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[2025] VSC 287
General information, not legal advice.
Supreme Court of Victoria
2025-05-23
McDonald J
Original judgment source is linked above.
WILLS AND ESTATES - Testamentary capacity - Knowledge and approval - Challenge to will of the deceased - Testator with dementia - Testator made a bequest to the defendant equal to 2.5% of her estate - Will prepared by solicitor who was satisfied testator had testamentary capacity when providing instructions for preparation of will and also when the will was executed - Testator assessed for testamentary capacity six months after the will was executed by a medical practitioner who considered that testator did not have testamentary capacity - Significant cognitive decline during the six month period between execution of will and medical assessment of testamentary capacity - Court satisfied of testamentary capacity and knowledge and approval - Testator's will to be admitted to probate.
1 In this judgment, without any disrespect intended, I shall refer to the principal parties by their first names.
2 Charmian Louise Watt ('Charmian') died on 2 November 2020. She was 95 years of age. Charmian never married or had children. Prior to her death, Charmian executed a will on 18 October 2010. At the time of her death, Charmian's closest living relative was her niece, Rosemary Jean Laycock ('Rosemary'). Prior to the execution of the will, Rosemary had been appointed as Charmian's guardian and attorney pursuant to an enduring power of guardianship and enduring power of attorney executed on 12 July 2010.
3 Charmian was a fiercely independent woman. The hallmarks of her independence were her ability to continue driving well into old age and to also continue living independently at her home in Armadale. By a letter dated 23 September 2010, Charmian was advised by VicRoads that her driving licence had been suspended on medical grounds. At around the same time, Rosemary discussed with Charmian the prospect of her moving into permanent residential care. Charmian was very angry with Rosemary because she believed, correctly, that Rosemary had been involved in the suspension of her licence. Charmian was also very distressed at the prospect of being placed into a nursing home and was very angry with Rosemary when she raised the issue in September 2010.
4 In late September 2010, within days of being advised of the suspension of her licence, Charmian contacted a solicitor, Mr Michael Muir, and provided him with instructions for the preparation of her will. Under the terms of her will, Charmian's estate was divided into 20 parts. Nine of these parts were bequeathed to her second cousin, Denise Brookes ('Denise'). Nine parts of the estate were bequeathed to Denise's daughter, Cilla Brookes ('Cilla'), and Denise's sons, Sasha Brookes ('Sasha') and Simon Brookes ('Simon'). The remaining two parts, which equated to 10% of the estate, were bequeathed to Rosemary and her three sons. Consequently, Rosemary was bequeathed 2.5% of Charmian's estate. The relatively small bequest to Rosemary reflected Charmian's anger towards her at the time the will was prepared.
5 The inventory of assets and liabilities filed with the application for grant of probate recorded the value of Charmian's estate as being $1,487,788.64.[1] The size of the estate at the time the will was executed was of substantially more value. The inventory of assets and liabilities did not include the value of Charmian's residence in Armadale, which was sold by Rosemary on 16 November 2012 for $2,480,000.[2] The property was sold to fund Charmian's aged care. In addition to the value of the Armadale residence, it is common ground that Charmian had a significant share portfolio in October 2010, which was valued in excess of $2 million.
6 On 12 November 2020, Rosemary filed a caveat with the Registrar of Probates. By amended grounds of objection dated 24 September 2024, Rosemary contends that Charmian lacked testamentary capacity shortly before and at the time of executing the will. Rosemary also contends that Charmian did not know and approve the contents of the will and that it was signed in suspicious circumstances. If either of these grounds of objection are upheld, Rosemary will be the sole beneficiary of Charmian's estate on intestacy.
7 Charmian had been experiencing cognitive decline for several years prior to October 2010. Charmian was diagnosed with dementia on 15 September 2010 by Dr Simon Scharf and Dr Chris Moran.[3] Dr Scharf and Dr Moran were unable to classify the sub-type of dementia, but considered that it was likely that Charmian had an element of Alzheimer's disease with a component of vascular disease. Notwithstanding this diagnosis, when the will was executed on 18 October 2010, Charmian had testamentary capacity and knew and approved the contents of the will. Accordingly, the will dated 18 October 2010 will be admitted to probate.
The witnesses who gave evidence in the present proceeding
8 On 13 June 2023, Rosemary's husband Charles was appointed her litigation guardian. The evidence in support of the application for the appointment of a litigation guardian called into question Rosemary's ability to give evidence in the proceeding. Shortly after the commencement of the trial, two further affidavits were filed[4] which confirmed Rosemary's ability to give evidence.
