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[2022] VSC 213
General information, not legal advice.
Supreme Court of Victoria
2022-04-29
Irving AsJ
Original judgment source is linked above.
WILL - Testamentary capacity - Test - Whether circumstances arousing suspicion - Will admitted to probate - Onus on propounder of codicil to demonstrate a prima facie case for challenging a grant of probate of Will - Codicil in favour of propounder - Elderly testator - Gardiner v Hughes (No 2) [2019] VSCA 198 - Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, applied.
1 Brenda Blanch McPhee (Deceased) died on 14 July 2018, leaving a will dated 12 September 2002 (Will) and a codicil dated 30 September 2015 (Codicil). The Will appointed the Deceased's son, Timothy Ashley (Timothy), as executor and trustee of the estate. The Codicil revoked the executor appointment clause in the Will and replaced it with a clause appointing both Timothy and the Deceased's stepdaughter, Lisa Lynch (Lisa) as executors.
2 On 2 October 2019, Lisa renounced her right and title to the probate and execution of the Will and Codicil and the administration of the estate. On 1 October 2019, Timothy authorised Perpetual Trustees Company Limited (Perpetual Trustees) to apply for a grant of representation of the Deceased's estate.
3 On 1 July 2020, Perpetual Trustees applied for a grant of probate of the Will and Codicil. On 16 November 2020, Perpetual Trustees amended its application to seek probate of the Will only, asserting that the Deceased lacked testamentary capacity at the time of executing the Codicil.
4 On 19 November 2020, the Court granted probate of the Will to Perpetual Trustees (Grant).
5 On 26 March 2021, Lisa filed a summons seeking that the Grant be revoked on grounds that the Deceased also left a later valid testamentary document, the Codicil. Lisa's grounds for seeking revocation are that the Deceased had testamentary capacity at the time of executing the Codicil. While Lisa seeks revocation of the Grant, she supports admission to probate of the Will and Codicil.
6 This ruling addresses two applications before the Court. The first application concerns whether Lisa has demonstrated a prima facie case for challenging the Grant of probate of the Will. The parties submit that if Lisa has a prima facie case, I should determine whether Perpetual Trustees has demonstrated a prima facie case for objecting to the admission of the Codicil to probate.
7 The second application concerns a summons filed by Perpetual Trustees on 10 March 2022, after the hearing of the first application, seeking leave to adduce fresh evidence.
8 For the reasons that follow, I have decided that Lisa has not demonstrated a prima facie case for challenging the Grant. If I am wrong on that, then I would find that Perpetual Trustees have demonstrated a prima facie case for objecting to the admission of the Codicil to probate.
9 I will dismiss Perpetual Trustees' application seeking leave to adduce fresh evidence.
10 At the outset, I note that the Deceased's medical history contains voluminous medical documents with notations of varying degrees of legibility which has made it difficult to precisely identify some dates. This is further complicated by:
(a) an incorrect amendment to the Austin Health medical records, which sought to change the date Deceased underwent a mini mental state examination (MMSE) from 21 August 2015 to 21 August 2016; and
(b) the expression of time in some documents in the American format (month - day - year) rather than Australian format (day - month- year).
11 Where possible, dates referred to below have been reconciled from source documents exhibited to the affidavits filed in the proceeding.
12 In these circumstances, it is useful to briefly set out some critical dates from the Deceased's medical history.
13 On 21 August 2015, the Deceased was admitted to the Austin Health - Emergency Department following a fall.[1] Hospital staff raised concerns about the Deceased's possible cognitive impairment. Dr de Rooy conducted a MMSE of the Deceased, who scored 14/30 of the MMSE. The date of this MMSE was later wrongly changed to 21 August 2016.
14 By letter dated 20 September 2015, the Deceased's general practitioner, Dr Al-Zaini, referred the Deceased to Austin Health for formal assessment.[2]
15 On 21 September 2015, Dr Bergin of Austin Health conducted a MMSE on the Deceased, in which she scored 14/30, with the MMSE report printed on 22 September 2015.[3]
16 On 23 September 2015, the Deceased was discharged from Austin Health and was referred to the Aged Care Assessment Service (ACAS). On 24 September 2015, ACAS arranged for a geriatrician to investigate and diagnosis the Deceased's cognitive decline and assessment of her capacity to make lifestyle and financial decisions.[4]
17 On 1 December 2015, the Deceased was assessed by Dr Ariathianto who diagnosed the Deceased with 'mixed dementia with a possible contribution from alcohol intake'.[5]
18 On 20 November 2017, the Deceased was assessed by neuropsychologist Dr Niu who prepared a report dated 6 December 2017.[6]
19 I now turn to the factual matrix in which this dispute arises.
20 The Deceased was survived by her second husband, Norman McPhee (Norman), her children from her first marriage, Timothy and Hanna Ashley (Hanna) as well as her two stepdaughters, Lisa and Julie Milosevic (Julie).
21 The Deceased's Will appointed Timothy as executor and trustee of the estate. The Will bequeaths the sum of $300,000 to Norman. Under the terms of the Will, the residual estate, subject to funeral and testamentary expenses, is to be equally shared by Hanna and the Deceased's granddaughter, Lucy Ashley (Lucy). If Hanna was to die before the Deceased, Hanna's children (Elio Debae and Sophia Debae) are to take equal shares of Hanna's share. If Lucy was to predecease the Deceased, then her share is to be equally shared by any surviving child of Lucy on them reaching the age of 18. If Lucy had no such children, her share is to be shared equally by Elio Debae and Sophia Debae.
22 In addition to the change to executors, the Codicil, made some 13 years after the Will, devised the Deceased's interest a property located in Keith Court, Research (Research property) to Lisa, and otherwise confirmed the contents of the Will.
23 The circumstances in which the Deceased came to make the Codicil are as follows.
24 On 2 September 2015, Lisa, who at that stage also held the Deceased's financial and medical powers of attorney, attended the legal firm of Bruce Arthur & Associates seeking to transfer the Research property to herself outright. On that occasion, Lisa met with the firm's senior conveyancer, Ms Linda Smith. Ms Smith told Lisa that she would not arrange to transfer the Research property based on a power of attorney and insisted on meeting the Deceased.
25 On 7 September 2015, the Deceased attended alone upon Ms Smith. The Deceased instructed Ms Smith that she wanted to transfer the Research property to Lisa. Ms Smith advised the Deceased that she should instead make an inter vivos gift of one half of the Research property to Lisa and leave the other half to Lisa by making a codicil to that effect.
26 On 9 September 2015, Lisa and the Deceased attended on Ms Smith again. At this meeting, the Deceased was adamant that Lisa should receive the Research property and that it should not go to her son. Lisa told Ms Smith that she did not want the Deceased to change her Will but rather to transfer half the Research property to her and then the other half could be left to her by codicil. At this point, Ms Smith left Lisa and Deceased and sought the advice of Mr Bruce Arthur, the principal solicitor of the firm. Mr Arthur told Ms Smith that it would be fine for Ms Smith to arrange to transfer the half share of the Research property to Lisa as long as Ms Smith was satisfied the Deceased knew what she was doing. Ms Smith then returned to her office and told Lisa and the Deceased that she was satisfied the Deceased 'understood the implications'. Ms Smith proceeded to draw up the documents for the Deceased's execution.
27 On the same day Mr Arthur met with the Deceased to take instructions for the Codicil. Mr Arthur's file note of this meeting noted the Deceased wanted to include Lisa as a co-executor and to leave the Deceased's interest in the Research property to Lisa. Mr Arthur notes that he confirmed that a one‑half share was to be transferred to Lisa as discussed with Ms Smith.
28 On 30 September 2015, the Deceased attended on Mr Arthur to execute the Codicil. Mr Arthur and Ms Smith witnessed the Deceased's signature. Mr Arthur's file note of this meeting says only 'Attendance for the execution of the codicil'.
