tuppen 1/6

•

Harold Tuppen 1/6

•

Mavis Allen 1/3

•

Annie Norris 1/3

•

Arthur Tuppen 1/6

•

Harold Tuppen 1/6

•

Mavis Allan 1/3 & 1/18

•

Annie Norris 1/3 & 1/18

•

Arthur Tuppen 1/6 & 1/18

•

Donald Fox 4/30

•

Richard Norris 2/30

•

Digby Norris 4/30

•

Stanley Norris 2/30

•

David Norris 2/30

•

Robert Tuppen 4/30

•

Alison Inchley 6/30

•

Kenneth Allan 1/30

•

James Allan 1/30

•

Joyce Fox 4/30

•

Donald Fox 4/30

•

Richard Norris 2/30

•

Digby Norris 4/30

•

Stanley Norris 2/30

•

David Norris 2/30

•

Robert Tuppen 4/30

•

Alison Inchley 6/30

•

Kenneth Allan 1/30

•

James Allan 1/30

•

Joyce Fox 4/30

•

Donald Fox 4/30

•

Richard Norris 3/30

•

Digby Norris 5/30

•

Stanley Norris 3/30

•

David Norris 3/30

•

Alison Inchley 4/30

•

Kenneth Allan 2/30

•

James Allan 2/30

•

Joyce Fox 2/30

•

Denise Carrig 2/30

•

Mavis Allan 2/24

•

Annie Norris 4/24

•

Arthur Tuppen & wife 1/24

•

Digby Norris 8/24

•

Richard Norris 1/24

•

Stanley Norris 1/24

•

Alison Inchley 1/24

•

Pippa Tuppen 1/24

•

Nicholas Tuppen 1/24

•

Joyce Fox 2/24

•

Donald Fox 2/24

In case of death of Stanley Norris, Robert Tuppen, Alison Inchley before death of testator, share to go to surviving spouse, otherwise children.

Add, Richard Norris, James Allan, Kenneth Allan, David Norris.