9 Counsel for the defendant submitted that the weight to be given to Rosemary's evidence should not be diminished by reason of the appointment of Charles as her litigation guardian. I accept this submission. I found Rosemary to be a credible witness. In some respects Rosemary's direct oral evidence was inconsistent with statements attributed to her in the notes made by health practitioners in the period July 2010 to December 2010. Wherever there is such an inconsistency I have placed greater weight on Rosemary's direct oral evidence.
11 Rosemary gave evidence that the relationship between Charmian, Rosemary's father Randal Watt and their parents was very close.[9] Randal and Charmian were also close.[10] Charmian often required Randal's help around the house,[11] and Randal took Charmian to church on Thursdays.[12] Charmian had few other friends and kept to herself.[13]
12 According to Rosemary, Charmian was 'part of our family' and would attend every family occasion.[14] This included Rosemary and Charles' wedding[15] and Rosemary's sister Elizabeth's funeral.[16] Charmian would also attend the family Christmas functions with Rosemary and her family[17] and other family birthdays.[18] Rosemary recounted a family tradition around Mother's Day which would celebrate Charmian's birthday, Nicholas' birthday and Mother's Day over a series of events.[19] Charmian also attended Rosemary's sons Lachlan, Nicholas and Rupert's 21st birthdays.[20] Charmian attended Nicholas' wedding.[21] Charmian would occasionally take Rosemary's family to restaurants for dinner.[22]
14 After Randal went into care in about 2000,[26] Rosemary was the sole provider of assistance to Charmian.[27] She would visit Charmian multiple times a week,[28] and would pay Charmian's bills from Charmian's account.[29] Rosemary had keys to Charmian's house and this remained the case whenever the locks were changed.[30] Rosemary would take Charmian to medical appointments.
15 Rosemary gave evidence that in about July 2010 Charmian's home was 'chaotic' - papers were strewn around, dirty clothes were jammed in the laundry chute[31] and the kitchen was untidy.[32] Rosemary considered that at this time Charmian was experiencing paranoia and anxiety.[33] Rosemary accepted that she was not qualified to make an assessment of whether Charmian was, in fact, paranoid.[34] Rosemary's evidence was that Charmian would refuse to let people enter her house.[35]
18 Rosemary placed Charmian in a Bupa nursing home in October 2011 after Charmian was found walking the streets in her nightgown and was admitted to hospital.[40]
20 Charles first met Charmian in 1970,[44] when Charmian visited Rosemary after Rosemary's sister's death.[45] He said that he then met her at Charmian's mother Louise's birthday party.[46] From this point, he went to Randal and Randal's wife Jean Watt's house for their families' Christmas functions and Charmian 'was always there'.[47]
21 Charles gave evidence that Charmian was at most major functions,[48] including his and Rosemary's wedding,[49] Elizabeth's funeral[50] and Charmian's mother Louise's birthday parties.[51] Charmian attended Nicholas' wedding[52] and the 21st birthday party for each of Charles' sons.[53] Charles recalled Charmian visiting the hospital when his and Rosemary's sons, Lachlan, Nicholas and Rupert, were each born.[54] Charmian attended their christening and would regularly visit to see them.[55] Charmian would call each of the three sons by nicknames: Lachlan was 'Lachie', Nicholas was called 'Chicky' and Rupert was called 'Rupy'.[56]
24 As to Charles' relationship with Charmian, he 'never had a cross word' with her[61] and would sit next to her at functions.[62] However, he did not think Charmian 'suffered fools'.[63] As Charmian was intelligent, they would have good conversations together.[64] Charmian wrote to Charles after Charles' mother passed.[65] In Charmian's later years, she become 'more difficult' and would say inappropriate things which would cause controversy.[66]
25 Charles gave evidence as to Rosemary and Charmian's relationship. He said that they were 'very close' and that although Charmian 'annoyed' Rosemary, Rosemary was always good with her.[67] He said that there was no 'real friction' between Rosemary and Charmian and that Rosemary was always nice to Charmian and would help in any way she could.[68] According to Charles, Charmian organised formal family photographs of the Laycocks and Rosemary's parents.[69]
26 Charles was taken to a series of photographs. They included photographs of:
(i) Rosemary and Charmian at various points in Rosemary's life;[70]