29 On 1 July 2020, Perpetual Trustees made application for a grant of probate of the Will and Codicil. Perpetual Trustees filed an Inventory of Assets and Liabilities for the estate which listed assets to a gross value of $1,867,476.20 and liabilities of $3,632.18. The Deceased's total Victorian assets had a total value of $1,258,601.71. These assets include a half-share interest in the Research property valued at $570,000. The inventory also listed the Deceased's assets held outside Victoria which consisted of various bank accounts with a combined cash balance of $608,874.49.
30 While Perpetual Trustees' application sought a grant of probate of the Deceased's Will and Codicil, the affidavit of Rodney Skilbeck affirmed 25 June 2020 and filed in support of the application, expressed Perpetual Trustees' belief that the Codicil was not a valid testamentary document as it appeared more likely than not that the Deceased lacked testamentary capacity at the time it was executed.
31 Mr Skilbeck referred to a number of matters for the basis of his belief that the Deceased lacked testamentary capacity at the time she executed the Codicil.
32 First, the Deceased's death certificate listed as one cause of death, 'Alzheimer's dementia - years'.
33 Second, on 21 August 2015, the month before the Deceased made the Codicil, Dr de Rooy conducted a MMSE of the Deceased after she presented the Austin Health following a fall. The Deceased scored 14/30 of the MMSE. Mr Skilbeck stated that he was told by a medical expert in the context of the Victorian Civil and Administrative Tribunal (VCAT) proceeding involving the Deceased (referred to in paragraph 36 below) that a score of 15 or below on an MMSE generally indicated severe Alzheimer's disease for which medication would not be prescribed due to the extent of mental deterioration. The Austin Health discharge summary noted the Deceased had Alzheimer's dementia, hypertension, pseudogout, depression, alcoholism and recurrent falls often in the setting of alcohol use.
34 Third, an Austin Health Community Progress note dated 9 December 2015 noted the Deceased was 'too advance [sic] for any medications' and that she 'has no capacity to make decisions for EPOAs'. The same note also stated that the Deceased did not require a referral to a memory clinic as the 'diagnosis of dementia is clear and made by BECC geriatrician.'
35 Fourth, the Deceased's Austin Health medical records noted dated on or about 22 September 2015, seven days before the Deceased made the Codicil, that the Deceased 'forgets important dates' and was 'tangential in conversation, prompting required'. The notes also stated that the Deceased was 'not oriented to time, person, place' and that she had an MMSE score of 14/30 on 21 September 2015.
36 Fifth, on 17 February 2017, VCAT made orders in proceeding G79483/01 revoking a power of attorney in favour of Lisa dated 11 August 2015 (VCAT proceeding). VCAT made the revocation on the basis that it was satisfied that the Deceased lacked capacity to make an enduring power of attorney and that it was in her best interests that the appointment of attorney be revoked. At this time, VCAT appointed Mr Dillon of Geoff Dillon & Co Pty Ltd as administrator for the Deceased.
37 Following a request for further information from the Registrar of Probates, Perpetual Trustees filed the affidavit of Dr Bergin sworn 13 October 2020, a medical doctor employed by Austin Health. Dr Bergin deposed that:
(a) in September 2015 when she administered the MMSE on the Deceased, she was:
(i) a third year postgraduate medical student and had administered the MMSE under the supervision of a qualified medical practitioner employed by Austin Health;
(ii) not qualified nor authorised to make any clinical interpretation of the Deceased's test results, nor to comment on her state of mind or mental capacity;
(b) she has no recollection of the Deceased and no knowledge of any matters concerning the Deceased's Will or Codicil; and as such
(c) she is not in a position to draw any inference or conclusion about the Deceased's mental capacity.
38 Dr Bergin's affidavit exhibited the Deceased's MMSE dated 21 September 2015, undertaken 10 days before the Deceased made the Codicil, showing a score of 14/30. This document becomes relevant to both Lisa's application before for revocation of the Grant and for Perpetual Trustees' application to adduce fresh evidence, as discussed below.
39 On 4 November 2020, the Registrar of Probates wrote to Perpetual Trustees indicating Perpetual Trustees' application had been reviewed and expressing the Registrar's opinion that the evidence filed to date established that the Deceased did not have testamentary capacity when she executed the Codicil on 30 September 2015.
40 On 16 November 2020, Perpetual Trustees filed an amended application for a grant of probate of the Will only. On 19 November 2020, the Court made a grant of probate of the Will to Perpetual Trustees.
41 On 26 March 2021, Lisa filed a summons seeking an order that the Grant of probate of the Will be revoked on the basis that the Deceased also left a valid Codicil dated 30 September 2015.
42 On 26 March 2021, Lisa filed her grounds of revocation. Lisa's grounds are that at the time of execution of the Codicil, the Deceased had the requisite testamentary capacity. In her particulars of this ground, Lisa notes that:
(a) the Deceased gave instructions to Ms Smith on 7 September 2015 to transfer the whole of her interest in the Research property to Lisa;
(b) Ms Smith advised against this course;
(c) on 9 September 2015, the Deceased met with Ms Smith and Mr Arthur and gave instructions to transfer half her interest in the Research property to Lisa and to prepare the Codicil; and
(d) the Codicil was then prepared by Mr Arthur and executed by the Deceased on 30 September 2015.
43 Lisa also refers to Perpetual Trustees' assertion that the Deceased lacked testamentary capacity to execute the Codicil. In her grounds of objection, she contends that the medical evidence of Dr Bergin provided by Perpetual Trustees, in answer to the Registrar of Probates' requisition, was:
[I]nsufficient to displace the presumption and the evidence of Mr Arthur and Ms Smith that the Deceased had testamentary capacity to execute the Codicil.
44 Lisa's summons was supported by the affidavit of her solicitor, Hayley Hunter, sworn 22 March 2021. Ms Hunter deposed that she was informed by Perpetual Trustees' solicitor on 1 September 2020 that Perpetual Trustees:
(a) had filed an application for a grant of probate of the Deceased's Will but not the Codicil;
(b) had been requisitioned by the Court to provide evidence of the Deceased's testamentary incapacity at the time she executed the Codicil; and
(c) was in the process of compiling the relevant medical evidence for filing.
45 On 25 September 2021 and again on 22 October 2021, Ms Hunter wrote to Perpetual Trustees requesting a copy of Perpetual Trustees' application, the Registrar's requisition and identification of the further evidence Perpetual Trustees had obtained and filed. Ms Hunter noted that Lisa was considering her own application in relation to the Codicil. In the later letter of 22 October 2021, Ms Hunter stated that the evidence provided to the Court by Perpetual Trustees had been selective and had not included the 'affidavit' of the drafter of the Codicil, Mr Arthur, which clearly supported the assertion that the Deceased had capacity at the time she executed the Codicil. Relevantly, Ms Hunter indicated Lisa's intention to file a caveat against the estate if necessary.
46 Ms Hunter did not receive a response from Perpetual Trustees until 25 November 2021, by which time the Grant had been made. Ms Hunter then searched the Court's probate file and learned that Perpetual Trustees had not filed Mr Arthur's 'affidavit'.
47 Mr Arthur's 'affidavit' referred to by Ms Hunter is in fact a signed statement dated 22 May 2018 prepared for and filed in the VCAT proceeding (relating to revocation of the power of attorney dated 11 August 2015 in favour of Lisa). Mr Arthur's statement, exhibited to Ms Hunter's affidavit, is in the following terms:
2. In or about September 2015 my firm was consulted by Lisa Lynch in relation to matters concerning her stepmother Mrs. Brenda McPhee.
3. The matters in question concerned a transfer of a property interest in land owned by Mrs. McPhee at [the Research property] and a codicil to her existing Will.
4. Mrs. McPhee consulted with Mrs. Linda Smith of my office in relation to the transfer of the property interest.
5. On September 9 2015 I interviewed Mrs. McPhee and took instructions in relation to the preparation of a codicil to her existing Will. Those instructions were to the effect that she wanted to include Lisa Lynch as a co-executor and that she wanted to leave her interest in the [Research] property to Lisa.
6. At the time of this interview Mrs. McPhee attended alone and Lisa Lynch was not present.
7. The codicil was prepared and was signed in my office on September, 30, 2015. At the time of execution Mrs. McPhee was alone and Lisa Lynch was not present. The signing was witnessed by myself and Mrs. Linda Smith.
8. I was firmly of the opinion that at all times Mrs. McPhee knew exactly what she was doing. Her instructions to me were clear, lucid and precise and she was certainly not under any duress or pressure to have the codicil prepared and signed. She wanted to make the gift of the real estate to Lisa as a gesture of appreciation for all that Lisa had done for her.
9. At no time did I form the view that Mrs. McPhee was not in total and complete control of her faculties and if I had any reservations at all in this regard I would not have drawn and witnessed the codicil.
48 Mr Arthur's statement annexed his file notes for attendances on 9 and 30 September 2015, along with 30 October 2015. These were in the following terms:
September 9, 2015
Attending Brenda McPhee in relation to amendments to her Will as discussed with Linda. She wants to include Lisa Lynch as a co-executor and she wants to leave her interest in the [Research Property] to Lisa. Confirming that a one half share is to be transferred as discussed. Will and title to be obtained from Whitehead.
She has clear title and is transferring a half share to Lisa and she wants survivorship to Lisa's children if Lisa predeceases.
September 30, 2015
Attendance for the execution of the codicil.
October 30, 2015
Lisa Lynch rang to say that Jayne had been spelt without a Y in a few spots. Codicil was amended accordingly and Lisa advised.
49 Mr Arthur's reference to 'Whitehead' was a reference to the law firm that had drawn up the Deceased's Will. There is no indication whether Mr Arthur or Ms Smith ever obtained a copy of the Deceased's Will from Whitehead.
50 Mr Arthur's reference to 'Linda' was a reference to Ms Linda Smith, the senior conveyancer employed by Mr Arthur who had taken instructions from Lisa and the Deceased.
51 Also exhibited to Ms Hunter's affidavit was the statement of Ms Smith, similarly prepared for the purpose of and filed in the VCAT proceeding. Ms Smith's statement is in the following terms:
2. On or about September 2, 2015 I was consulted by Lisa Lynch in relation to matters concerning her stepmother Mrs. Brenda McPhee.
3. Lisa advised that she had a Power of Attorney for her stepmother and that she wanted to have a property transferred from her stepmother to herself. I told her that we would not do the transfer by her power of attorney and that we would need to see her step mother in person so that we could be satisfied that Mrs. McPhee knew exactly what she was doing. I told her we needed to be satisfied as to Mrs. McPhee's capacity. I told Lisa that I would not see them together and that I needed to see Mrs. McPhee alone and unaided.
4. On or about September 7, 2015 Mrs McPhee attended my office and confirmed her instructions to transfer the property at [address] to Lisa. She said that she wanted to make a gift of the property to Lisa as a gesture of appreciation for all that Lisa had done for her.
5. She advised that she also wanted to execute a codicil to her Will to confirm the property transfer. She indicated that her current Will left her English assets to her family members in England who were all well off and not in financial need. I canvassed the issue of her estranged husband with whom she has a good relationship and she confirmed that he would be agreeable to the property being transferred to Lisa as he had his own property.
6. Ultimately it was decided that a half share only would be transferred to Lisa so as to preserve some proprietary rights for Mrs. McPhee. The transfer as such was ultimately signed and registered at Land Victoria.
7. At all times I was firmly of the opinion that Mrs. McPhee knew exactly what she was doing. Her instructions to me were clear, lucid and precise and she was certainly not under any duress or pressure to have the transfer of land prepared and signed.
8. At no time did I form the view that Mrs. McPhee was not in total and complete control of her faculties and if I had any reservations at all in this regard I would not have proceeded to act on her behalf.
52 Ms Smith also annexed file notes to her statement for attendances on 2, 7 and 9 September 2015.
53 Ms Smith's file note dated 2 September 2015 records Lisa's attendance and request for Ms Smith to prepare a transfer of property from the Deceased to Lisa, relying on Lisa's powers of attorney. Ms Smith's note says she advised Lisa the firm would not do the transfer by power of attorney but would require the Deceased to 'sign and be able to understand what she was doing.' Ms Smith told Lisa she did not want to see Lisa and the Deceased together and that the Deceased would have to see Ms Smith alone so Ms Smith could make sure the Deceased 'understood the implications'.
54 Ms Smith's file note of the Deceased's attendance on 7 September 2015 notes that the Deceased owned the Research property where she lived alone, that the Deceased was separated from her husband and that she had independent means, including financial interests in England. Ms Smith noted that the Deceased had a stepdaughter, Lisa, a 'very financially independent' son and a family in England 'who she is basically estranged from'.
55 Ms Smith noted the reason for the Deceased's visit as being to transfer her house to Lisa, who she said looks after her, and with whom she had a very good relationship. The Deceased told Ms Smith she did not want her son to get her house after she dies. Ms Smith told the Deceased she was unhappy about transferring the whole house to Lisa, leaving the Deceased potentially homeless. Ms Smith advised the Deceased that she could leave the house to Lisa by codicil to her Will. This file note concluded:
I told her that she was to come back to see me with Lisa so that I can express my concerns re the Transfer of the whole house, also payment of stamp duty and family law consequences. I would also speak with Bruce about her Will and doing a codicil which in my view was the better way to go.
56 Ms Smith's file note dated 9 September 2015 states that Lisa and the Deceased attended upon her that day. Ms Smith noted she explained in detail to both Lisa and the Deceased that she was unhappy about transferring the whole property to Lisa without a tenancy in place for the Deceased. The Deceased:
[W]as adamant that Lisa deserved the house and she wanted to make sure she got the house because she does not communicate or speak with her son and there could be problems after she dies.
In relation to the Will Lisa did not want Brenda to change her will maybe just transfer half of the house at this stage and...then the other half could be left to her by codicil.
58 During this consultation, Ms Smith left Lisa and the Deceased in her office and consulted with Mr Arthur, the principal lawyer. Mr Arthur advised Ms Smith that:
[T]he transfer of half share would be fine as long as I was satisfied Brenda knew what she was doing. He would do the codicil to the Will.
[W]ent back and told them that I was satisfied that [the Deceased] understood the implications and I would draw up the Transfer etc.
60 Ms Smith then drew up the transfer documents and witnessed the Deceased's signature.
61 Ms Hunter, Lisa's solicitor, swore a further affidavit on 22 April 2021. Ms Hunter's second affidavit exhibits two Neuropsychology Assessment Reports by Dr Niu, a clinical neuropsychology registrar, both dated 6 December 2017. The reports were prepared after Dr Niu's assessment of the Deceased on 20 and 22 November 2017. Ms Hunter deposes that Dr Niu's second report of the same date appeared to have been produced to correct minor errors in Dr Niu's first report.
62 Dr Niu's report states that the neuropsychological assessment to characterise the Deceased's testamentary capacity was requested by Lisa to clarify the Deceased's wishes surrounding her assets as there were concerns surrounding her then cognitive functioning.
63 In a section entitled 'Relevant Medical and Health Information', Dr Niu makes reference to a letter dated 1 December 2015 by Consultant Physician and Geriatrician, Dr Ariathianto. Dr Niu's report states that in this letter, Dr Ariathianto:
(a) reported multiple causes of the Deceased's cognitive impairment and diagnosed her with probable mixed Alzheimer's dementia and vascular dementia with contribution from alcohol-related cognitive impairment and mood disorder; and
(b) was unable to complete an extensive objective cognitive assessment of the Deceased, however, he suspected the Deceased was lacking capacity in making complex financial, medical and lifestyle decisions and was at risk of being taken advantage of financially.
64 Dr Niu also noted that the Deceased had undergone a neuropsychological assessment by Dr Pangnadasa on 19 August 2016 [sic] while an inpatient at Austin Health. Dr Pangnadasa reported the Deceased:
[D]emonstrated poor insight and widespread cognitive impairment, suggestive of a dementia of Alzheimer's type.
65 Dr Pangnadasa also reported that the Deceased's decision-making capacity was likely to be compromised. Relevantly, Dr Niu's report refer to the Austin Health discharge summary dated 16 August 2016 which listed an MMSE score of '14/30 in August 2016' [sic]. That MMSE was in fact carried out in August 2015, the month before the Deceased made her Codicil. This becomes critical to Perpetual Trustees' submissions, as discussed in paragraphs [86] and [121] below.