(ii) Rosemary, Rosemary's sister Elizabeth and Charmian at Falls Creek;[71]
(iii) Charmian at various family Christmas lunches;[72]
(iv) Charmian holding Lachlan and Nicholas as infants;[73]
(v) Charmian, Rosemary, Rupert and others at Nicholas' 2010 wedding;[74]
(vi) Rupert and Charmian, and Charmian and Rosemary, in 2012;[75] and
(vii) Rosemary and Charmian the day after Rupert's wedding in approximately 2015.[76]
28 Sasha gave evidence about the relationship between Alice and Charmian. They went on a trip to the United Kingdom by ship between 1948 and 1949.[80] He was taken to record indexes from incoming passenger lists sourced from ancestry.com that showed Alice, Denise and Charmian's arrival in London.[81] Alice, Denise and Charmian went because Alice's husband Grant Pringle was attending a training course for the Royal Australian Navy in England.[82]
29 Sasha had located letters written by Denise to her grandmother about the trip.[83] Sasha was also taken to a series of photographs of his family. The first was a photograph of Charmian, Denise and his uncle Julian Pringle.[84] The second was a photograph of Charmian and other members of the extended family taken at Alice's 90th birthday.[85] The third was a photograph of Sasha and Denise at the same function.[86] Sasha was also taken to a Christmas card Charmian sent to Denise in 2008.[87]
30 Sasha said that his earliest memory of Charmian was from the early 1980s when he was 10 years old. Charmian invited Sasha and Denise to the Treble Clef Restaurant at the Arts Centre for lunch before Christmas.[88] He said that from about that time he would see Charmian once a year during the Christmas period for a Christmas gathering.[89] It was a tradition that a member of their family would host Christmas and invite members of the extended family including Charmian.[90] It was often Alice or her siblings who would host but not Denise.[91] He said that he would have received at least one Christmas or birthday card from Charmian but never sent any such card to Charmian.[92]
31 Sasha gave evidence that in the early 2000s he attended family functions with Charmian. He attended a family wedding that Charmian also attended.[93]
32 His evidence was that in around 2005 or 2006, he went to a cinema in Balwyn to watch 'The Da Vinci Code' with Charmian, Cilla and Denise. He said that it was a 'special occasion' and that Charmian had driven herself to the cinema to meet with Sasha and his family.[94]
33 In December 2007, Charmian, Cilla and Denise attended Sasha's dance showcase at Dance Dynamics.[95] Sasha also gave evidence about correspondence from Giselle, the former wife of Alice's brother Denison Deasey, sent to Charmian and a reply from Denise.[96] Both Sasha and Charmian attended Alice's funeral in 2009.[97] Sasha became aware he was a beneficiary of Charmian's will in December 2020.[98]
35 Simon gave evidence that his earliest memory of Charmian was Christmas at his great-aunt Louise's house in Kew with her husband Guy Bakewell.[102] Louise is Alice's sister.[103] He said that this was a family tradition that continued until about 1975. Charmian and her mother Louise Watt were always present at family Christmas and asking about his and his siblings' schooling.[104] They would give presents at Christmas and Denise and Alice would be present.[105]
37 After Guy died in about 1975,[109] the family Christmas functions shifted to Alice Pringle's house.[110] Charmian would attend after visiting the Watt family's Christmas party.[111] Charmian continued to give Simon and his siblings presents.[112] This continued until 1985.[113] After 1985, the Christmas parties shifted location again to the northern suburbs of Melbourne[114] to be hosted by Alice's siblings and their children.[115] Simon continued to attend, as did Charmian.[116]
38 Simon was taken to a series of photographs. They included a photograph of Alice and Charmian at Alice's 90th birthday function.[117] The function was at Alice's Point Lonsdale house.[118] Another photograph showed Charmian and Denise at a family wedding in Montrose.[119] He recalled that at the function Denise and Charmian 'stuck together' because there were many people they did not know and had lunch.[120]
44 Cilla gave evidence that Alice and Charmian were close and that Charmian would have known Alice for all of her life.[136] She also gave evidence that her mother Denise and Charmian were close.[137] Although they were second cousins, Denise being the eldest and Charmian as the youngest, they were 'part of the same' generation.[138] She recalled that Charmian would often speak of Denise and, in her view, they would seek each other out and spend time together.[139] She thought that they loved each other, were like 'old friends' and that Denise looked up to Charm.[140]
45 Cilla described Charmian as her 'close friend'.[141] Cilla's earliest memory of Charmian was seeing Charmian at the house of her great-aunt Louise in about 1974 or 1975.[142] She remembered Charmian's warmth and feeling calm at the house.[143] She saw Charmian every Christmas.[144] The Deasey family, which included Charmian, had Christmas functions at Louise's house. Once Guy passed away and Louise moved houses, the yearly Christmas event moved to Alice's house.[145] In the 1990s, the annual Christmas party moved to other members of the Deasey family's houses[146] and she continued to see Charmian at the Christmas parties.[147] She recalled receiving presents from Charmian including a Kosta Boda glass bird Christmas decoration in a red box.[148] Cilla cherished this for a number of years.[149] Cilla also recalled Charmian gifting Sasha a t-shirt which he 'wore to death'.[150] Sasha receiving a new t-shirt was of note because Cilla's family was 'not a family of ... great means' and they had 'hand-me-down op shop clothes'.[151]
48 After Cilla became a barrister in 2007, Cilla began to see Charmian independently of Denise.[156] Cilla would have light dinner or sandwiches at Charmian's house on the way home from work or go to shows with her.[157] This was pre-organised.[158] They saw Miss Saigon in approximately 2007 or 2008,[159] Wicked in 2009[160] and Swan Lake.[161] The activities they did together were 'old fashioned'.[162] By the middle of 2009, Cilla was speaking to or seeing Charmian once every three weeks.[163] This pattern continued for 10 months to a year[164] and finished around 2010.[165] During this period Cilla considered that Charmian 'appeared to be happy'.[166]
49 Around 2010, Cilla noticed that Charmian had some difficulties with her memory and that the kitchen table was 'a bit messy',[167] but Cilla was not concerned for her safety.[168] Charmian told Cilla of her annoyance and frustration with Rosemary[169] and Cilla's observation was that Charmian was 'worried'.[170] Cilla thought that Charmian was annoyed with Rosemary because Rosemary kept taking Charmian to see doctors.[171] Charmian asked her for the name of a solicitor and Cilla gave her the details of Mr Muir.[172] Cilla did not wish to discuss with Charmian what was causing her to be worried. She felt it was appropriate for Charmian to discuss with Mr Muir any matters which were causing her to be concerned.[173] Cilla could not recall Charmian telling her that she wanted to make a will.[174] However, it is clear from a file note of a telephone conversation between Cilla and Mr Muir on 29 September 2010 that Charmian had told Cilla that she wanted to make a will.
50 Cilla had a sense of Charmian's cognitive decline in late 2010 or 2011 because Charmian made critical comments of Rosemary's children and Simon and Sasha which did not 'seem right'.[175]
51 By the second half of 2011, Cilla had moved to Abbotsford and Cilla saw Charmian less frequently.[176] Cilla became aware that Charmian had entered a nursing home shortly after Charmian had entered.[177] She visited Charmian late in 2011 and again in 2019.[178] Cilla's evidence was that when she visited Charmian in 2019, she brought a digital radio and talcum powder[179] for Charmian and that Charmian did not recall who she was.[180]
53 Cilla also gave evidence that Charmian never told her that she had locked herself out of the house, that she thought her handbags had been stolen and had reported the theft to the police, or changed the locks.[186] At first she could not recall if Charmian had told her that Charmian had been diagnosed with dementia,[187] but then clarified that Charmian had not.[188] Cilla was aware that Charmian was having problems with and seeing doctors about her memory,[189] but did not personally observe anything that led her to that conclusion.[190]
54 Ms Hall was Charmian's carer at Bupa Caulfield[191] for nine years.[192] She was paid and employed by Rosemary.[193] While Charmian was under her care, she had about 10 hours a week of contact and saw her in the morning and night Monday through Friday.[194] In about 2015, Charmian entered the dementia ward.[195]
55 She described Charmian as a 'good friend' and said that Charmian was 'naughty' when she arrived in the nursing home.[196] Ms Hall said that she would take Charmian on excursions to Puffing Billy, to visit Rosemary, to visit Randal and to shops and galleries.[197] Her evidence was that she took Charmian to visit Rosemary at Rosemary's Toorak and Mount Martha residences.[198]