66 Dr Niu took a psychosocial history from the Deceased. The Deceased told Dr Niu that she was born in England and had first married at the age of17. The Deceased said her first husband had died of cancer, leaving her with two children, Hanna and Timothy. Hanna has three children, Lucy, Elio and Sophie but the Deceased had little contact with them. The Deceased met her second husband, Norman while on holiday in Italy. The Deceased told Dr Niu that Norman had three children, Lisa, Julie and Shelley.[7] The Deceased reported that Lisa did everything for her.
67 In relation to the Deceased's testamentary capacity, Dr Niu reported that the Deceased 'has sufficient testamentary capacity'. Dr Niu applied the Banks v Goodfellow test criteria and reported the following answers:
1 Does the testator know that the document is a Will?
[The Deceased] was generally able to portray a basic understanding of what constitutes a will.
2 Does the testator know their assets?
[The Deceased] was able to articulate her current asset, i.e. "[address], Reserve", but was unable to articulate how much the property was worth, and often referred to her solicitor, Norman or Lisa as "sorting things" for her. In this regard, her knowledge of her assets may not be "good enough", however, it should be noted that she has had a financial power of attorney since 2015, and currently, as administrator, who has been assisting her with her financial and/or legal circumstances.
3. Does the testator know to whom they owe a moral duty?
[The Deceased] was consistent regarding her wishes for her stepdaughter, Lisa, to receive her property. Whilst she required prompting about her family in England, she was consistent with regard to her wishes for her children (Hanna, Tim) to not receive the property. When queried about her previous neighbour, Ivor, she reported that whilst they were "good friends" when they were neighbours, they were "not that close" presently, and she did not want to give the property to him. She was steady with these wishes across both sessions of the assessment, stating that Lisa has "always been there to look after" her. In all, [the Deceased] was consistent in her knowledge to whom she owed a moral duty.
4. Is the testator able to weigh up the claims of those people around them?
From a cognitive perspective, [the Deceased's] significant cognitive impairments including memory, working memory, reasoning and executive functioning will likely impede her ability to understand and to remember novel information in order to fully appreciate her options and to comprehend the consequences of her decisions. As such, she would conceivably find it difficult to weigh up the claims of the people around her effectively and efficiently without support from a trusted person.
5. Is the testator free from other delusions or mental defects?
Yes.
Ultimately, [the Deceased's] presentation suggests she has sufficient testamentary capacity - she provided reasonably accurate, sensible and consistent accounts of her current circumstances. Her wishes surrounding her estate should therefore be regarded as valid, as should her opinion regarding her family in England, given corroborative evidence indicating her lack of contact with them over the past two decades. Her reduced cognitive abilities suggest she will not be able to make complex decisions regarding her finances and/or legal circumstances.
[Emphasis in original]
68 I interpolate briefly to note that it can be readily assumed that reference to the 'Banks v Goodfellow test' is a reference to the 1871 decision of the High Court of England and Wales in Banks v Goodfellow[8] which set out the requisite elements of testamentary capacity.
69 Ms Hunter swore a third affidavit on 27 July 2021. In that affidavit, Ms Hunter deposed that she had provided Dr Niu's report of 6 December 2017 to Perpetual Trustees' solicitor on 28 November 2019 along with other medical documents.
70 Those medical documents are exhibited and include a letter dated 3 March 2017 prepared by Dr Taylor for the purpose of the VCAT proceeding. In relation to testamentary capacity, Dr Taylor recommended further assessment by a geriatrician. Dr Taylor stated her belief that the Deceased had 'some capabilities to direct her wishes in this area'.
71 The medical documents exhibited to Ms Hunter's third affidavit also included Austin Health's Community Progress note dated 9 December 2015. This note records advice given to the author that the Deceased had been diagnosed by geriatrician Dr Ariathianto with 'mixed dementia with a possible contribution from alcohol intake.'
72 Lisa swore an affidavit on 28 July 2021. Lisa deposed that in 2016, the Deceased's neighbour, Ivor Engleby, commenced the VCAT proceeding, culminating in the appointment of Mr Dillon as administrator to manage the Deceased's financial affairs. Lisa deposes that when her father left the marital home to move into a retirement village, he transferred his interest in the Research property to the Deceased. The Deceased paid no consideration for the transfer. In September 2015, the Deceased told Lisa she wanted to arrange to transfer the Research property to Lisa, following which Lisa contacted Bruce Arthur & Associates for legal advice. After a telephone consultation with Ms Smith on 2 September 2015, Lisa took the Deceased to meet with Mr Arthur and Ms Smith, who then prepared the transfer and Codicil respectively.
73 Lisa deposed to circumstances leading to the preparation of Dr Nui's report of 6 December 2017. Lisa states that Dr Niu's report is 'unequivocal in its finding and accords with [Lisa's] observations of [the Deceased].'
74 Lisa denied that the Deceased had a 'drinking problem' saying that the Deceased drank regularly but never drank heavily. Lisa then referred to perjury charges that had been bought against her by Victoria Police, saying the matter remained on foot and she vehemently denied the charges and intended to contest them at hearing.
75 Perpetual Trustees relied on a number of affidavits in defence of Lisa's revocation application.
76 John McBride, a neighbour residing at Keith Court, Research, swore an affidavit on 8 June 2021 in support of Perpetual Trustees' position, along with a further affidavit on 9 June 2021.
77 In his first affidavit, Mr McBride deposed that he and his wife, Sofie Laguna, moved into Keith Court in October 2013 and were the Deceased's neighbours until she was transferred to a nursing home. He said that he assisted the Deceased with odd jobs around her home. He described the Deceased as eccentric and said the Deceased told him she started drinking early every day. Mr McBride said in around 2014 he tried to discuss with the Deceased the need to make a plan in case of bushfires in the area. He found the Deceased did not seem capable of grasping the seriousness of the risk nor sensible enough to make a fire plan. He observed that the Deceased's family were not involved in her life, and so he and his wife felt responsible to look after the Deceased in the case of an emergency fire situation. Mr McBride recounted two situations in 2014 that caused him to be concerned about the Deceased's mental state, both involved the Deceased approaching and talking to other men as though they were Mr McBride, without seeming to register that they were not him.
78 Mr McBride said that he recalled the Deceased talk disparagingly about her husband and Lisa, saying they were 'after her money'. Mr McBride said he only met Lisa once. Mr McBride deposes that in late 2014, Lisa approached him and his wife asking them to stop visiting the Deceased. Mr McBride did not see the Deceased after she moved into the nursing home.
79 Sofie Laguna, Mr McBride's wife, affirmed an affidavit on 8 June 2021 in support of Perpetual Trustees' case. Ms Laguna described the Deceased as a lonely woman who sought out Ms Laguna and Mr McBride. Ms Laguna said it was obvious to her that the Deceased was a heavy drinker 'who always smelled of alcohol'. Ms Laguna was concerned from soon after meeting the Deceased about the Deceased's alcohol consumption. Ms Laguna stated she once found the Deceased lying on the side of the road, very weak and disoriented with her vehicle awkwardly parked. Ms Laguna had to physically pick the Deceased up off the ground and help her inside. On another occasion, Ms Laguna found the Deceased in her vehicle which was stuck on a speed hump at the end of their street. The Deceased appeared disoriented and unable to navigate her vehicle off the speed hump and into her property. Ms Laguna had to drive the car off the hump and into the Deceased's property.
80 Ms Laguna said she noticed a rapid decline in the Deceased's mental state between late 2013 and 2015. During this time, the Deceased became increasingly confused, inconsistent and physically weak. Ms Laguna recalled an incident in late 2014 or early 2015 when the Deceased used the television remote control to make a call to the local council, including:
[S]peaking into the remote control as though she was having a conversation with someone at the end of a telephone line. She was clearly not in her right mind.