56 Ms Hall said that Charmian would talk about her life and her mother, Randal and Rosemary, but could not recall[199] Charmian talking about the rest of the family.[200] She said that Rosemary and Charles would visit Charmian twice a month[201] but otherwise no one visited Charmian.[202] Her evidence was that Charmian never mentioned Denise Brookes,[203] but she recalled Cilla visiting Charmian twice in September 2019.[204] She said that Cilla's visit upset Charmian.[205]
57 Mr Woolcock is a solicitor.[206] He was admitted in 1974 and primarily practises in wills, estates and property.[207] He is a sole practitioner.[208] Mr Woolcock was Randal Watt's solicitor.[209] Rosemary was appointed Randal's attorney. Consequently Mr Woolcock had significant dealings with Rosemary[210] for a period of three or four years.[211]
58 Mr Woolcock was the solicitor that Rosemary contacted to prepare Charmian's power of attorney.[212] Mr Woolcock took instructions from Charmian on 12 July 2010.[213] He saw Charmian alone.[214] That included completing a questionnaire which contained the note that Charmian had said that Rosemary was the 'most wasteful person on earth'.[215]
59 Mr Muir is a retired solicitor.[216] He was admitted to practice in 1977[217] and retired at the end of 2022.[218] Prior to his retirement, he was a partner at the law firm Darrer Muir Fleiter Lawyers.[219] He was a specialist in business and commercial law and most of his clients were local business owners.[220] He was often asked by clients to prepare documents like wills or powers of attorney.[221]
60 Cilla called Mr Muir on 29 September 2010 to say that Charmian needed to prepare a will.[222] Cilla had previously been employed by Darrer Muir Fleiter Lawyers.[223] Cilla had not worked directly with Mr Muir but he knew her from her time employed with his firm.[224] They had no contact after Cilla left the firm.[225]
62 Mr Beer was a solicitor practising at Darrer Muir Fleiter Lawyers in 2010.[228] He mostly practised in property law.[229] With Mr Muir and Ms Karen Keizer, he attended Charmian's Armadale residence when she executed the will. Mr Beer witnessed the execution.[230] He had no specific memory of the event.[231]
65 He had no independent recollection of meeting Charmian.[241] He assessed Charmian on 24 November 2010 and 13 December 2010 and completed a comprehensive geriatric assessment.[242] He produced a report about Charmian's cognitive health. [243] On 4 April 2011, Dr Fonda assessed Charmian again and produced an updated report.[244] On 26 April 2011, Dr Fonda assessed Charmian's testamentary capacity and determined that she did not have testamentary capacity.[245]
66 In September 2024, he produced an expert report retroactively assessing Charmian's testamentary capacity in October 2010.[246]
68 Dr Wright was Charmian's general practitioner over many years.[250] Dr Wright said that it was her belief that Charmian attended Wynlorel because Dr Wright had begun to work there after Stonnington Medical Centre moved location.[251] On 12 July 2010, Dr Wright witnessed the signing of the power of attorney drafted by Mr Woolcock.[252]
69 Dr Moran is a geriatrician.[253] He began practising as a doctor in 2004 and as a geriatrician since 2012.[254] In 2010, he worked for the Cognitive, Dementia & Memory Service ('CDAMS')[255] at Caufield under the supervision of Dr Simon Scharf.[256] He had no independent recollection of assessing Charmian.[257]
The events leading up to the execution of the will
Charmian appoints Rosemary as her guardian and attorney
70 On 8 July 2010, Rosemary sent an email to Mr Woolcock with the subject 'Charmian Watt Power of Attorney':
Dear Warren,
Re: Power of Attorney for Charmian Watt
As discussed with you today, this is the information you require for the Enduring Power of Attorney, and Enduring Power of Guardianship for my Aunt.
She is a spinster & 86 years old, and I am her only niece & next of kin, as my Father sadly has dementia and is no longer able to fulfil the role. She has given her consent to appoint me as her Enduring Power of Attorney and Enduring Power of Guardianship.
Her full name is:
Charmian Louise Watt
DOB: 16/05/1925
Address: 5 Huntingtower Rd Armadale Vic 3143
Phone: 9822 7168
Her General Practitioner is:
Dr Leslie [sic] Wright,
1368 High Court,
Malvern, 3144 Tel: 9509 4488
I think Dr Wright will be prepared to witness the documents, and have made an appointment to do so with my Aunt.
My details are:
Rosemary Jean Laycock
1 Palermo Street
South Yarra 3141
Tel: 982703703
Mobile: 0407566472
Thank you for your assistance with this matter.[258]
71 Rosemary's father Randal had been a client of Mr Woolcock's firm.[259] Rosemary had a power of attorney for her father, and it was through dealing with Rosemary as attorney for her father that Mr Woolcock had a connection with her.[260] Mr Woolcock estimated that he had known Rosemary for three or four years prior to 2010.[261]
Mr Woolcock: I can't recall what the conversation was about other than that it's a correct reference to a previous phone call. She gave me some history, because I asked for some background before I could manage a power of attorney and essentially she was fulfilling that information for me. I'd never met Charmian and, therefore, I took a view that I needed somebody who knew her for some period which was Dr Lesley Wright which she practised at the same practice as my own general practitioner.[264]
73 Mr Woolcock presumed that it had been his suggestion to Rosemary that Dr Wright witness the signing of the power of attorney:
Mr Woolcock: I can only presume so, because that was the resulting email from Rosemary that in my previous conversation, I must have spoken to her about the fact that I didn't know Charmian and it was impossible for me to give any sort of history. I'd have to meet her several times and it would take time and I had no idea what medication she was on. I had no idea whether she's good in the morning, good in the afternoon, or any variation because those things do affect somebody's clarity of mind.[265]
74 Mr Woolcock gave the following evidence regarding what had happened after he received the email:
Mr Woolcock: Essentially, I opened a file or had my wife open a file and from that, anticipated that she'd be seeing me at some stage and that Dr Lesley Wright would be the one giving evidence, which I couldn't fulfil, because I didn't know Charmian at all. So as a practical exercise on capacity issues, I wasn't in the a position to know the full background, and part of the previous conversation, I'm presuming, was, 'We need somebody who knows - you, Charmian, personally - a medico', and that's why that email followed. Then when the file was opened, an appointment was made. I don't have a recollection of that other than it was made on the day that the power of attorney was signed. In anticipation of that, and noting the difficulties of potentially dealing with somebody I'd never met before, and clearly somebody of age, I took the view that I would prepare copies of documents that I could hand to her and to Rosemary, and that I could go through the power of attorney with Charmian, so she knew what document we were dealing with, and at the same time, I was keeping a firm eye on what I'd call red flags for somebody who didn't have capacity to understand instructions. I wasn't testing capacity for whether she knew what she was doing. Rather, that she knew she was giving instructions, and that those papers that I had a copy of, and I discussed - I presume I discussed, because I had one copy for her, one copy for me, and that I went through the - I think it's called 'take control' or something, which set out what powers of attorney were and these particular powers of attorney at the time, and I can't recall going through them, but specifically that would have been the arrangement that I had to explain to her what she was doing and then the question of whether she inwardly understood that was up to the doctor.[266]
75 Rosemary gave evidence that she had no recollection of sending the email.[267] Rosemary however stated that Charmian had asked her to arrange for a power of attorney and she made the appointment with Mr Woolcock.[268] Rosemary stated that it was Charmian who had suggested a power of attorney be executed and herself appointed as attorney.[269]
76 On 12 July 2010, Mr Woolcock had a meeting with Charmian at his house. Mr Woolcock stated that he had an independent recollection of meeting with Charmian.[270] Mr Woolcock recalled:
Mr Woolcock: [S]he came to my - my house and my recollection is that she came up to my office and I took instructions from her in the office, alone, and that the notes were all that I took and the take control, as far as I recall, would have been used. I don't know for sure, but [it] would have been part of the discussion of explaining the details of a power of attorney.[271]
77 Mr Woolcock stated that there had been no one else in the meeting apart from himself and Charmian.[272] Mr Woolcock stated that Rosemary would have brought Charmian to his house, he had a short discussion with Rosemary and Charmian in the front foyer, and Charmian came up to his office alone.[273] Mr Woolcock stated he was confident he would have only spoken to Charmian alone during the meeting as this was always his practice.[274]
78 During the meeting with Charmian, Mr Woolcock filled out a document titled 'Testamentary Capacity'.[275] Aside from this document and the answers to the questions outlined below, Mr Woolcock did not take any other notes during the meeting with Charmian.[276] Mr Woolcock explained the purpose of this document:
Mr Woolcock: [I]t's used for general instructions to start a power of attorney and in this case, it was part of the initiation of making sure she understood what a power of attorney was. Her brother had apparently been previously power of attorney. I don't recall that, but - and I don't know who prepared that particular power of attorney, but I just don't recall it, and that Charmian was looking to have Rosemary as her power of attorney. This was literally a checklist that I would use in conjunction with the notes of take control.[277]
79 Mr Woolcock explained why the document was titled 'Testamentary Capacity':
Mr Woolcock: Because they're usually related to a will and, as I say, usually I'd be doing a will and a power of attorney together. This wasn't the case. So it was a test or, sorry, a mind-jogging exercise to make sure that the client, if she was doing a will, or if I was witnessing a power of attorney, that these would be the things that I would discuss with the client.[278]
80 Question 1 of the document stated 'Does the person know the document is a Will or Power of Attorney?'.[279] Mr Woolcock had written 'Later' in the first column and a tick in the second column. He explained:
Mr Woolcock: The will is the first reference, so that has got a note, 'Later', so that we weren't doing a will then. The second was a tick to show that I was satisfied that she knows that the document is a power of attorney and that, as I say, was with conjunction with the take control notes.[280]
82 The second question stated 'Does the person know their assets?'.[283] Mr Woolcock had written 'Home', 'Golf', 'Chess' and 'Shares'. He explained:
Mr Woolcock: Golf, I'm not sure whether or not it related to her playing golf, having golf - debentures in a golf club, shares and presumably chess is the method of dealing with shares, but that's all I've written and that's all I can recall.[284]
83 In answer to the question 'Describe your health and personal circumstances', Mr Woolcock had written 'No prob', 'No medication', 'Doctor', 'Dog', 'Mr Pip' and 'walks twice a day'.[285] Mr Woolcock explained:
Mr Woolcock: I wrote 'No [problems]' or 'probs'. She's not on medication, 'No medication'. The doctor would be dealing with that. She has a dog called Mr Pip apparently; and walks the dog twice a day, so she was able to get around.[286]
85 Finally, in answer to the question 'Why have you chosen X', Mr Woolcock had written 'closest' and 'the most wasteful person on earth'.[289] He explained '"[c]losest" and I presume I meant the closest relative, closest person, and then the reference, "[t]he most wasteful person on earth"'.[290] Mr Woolcock had no recollection of why he made the latter note, and could only presume he wrote it because Charmian had said it.[291]
86 When asked whether it had struck him as odd that Charmian was appointing as her attorney the 'most wasteful person on earth', Mr Woolcock stated:
Mr Woolcock: I don't have that power. She's instructing me. I don't have - that's not my role.