81 Ms Laguna recalled the Deceased mistaking other men for Mr McBride.
82 Ms Laguna also recalled the Deceased speaking about her husband, Norman, and Lisa, including of her intention to outlive them to stymie their desire to 'get her money'. Ms Laguna met Lisa only once, in or around late 2014. They had a disagreement over Ms Laguna and Mr McBride's dog.
83 Another neighbour in Keith Court, Rachel Brown, swore an affidavit on 11 June 2021 in support of Perpetual Trustees' case. Ms Brown met the Deceased when she moved into the house in Keith Court. She said she and her husband had a good relationship with the Deceased until she moved into aged care, after which time, Ms Brown said she was actively discouraged by Lisa from contacting the Deceased. Ms Brown's husband, Jason, did odd jobs for the Deceased. In 2011, the Deceased hired Ms Brown to clean the Deceased's home and she also took the Deceased on weekly outings to lunch and to shop. On 11 October 2015, Lisa confronted Ms Brown on the street and told her to stop visiting the Deceased. After that Ms Brown became concerned about the Deceased's mental state, particularly after the Deceased's dogs died in 2015. Ms Brown said that the Deceased's drinking became more apparent as she got older and that she and her husband were concerned about the Deceased driving a motor vehicle. Ms Brown recalled that on one occasion she and her husband found the Deceased with her car stuck on top of the roundabout in their street. The Deceased seemed 'fuzzy' and Ms Brown thought she may have been drinking. Ms Brown and her husband moved the Deceased's car to her driveway as the Deceased 'couldn't manage it herself'.
84 Ms Brown recalled being told by Lisa that the Deceased had 'aggressive dementia', although this was in the context of Lisa seeking to explain an incident Ms Brown had observed between the Deceased and her husband. Ms Brown did not recall Lisa visiting the Deceased often or staying long when she did.
85 Ivor Engleby and his wife, Maria, were the previous owners of the Research property, before it was sold to the Deceased and Norman. Mr Engleby swore an affidavit in support of Perpetual Trustees' case on 8 June 2021. Mr Engleby said that he and his wife maintained contact and formed a close friendship with the Deceased after she purchased their house. Mr Engleby was an accountant, and from time to time the Deceased sought his informal advice on her finances. Mr Engleby never gave the Deceased investment advice. The Deceased also sought Mr Engleby's advice on changes to her Will. Mr Engleby advised the Deceased to speak to her solicitor.
86 Mr Engleby believed that the Deceased and her husband's relationship was unhealthy and that her husband was regularly verbally abusive towards the Deceased. Mr Engleby observed evidence of physical abuse to the Deceased's wrist, face and legs that he understood had been inflicted by her husband.
87 Mr Engleby said he observed a gradual decline in the Deceased's mental health from mid-2014. In August or September 2015, the Deceased called Mr Engleby and spoke to him as though he was her neighbour, Jason. In another call to Mr Engleby, the Deceased 'sounded like she was hallucinating'. In a further call, the Deceased complained her heating was not working even though it was in good working order.
88 Mr Engleby said Lisa arranged for the Deceased to move into a nursing home around 29 September 2016. Mr Engleby believed the Deceased did not want to move. He too reported being discouraged by Lisa from visiting the Deceased at the nursing home and he became concerned that Lisa was deliberately isolating the Deceased from her friends. On 31 October 2016, Mr Engleby contacted Elder Rights Victoria to raise his concerns. Following their intervention, Mr Engleby was allowed to visit the Deceased but not take her out of the nursing home.
89 Mr Engleby visited the Deceased on 10 November 2016. He said that during this visit, the Deceased told him she did not like the level of control Lisa was exercising over her and that she wanted to move back home. As a result, Mr Engleby arranged a medical consultation for the Deceased with Dr Taylor (the Deceased's doctor) and Dr Rattray‑Wood, Mr Engleby's doctor. On 9 December 2016, the nursing home staff, on Lisa's instructions, prevented Mr Engleby from taking the Deceased out of the nursing home to meet with Dr Rattray-Wood in person. Dr Rattray-Wood conducted a telephone consultation and prepared a report which Mr Engleby submitted to VCAT in support of his application for the appointment of a guardian for the Deceased. On 10 December 2016, Mr Engleby again visited the Deceased at the nursing home and was told by the Deceased that she had received numerous phone calls from Lisa threatening to empty her bank accounts and withdraw care. Mr Engleby said that on 12 December 2016, the Deceased asked Mr Engleby if she could go to court to do something about Lisa's behaviour towards her.
90 Mr Engleby said that he retrieved financial documents from the Deceased house on 16 December 2016. On the same day, he received a threatening voice message from Lisa. On 20 December 2016, staff at the nursing home, on Lisa's instructions, stopped Mr Engleby visiting the Deceased. On 11 January 2017, Mr Engleby obtained an Interim Intervention Order against Lisa.
91 On 18 January 2017, Mr Engleby contacted the Deceased's longstanding solicitor, Mr Edward Murray Whitehead. Mr Whitehead informed Mr Engleby that Lisa had taken control of the Deceased's legal affairs some years ago and that Mr Whitehead was no longer the Deceased's solicitor.
92 Mrs Maria Engleby affirmed an affidavit in support of Perpetual Trustees' case on 17 June 2021. She deposed that the Deceased had spoken to her about being verbally and physically abused by her husband. The Deceased also told Mrs Engleby that Lisa frequently asked her for money and that she often gave Lisa significant amounts. In around 2013 and 2014, the Deceased told Mrs Engleby that Lisa wanted to move into her home, which the Deceased opposed. The Deceased reported to Mrs Engleby that Lisa was taking more and more control over the Deceased's life, including by sacking her gardener and cleaner and confiscating her car. Mrs Engleby was worried that the Deceased was becoming isolated. Mrs Engleby said she observed a sharp decline in the Deceased's general wellbeing in the last couple of years before the Deceased moved into the nursing home.
93 Lucy Smith, a trust manager employed by Perpetual Trustees, affirmed an affidavit on 4 June 2021. Ms Lucy Smith deposed that she does not believe that the Codicil is a valid testamentary document, as it appeared that at the time of executing the Codicil the Deceased lacked testamentary capacity and suspicious circumstances existed such that the Deceased did not know and approve the contents of the Codicil.
94 Ms Lucy Smith's affidavit exhibits extracts of the Deceased's medical records. According to Ms Smith, the Deceased's medical records demonstrate an impairment and decline in her cognition from around Christmas 2014 leading up to her formal diagnosis of Alzheimer's dementia on 1 December 2015. The Deceased's medical records also suggest that long-term drinking may have contributed to the Deceased's declining cognition and may be linked to the Deceased's Alzheimer's dementia diagnosis.
95 In particular, Ms Lucy Smith points to aspects of the Deceased's medical records, including:
(a) the Austin Health Emergency Department notes of 21 August 2015 that state the Deceased, 'has had multiple falls recently, in the context of worsening cognitive functioning';
(b) an Austin Health Community Progress note dated 9 December 2015 stating in relation to the Deceased's dementia, the Deceased was 'too advanced for any medications' and that she 'has not capacity to make decisions for EPOAs'. The same note also states the Deceased did not require a referral to a memory clinic as the 'diagnosis of dementia is clear and made by a BECC geriatrician';
(c) the Austin Health 'Community Episode' report dated 9 December 2015 which states that the Deceased had been:
[S]een by geriatrician Dr Yohannes Ariathianto who made a diagnosis of mixed dementia with a possible contribution from alcohol intake. Christina said she is too advanced for any medications for AD.
(d) the Austin Health Emergency Continuation notes dated 20 September 2015 stating:
[D]aughters advise that [the Deceased] has a history of alcohol abuse..
her face has a mask like appearance..
failed driving test recently..
Both daughters are concerned about their mother's sudden physical deterioration + cognitive decline. They are concerned she may be at risk of injuring herself if she were to remain @ home alone.
(e) the Austin CATT - Core Medical Assessment Report and Discharge Summary dated 20 September 2015 stating:
[F]amily report subacute decline in cognition over last 6 months with confusion/memory impairment...Very tangential in conversation, difficulty answering direct questions and on several occasions forgot question mid conversation requiring prompting. Not oriented to place, year, month (October), date or day (Monday)... Needs formal assessment.