His Honour: That's not your role, no?
Mr Woolcock: I presumably asked her about it, but I've got - I didn't make a note, other than the fact that that was a direct quote.[292]
87 Mr Woolcock further stated that he had no concerns with Rosemary being appointed attorney:
Mr Woolcock: Rosemary had been managing - as far as I was aware - Randall [sic], her father's affairs for some years. I just can't remember how long, but we were dealing with restaurants, we were dealing with a whole lot of different matters, and as far as I was concerned, Rosemary and Charles, her husband, managed those quite well and I saw no problem.[293]
89 Other documents contained in Mr Woolcock's file included further copies of the 'Take Control' document which were provided to Dr Wright and Rosemary,[297] documents titled 'Information for witnesses' and 'Information for attorneys' which were provided to Dr Wright and Rosemary,[298] the original executed enduring financial power of attorney and guardianship,[299] and a document titled 'When a client's capacity is in doubt' by the Law Society of New South Wales.[300]
90 Rosemary gave the following evidence about the meeting:
Rosemary: [W]hen we were there we sat in his office and discussed the power of attorney and the power of guardianship. And she agreed to both. And he said he would prepare those. And then she said to my aunt, 'Have you thought about making a will?
His Honour: Yes?
Rosemary: He said to me - or asked me, 'Would you please leave the room?
His Honour: Yes?
Rosemary: So I did. And she - he had a talk to her about making a will.[301]
91 Mr Woolcock gave evidence that over his years in practice, he would make around 30 wills and powers of attorney each year.[302] His understanding at the time in relation to the test of capacity for making a power of attorney was that 'a person needed to know what they were dealing with'.[303] In contrast, Mr Woolcock explained his understanding of the test for testamentary capacity when making a will as follows:
Mr Woolcock: Usually it - it's different insofar as the items that have previously been mentioned, which you go through a checklist and that would have been significantly different and, again, I would have taken a great deal more time. I only had a very short period with her on this power of attorney. So, from my point of view, it would have been a great - it would have been an hour's worth of conversation.[304]
92 Mr Woolcock stated that he had been satisfied that Charmian had understood the concept of a power of attorney and what it does after going through the 'Take Control' document with her:
Mr Woolcock: I think State Trustees put out a document called 'Take Control' in those days and that was the document that I would have gone through, as far as I'm aware, because that was a simple way of explaining and going through heading by heading what the power of attorney does, and if she understood that concept, I was happy with that.
Mr Antill: Yes?