(f) the same report identified the Deceased had 'disorganised thinking, incoherence of speech' and identified the 'key issue' as 'confusion/cognitive decline';
(g) the MMSE of the Deceased by Dr Bergin dated 21 September 2015 showed a score of 14/30. This report notes the Deceased was unable to name the date, year, month, season, hospital/house number, ward/street name, suburb or state;
(h) the Austin Health Nutrition Assessment report dated 21 September 2015 recording the Deceased as having alcohol daily;
(i) the Austin Health Community Episode Consultation report dated 23 September 2015 stating:
6-12/12 of functional decline with cognitive impairment. Noticed by family: forgets important dates. Tangential in conversation. Prompting required. Not orientated to time, person, place. Needs formal assessment.
(j) Consultant Physician and Geriatrician, Dr Ariathianto's diagnosis of the Deceased on 1 December 2015 with:
Alzheimer's dementia and vascular dementia with contribution from alcohol-related cognitive impairment and mood disorder.
(k) Dr Ariathianto's report notes the Deceased has a:
[K]nown significant alcohol intake... cognitive decline since Christmas 2014 in the form of predominantly short-term memory loss... I suspect [the Deceased lacks the capacity in making complex financial, medical and lifestyle decisions and is at risk of being taken advantage of financially.
Dr Ariathianto's diagnosis was made following:
An ACAS Assessment Outcome Report dated 24 November 2015 recommended 'investigation and diagnosis of cognitive decline, assessment of capacity to make lifestyle and financial decisions'; and
A home visit by Dr Ariathianto to assess the Deceased.
(l) Dr Niu's Neuropsychology Assessment Report dated 6 December 2017.
Lisa's evidence in response to Perpetual Trustees' evidence
96 In Lisa's affidavit sworn 28 July 2021, she responds to aspects of Perpetual Trustees' evidence.
97 Lisa denies that she took any steps to deny the Deceased social interactions. She also denies Mr and Mrs Engleby maintained a close relationship with the Deceased. Lisa stated that Mr and Mrs Engleby did not see the Deceased for a period of three years between 2013 and 2016 and did not visit her after the VCAT proceeding was issued. Lisa said the decision for the Deceased to be released into aged care was made by Geriatrician Professor Dr Murray of the Austin Hospital, who had determined that the Deceased was at high risk of further falls. That decision was confirmed by Dr Taylor after the Deceased had undergone neuropsychiatric testing, occupational therapy, physiotherapy and a geriatric review.
98 Lisa denied that she ever borrowed any money from the Deceased as alleged by Mrs Engleby.
99 Lisa generally denied Mr McBride and Ms Laguna's allegation that Lisa's father was abusive towards the Deceased. Lisa also stated that Mr McBride and Ms Laguna's house is located in a position that would make it impossible for them to observe who was visiting the Deceased's home.
100 Lisa deposed that the Deceased told her that she had been paying her neighbour Ms Brown for a few months and that Ms Brown was not cleaning the Deceased's house. Lisa denies sending abusive text messages to Ms Brown.
101 Having canvassed the factual background and evidence relied upon by the parties, I now turn to the applicable legal principles in relation to the two prima facie case applications.
102 In Gardiner v Hughes (No 2),__[9] the Court of Appeal explained the meaning of 'prima facie case' in the following terms:
The task for the party seeking to have a grant of probate revoked is therefore to show that there is a 'case for investigation' or 'something to go on'. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice. Decisions in New South Wales capture a similar notion using the expression 'reasonably arguable' or, perhaps less commonly, 'substantial issue to be tried'. Consistently with the notion of 'investigation', New South Wales authorities permit regard to be had to the evidence 'reasonably thought likely to be available'
...
[T]he power to revoke a grant of probate is discretionary, involving a consideration of all the circumstances and not just the merits of the case. Those discretionary considerations are apt to be considered only with the prima facie case question, at a preliminary stage.[10]
103 It is not necessary for a prima facie case to be demonstrated by evidence. Where evidence is available, it will carry more weight than mere allegations contained in grounds of objection.
Legal principles relevant to capacity and knowledge and approval
104 In Veall v Veall,[11] Santamaria J, with whom Beach and Kyrou JJ agreed, surveyed the authorities on the concepts of testamentary capacity and knowledge and approval as follows:
Capacity, knowledge and approval
Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder. The propounder must prove that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution. By contrast, where fraud or undue influence is alleged, the onus of proof lies on the party alleging it.
In Kantor v Vosahlo, Buchanan and Phillips JJA (with whom Ormiston JA agreed) said:
... a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.
The "relevant time" is the time at which the will is executed. The ability of a testator to make a will may fluctuate. A testator who is aged and infirm may suffer from dementia or some other form of impairment. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.
If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the court that the testator had testamentary capacity: that is that the testator was of "sound and disposing mind".
Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.
The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will's legitimacy.
In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:
(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the court is bound to pronounce against the instrument.
(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.
Once suspicious circumstances are established, it is then for the propounder to dispel that suspicion. What evidence will be sufficient to allay the court's suspicion will necessarily depend on the circumstances supporting the suspicion; the proof required to allay "suspicious circumstances" will depend upon what it was about the circumstances that made them suspicious. For instance, where a person who stands to gain a benefit under the will participated in its production and execution, it is said that special vigilance is required.
Knowing and approving of the contents of one's will is traditional language for saying that the will "represented [one's] testamentary intentions". "Testamentary capacity" and "knowledge and approval" are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:
[I]t may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred.
The circumstances that arouse suspicion will vary. The fact that a beneficiary took part in the preparation of the will is only an obvious example of a circumstance creating suspicion. In Wintle v Nye, Viscount Simonds said:
It is not the law that in no circumstances can a solicitor or other person who has prepared a will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.
The principle exemplified in such cases as Barry v Butlin, Fulton v Andrew and Wintle v Nye is not confined to a case in which suspicion is generated because a will is prepared by or on the instructions of a person taking a benefit out of it, or who stands to gain from it. The principle extends:
... to all cases in which circumstances exist which excite the suspicion of the court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.
In Williams, Mortimer & Sunnucks - Executors, Administrators and Probate, the authors deal with particular matters which arouse suspicion. They say:
A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside.
The testator's feebleness of body or mind may be relevant to knowledge and approval.
Proof that the will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator.
In the mid 19th century, the rule appeared to be that a testator was to be taken to have known and approved the contents of his will if he was shown to be capable and that he "had the will read over to him or otherwise had notice of its contents at the time of execution, then in the absence of fraud the court cannot have regard to other evidence showing that he did not in fact know and approve". However, it was decided in Fulton v Andrew that there was "no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all farther inquiry is shut out." Over the next several decades, consideration was given to the significance to be attached to the fact that the will had been read over to the testator.
In Crerar v Crerar, Sachs LJ said there was no rule of law "applicable to unusual cases which can so put that conscience [of the court touching the validity of a testamentary disposition] into a strait-jacket as to preclude it from drawing inferences in the usual way and thus force the court to a decision which would, on the particular facts, be artificial." He went on to say that the court had:
... to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law.
It is the testator's understanding that is decisive: the issue to be determined is whether the testator knew and approved the contents of the will. Sufficiency of evidence will depend upon the circumstances of the case. In Tobin v Ezekiel, Meagher JA put it as follows:
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin ... ; Gregson v Taylor ...; Re Fenwick ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ... ; Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ...; Nock v Austin ...; Fuller v Strum ...; Dore v Billinghurst ....[12]
Prima facie case on Deceased's capacity at the time of making her Codicil
105 Lisa submitted the evidence of Mr Arthur and Ms Smith together with the report of Dr Niu take her case well past the threshold of a prima facie case that the Deceased had testamentary capacity on 30 September 2015 when she made the Codicil.
106 Lisa submitted that Mr Arthur is an experienced and independent solicitor and Ms Smith is an experienced and independent conveyancer. Ms Smith took extensive instructions from the Deceased about her estate and the competing claims to her bounty. Ms Smith was alive to the need to ensure the Deceased knew what she was doing. Both Mr Arthur and Ms Smith had the opportunity of examining the Deceased on the day she provided her instructions for the Codicil and the day she executed the Codicil. Both formed the view the Deceased had capacity.
107 In relation to Dr Niu's report, Lisa submitted that while the report was prepared two years after the Deceased executed the Codicil, the Deceased's account to Dr Niu of her estate and the claims on her bounty matched those she had earlier given to Ms Smith. Dr Niu was satisfied, after applying the Banks v Goodfellow test, that despite the Deceased's diagnosis of dementia, the Deceased had a sound and disposing mind and memory. Lisa, noting that 'dementia is a degenerative condition ... [that] tends to get worse over time', submitted that there is no reason to think the Deceased did not also have testamentary capacity on the day two years earlier when she executed the Codicil.
108 In relation to her delay in bringing her application for revocation, Lisa conceded that delay in bringing a revocation application can be a bar to making such a claim. Lisa submitted that in her case, she made the application only four months after the Grant and that her failure to lodge a caveat is due to Perpetual Trustees conduct.
109 Perpetual Trustees submitted Lisa has not established a prima facie case that at the time of executing the Codicil the Deceased had the requisite testamentary capacity. Perpetual Trustees further submitted that Lisa has not adequately explained her delay in bringing her revocation application.
110 Perpetual Trustees submitted that Mr Arthur and Ms Smith's evidence:
(a) does not address the legal test for testamentary capacity;
(b) was not, apart from the file notes, prepared contemporaneously with the execution of the Codicil; and
(c) does not include any medical evidence supporting an inference that the Deceased had capacity.
111 Perpetual Trustees noted that the statements of Mr Arthur and Ms Smith, which both attested to the Deceased's capacity at the time she executed the Codicil, were sworn almost three years after the Codicil was executed. While their statements attach Mr Arthur's and Ms Smith's contemporaneous file notes, those file notes do not contain any reference to Mr Arthur assessing the Deceased for testamentary capacity.
112 In relation to Dr Niu's report, Perpetual Trustees submitted that the report was not prepared at a time proximate with the execution of the Codicil and relied upon incorrect information, including the incorrect date of August 2016 for when the Deceased scored 14/30 on the MMSE. Perpetual Trustees said that Dr Niu's report stood in stark contrast with the Deceased's contemporaneous medical records and the observations of neighbours and friends from around the time the Codicil was executed.
113 Perpetual Trustees submitted that having regard to all of the evidence, the Court ought to be satisfied that the Codicil was executed in suspicious circumstances, and that suspicion has not been allayed by Lisa. Perpetual Trustees stated that Lisa was the person in whose favour the Codicil was made. According to Perpetual Trustees, at the time the Deceased executed the Codicil, Lisa possessed influence and authority over the Deceased and instigated the transaction by contacting the solicitor who made the Codicil.
114 Perpetual Trustees did not go so far as to allege that the Codicil was procured under the undue influence of Lisa.
115 As the Deceased's Codicil was duly executed, it is presumed valid unless that presumption is displaced by circumstances giving rise to a suspicion that the Deceased lacked testamentary capacity or did not know and approve the contents of the Codicil.
116 Where the evidence casts doubt on the Deceased's testamentary capacity, the Court must decide against the validity of the Codicil unless Lisa proves affirmatively that the Deceased was of sound mind, memory and understanding at the time she gave instructions and executed her Codicil.
117 In this case, there is significant medical evidence proximate to the time she made her Codicil casting doubt on the Deceased's testamentary capacity. That evidence includes each of the matters deposed by Ms Lucy Smith in paras 94(a) to (k) above. In summary, that evidence includes that the Deceased had suffered a noticeable cognitive decline in the six months prior to September 2015, that on examination she was not oriented to time, person or place, and that only nine days before executing her Codicil she scored 14/30 on the MMSE conducted by Dr Bergin.
118 On 1 December 2015, two months after executing her Codicil, the Deceased was diagnosed by a Geriatrician. Dr Ariathianto stated:
I understand that there is a cognitive decline since Christmas 2014 in the form of predominantly short-term memory loss....Lisa states that [the Deceased] does not cook anymore... [and]....may not attend to personal hygiene quite regularly either. She cannot attend the grocery shopping and bill payment and Lisa has been doing this.... [The Deceased] was unable to recall the amount of pension and the name of bank. She incorrectly stated she pays the bills herself..... She is unable to recall the name and number of grandchildren. She is oriented to place but not to time and person.
Overall, there is multifactorial cause for the cognitive impairment but predominantly I suspect [the Deceased] has probably mixed Altzheimer's and vascular dementia with contribution from alcohol-related cognitive impairment and mood disorder. Although I was unable to do a complete examination given her non-participation and irritability, I suspect [the Deceased] lacks the capacity in making complex financial, medical and lifestyle decisions and is at risk of being taken advantage of financially. I have mentioned this to Lisa ...who I understand is the main carer and has power-of-attorney.
120 I also note the Austin Health Community Progress Note dated 12 December 2015 states that 'Christina from ACAS' said the Deceased was 'too advanced for any medications for AD' and that Dr Ariathianto 'will not be following up but will send report to GP.' The same note states:
Referral to memory clinic not to proceed given diagnosis of dementia is clear and made by BECC geriatrician.
121 The suspicion that the Deceased lacked testamentary capacity when she made her Codicil is compounded by the evidence of her neighbours. That evidence corroborates the Deceased's significant history of alcohol intake and confusion. While I agree that not all of this evidence relates to a time proximate to the Deceased's execution of her Codicil, the evidence of Mr Engleby and Ms Brown does recount their observations of the Deceased in 2015.
122 Added to this evidence is the fact that Lisa initiated the preparation of the Codicil and took a substantial benefit under it. In addition, the Codicil, while perhaps not rising to the level of being irrational, did represent a significant departure from the Will which had been in place since 2002.
123 Suspicious circumstances having been established, has Lisa propounded a prima facie case the Deceased had testamentary capacity? Lisa points primarily to the evidence of Mr Arthur and Ms Smith and also to the report of Dr Niu to satisfy the Court that the Deceased had testamentary capacity at the time of making her Codicil.
124 On its face, the evidence of Mr Arthur and Ms Smith appears to raise 'a case for investigation' that the Deceased had testamentary capacity at the relevant time, noting that what is required is something less than that required to ultimately prove the issue at trial. Both Mr Arthur and Ms Smith gave statements on 22 May 2018 (for use in the VCAT proceeding) by which they stated, in broadly identical terms, that they were each firmly of the opinion that the Deceased knew exactly what she was doing, that her instructions were clear, lucid and precise and that she was not under any duress to prepare and sign the Codicil. Both stated that at no time did either form a view that the Deceased was not in total and complete control of her faculties. The authorities make clear that evidence from the person who actually takes the instructions and witnesses a testamentary instrument is to be afforded significant weight.
125 The evidence of Mr Arthur is, however, not limited to the substance of his statement. It also includes his contemporaneous file notes which were exhibited to his statement. Lisa submitted that Mr Arthur was an experienced solicitor who was alive to the issue of the Deceased's capacity. Mr Arthur's file notes made on the day he took instructions for the Codicil and on the day the Codicil was executed make no reference to the issue of the Deceased's capacity. In my view, if he was indeed alive to that issue, one would expect some level of detail about what steps he took to ensure that the Deceased did in fact have testamentary capacity, or indeed a reference to testamentary capacity in his file notes when he attended on the Deceased. Neither Mr Arthur's statement nor his file notes contain any record of Mr Arthur making inquiries about or assessing the Deceased's testamentary capacity. Neither contain any reference to Mr Arthur conducting the Banks v Goodfellow test or seeking any medical records in relation to the Deceased. Neither contain any record of Mr Arthur or Ms Smith actually obtaining the Deceased's Will from Whitehead, the former solicitors. Neither record that Mr Arthur made any relevant searches to ascertain the Deceased's assets other than the Research property. The highest Mr Arthur is able to put the issue is when he says in his statement, prepared approximately two-and-a-half years after the events in question, that his opinion was that the Deceased knew exactly what she was doing, her instructions were clear and lucid, and that she was in total and complete control of her faculties. Without a basis for his opinion that the Deceased was in total and complete control of her faculties, and in light of the contemporaneous medical evidence, Mr Arthur's opinion does not rise above the level of speculation.
126 Further, it is relevant to note that when asked if Mr Arthur was willing to file an affidavit in this proceeding, he declined because he had already provided his full and complete evidence. In light of this statement Mr Arthur's statement and file notes are likely to be the only evidence available from him.
127 Ms Smith's contemporaneous file notes indicate she was concerned to ensure the Deceased knew what she was doing and 'understood the implications'. In relation to the implications, Ms Smith carefully sets out her concerns about the Deceased transferring the whole of the Research property to Lisa and her advice that only half the property be transferred inter vivos to Lisa with the remaining half bequeathed to Lisa by codicil. I accept that Ms Smith provided this advice. What is unclear is how Ms Smith satisfied herself that the Deceased understood that advice and had capacity to make the Codicil. I note that Ms Smith's file notes record that in relation to the Will, it was Lisa who:
[D]id not want Brenda to change her will maybe just transfer half of the house at this stage and...then the other half could be left to her by codicil'.
128 Ms Smith's opinion of the Deceased's state of mind at the time she gave instructions, also recorded approximately two-and-a-half years after the event, raises the same issues as the identical statements in Mr Arthur's statement. Without a clear basis for this opinion, it is difficult to give it much weight.
129 Lisa submitted that the absence of this information within Mr Arthur and Ms Smith's statements and exhibited file notes does not mean that they did not obtain the Deceased's Will and conduct appropriate searches. However, it is for Lisa to demonstrate a prima facie case that the Deceased affirmatively had testamentary capacity. The absence of key relevant evidence does not assist Lisa's case.
130 Lisa also relied on Dr Niu's report, particularly her finding that the Deceased had testamentary capacity at the time Dr Niu conducted her examination. As I apprehend it, the issue for Lisa in seeking to rely on Dr Niu's report is that it was prepared in December 2017, more than two years after the Deceased gave instructions and executed her Codicil. Additionally, Lisa has submitted that although the Deceased had been diagnosed with dementia in December 2015 by Dr Ariathianto, dementia gets worse over time, not better. While seemingly based in common experience or common sense, there is no evidence before the Court to support that submission. Put simply, there is no medical evidence before the Court from which the Court could conclude that the type of dementia the Deceased suffered from universally follows a linear degenerative path, such that if she had testamentary capacity in 2017 she must have had testamentary capacity at the time she made her Codicil in September 2015.
131 Additionally, while Dr Niu conducted the Banks v Goodfellow test, it is completely unclear how Dr Niu satisfied herself that the Deceased had in fact identified all her assets or the full suite of people to whom the Deceased may have owed a moral duty. Dr Niu records that the Deceased identified her home as her asset and that she wanted to give her home to Lisa. In fact, the Deceased had significant other assets that she did not mention to Dr Niu. The Deceased told Dr Niu she did not want Hanna or Timothy to get her home, but failed to mention that Hanna is a significant beneficiary under the terms of her Will. These matters, coupled with the concerns articulated by Dr Niu about the Deceased's 'significant cognitive impairments', raise significant questions about the reliability of Dr Niu's finding that the Deceased had testamentary capacity.
132 Considering the whole of the evidence, I am not satisfied that Lisa has established a prima facie case that the Deceased had testamentary capacity at the time she made her Codicil.
133 As I have found that Lisa has not demonstrated a prima facie case, it is unnecessary for me to consider whether Perpetual Trustees has established a prima facie case to challenge the Grant on the basis of the Deceased's lack of knowledge and approval of the contents of the Codicil.
134 In the event that I am incorrect and Lisa has demonstrated a prima facie case, I would have found that Perpetual Trustees has established a prima facie case to challenge the Codicil. The preponderance of medical evidence, particularly from September and December 2015, more than provides a case for investigation. That evidence points to the Deceased having significant cognitive issues immediately before executing the Codicil culminating in her diagnosis with mixed Alzheimer's and vascular dementia approximately eight weeks after executing the Codicil. The evidence of the Deceased's neighbours, Mr Engleby and Ms Brown, corroborates the Deceased's cognitive issues and alcohol use in 2015. This evidence goes to the Deceased's capacity to know and approve of the contents of the Codicil. Additionally, the absence of evidence from Mr Arthur or Ms Smith of the steps either took to confirm the Deceased's capacity to understand the effect of the Codicil also provides something to go on.
135 It is also unnecessary for me to decide whether Lisa delayed in bringing her revocation application and whether any such delay would cause the Court to withhold its discretion to grant the application. I also note that this issue was not squarely referred to me for adjudication.
Perpetual Trustees' application to reopen its case
136 Finally, after the hearing on 9 December 2021, Perpetual Trustees filed an application to reopen its case to rely on documents exhibited to the affidavit of Angela Liaskos sworn 7 March 2022. Those documents consisted of certified extracts of the Heidelberg Magistrates' Court Register dated 4 March 2022, showing that Lisa had pled guilty to two criminal charges, including perjury and production of data with intent to commit a serious offence. Perpetual Trustees say that those charges relate to documents used in the VCAT proceeding.
137 I heard Perpetual Trustees' application on 22 March 2022. Perpetual Trustees submitted that the documents constituted fresh evidence which, if accepted, would probably affect the result of the case. According to Perpetual Trustees, the evidence was so material that the interests of justice required its admission. Perpetual Trustees noted that the fresh evidence related to submissions made by both Perpetual Trustees and Lisa about Lisa's falsification of the Deceased's Austin Hospital records in relation to the date of the Deceased MMSE (changing the date from 2015 to 2016). Perpetual Trustees said the fresh evidence was relevant in this proceeding not only to Lisa's credibility, but also to the reliability of Dr Niu's report.
138 Lisa submitted that Perpetual Trustees' application to adduce fresh evidence should be refused because the evidence could not rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, i.e. the Deceased's testamentary capacity and her knowledge and approval of the contents of her Codicil. Additionally, Lisa submitted that if the fresh evidence was relevant it would be relevant only to Lisa's credibility and therefore inadmissible.
139 I have decided that Perpetual Trustees' application should be refused for the following reasons. First, Lisa's offending occurred in the context of the VCAT proceeding in 2017, well after the Deceased made and executed her Codicil. Second, it appears to me that Dr Niu's report is of little assistance in determining the Deceased's testamentary capacity in September 2015. In any event, the most relevant part of Dr Niu's report is the section recording her results after conducting the Banks v Goodfellow test. It is not clear to me that any of that part of Dr Niu's report was in any way influenced by the error in the date on which the Deceased underwent the MMSE. Third, Perpetual Trustees could not rely on the fresh evidence only to attack Lisa's credibility. Finally, if Lisa had succeeded in demonstrating a prima facie case, Perpetual Trustees could have adduced the fresh evidence as part of the ultimate hearing of the proceeding.
140 I will dismiss the summons and hear the parties on the question of costs.
[1] Exhibit LS-04 of the affidavit of Lucy Smith affirmed 4 June 2021 (Austin Health Core Medical Assessment dated 20 September 2015).
[2] Ibid, exhibit LS-06 (letter from Dr M Al-Zaini of Sunrise Medical Centre to Austin Hospital dated 20 September 2015).
[4] Ibid, exhibit LS-13 (ACAS Assessment Outcome Report dated 24 November 2015).
[5] Ibid, exhibit LS-14 (letter from Dr Ariathianto dated 1 December 2015).
[7] It is unclear on the evidence whether the Deceased had three stepdaughters or two stepdaughters, as Dr Niu stated in the report that the Deceased referred to a third stepdaughter named 'Shelley'. As nothing turns on this issue, it does not require further investigation.
[9] [2019] VSCA 198 (citations omitted).
[11] [2015] VSCA 60; (2015) 46 VR 123 (citations omitted).
[12] Ibid, [166]-[179] (citations omitted).
Re McPhee; Perpetual Trustees Co Ltd
Lynch [2022] VSC 213
(2015) 46 VR 123