Mr Woolcock: And clearly I was, because I let her take the will away - the power of attorney away, with the one exception that I wrote Dr Wright's name and address in as the doctor in case something changed and somebody else ended up by witnessing, I wanted her doctor that she'd had for whatever years to be the witness, not a local who dropped in.[305]
93 Mr Woolcock stated that nothing during the meeting with Charmian had raised any red flags as to her ability to make a power of attorney. He stated:
Mr Woolcock: No, not at all. On the contrary. When she made the reference to Rosemary being the most - well, the comment that she made, it struck me as pretty in tune with what she perceived Rosemary to be. Now, she would have had dealings with Randall [sic] and Rosemary's dealings with him, so I don't know any of that history. It's just a comment that struck me as a fairly lucid comment.[306]
Mr Woolcock: [D]ementia to me is a fluctuating. Sometimes they've got it and sometimes they haven't, and it's an up and down situation. It can reflect on early morning, dehydrated, not fed, all of those things can affect the element of what they understand, and I was satisfied that she understood what she was doing.[309]
96 Following the meeting with Mr Woolcock on 12 July 2010 at his house, Rosemary and Charmian attended Wynlorel and saw Dr Wright.[312] Charmian executed an enduring financial power of attorney and a guardianship. Charmian appointed Rosemary to be her attorney and guardian. Both documents were witnessed by Dr Wright and Maria Giuseppina Boccabella, a medical receptionist at Wynlorel, on the same day. Both appointments were accepted by Rosemary and statements of acceptance were signed by Rosemary on the same day.[313]
97 Dr Wright gave evidence that she had no recollection of the meeting with Charmian on 12 July 2010 aside from her notes.[314] Dr Wright's progress note of 12 July 2010 recorded:
[D]iscussion re powers of attorney - in view of losing keys and handbags and becoming quite distressed - felt burglars were coming into her house
[W]ants Rosemary to be her financial and medical power of attorney - understands the implications fully of both - that Rosemary could if need be sell her house and put her in a home etc and make medical decisions where she was not able
[N]ot taking her medication as has not had scripts filled - will do so today.[315]
98 Dr Wright stated that these notes were of her witnessing the power of attorney on 12 July 2010 and record what she told Charmian at the time.[316] Dr Wright had previously witnessed powers of attorney, but only a couple times a year.[317] Dr Wright explained her understanding of her role when witnessing someone signing a power of attorney:
Dr Wright: I think I had two roles; one role was to make sure that she understood what she was signing and what the implications of that were. And the other one was to witness her signature.[318]
99 Dr Wright had made sure Charmian had understood what she was signing by 'asking her what she understood about it and challenging her with questions about "[w]ell, it may mean this and it may mean that".'[319] It was likely Rosemary had been present during this discussion.[320] Dr Wright had not felt any 'undue pressure' and rather recalled there being a 'warm understanding between Rosemary and Ms Watt'.[321] Dr Wright was satisfied that Charmian had sufficient capacity to understand the documents.[322]
Charmian engages Michael Muir to prepare her will
100 On 29 September 2010, Mr Muir received a telephone call from Cilla. Mr Muir's file note of his discussion with Cilla is as follows:
1. Cilla Brookes rang and told me that she would like to introduce to me her Mother's second cousin who name is Charmian Watt who needs to prepare a Will. She is about 84 or 85 years of age, has never been married and lives in Armadale.
There is some suggestion that she has early signs of dementia.
It was agreed that Cilla would get Charmian to call me and I would catch up and take her instructions.
2. Charmian rang and it was agreed that I would meet her at her house at 5 Huntingtower Road, Armadale on Friday at 10.30am. Charmian's phone number is 9822 7168.[323]
The reference in the file note to 'Friday at 10.30am' is a reference to Friday 1 October 2010.
101 Mr Muir gave evidence that prior to the telephone discussion on 29 September 2010, he had not had any contact with Cilla since she had ceased working at his firm in around 2001.[324] The file note of 29 September 2010 recorded two separate telephone calls: one with Cilla and then a subsequent call with Charmian.[325] Mr Muir made the note about dementia because he understood that it is necessary for a will to be made and signed by a testator who understands what the document is all about and that the document is consistent with his or her wishes.[326]
102 Mr Muir was questioned as to whether he was concerned by the fact that he had never met Charmian and had no knowledge of her, but was being asked to prepare a will for her. He responded as follows:
Mr Muir: It was a concern that was addressed by the discussion I had when I actually met up with her, and that's referred to in the other memo of the attendance at her home ... it was during that discussion that I formed the impression that she had adequate testamentary capacity to proceed with the will.[327]
Charmian provides Mr Muir with instructions to prepare her will
103 On 1 October 2010 at 10:30am, Mr Muir went to Charmian's home to take her instructions for her will.[328] Mr Muir had no recollection of the meeting on 1 October 2010 other than recalling driving to Charmian's house.[329] Mr Muir's file note dated 1 October 2010 ('1 October Note') is set out below:
I attended Charmian Watt's home at 5 Huntingtower Road, Armadale.
During the start of our discussion Charmian and I had a general discussion about her background and how she had come to live in Huntingtower Road. Various other issues then flowed from that discussion and it was during this time that I formed the view that Charmian had more than adequate testamentary capacity. Charmian seemed to fully understand the concept of Wills, the role of an executor and the need for the selection or nomination of beneficiaries of her estate. Charmian also gave me a brief description of her assets which she said were confined to the property in Huntingtower Road, a portfolio of shares which had dropped in value in recent years and money in some bank accounts.
My view about Charmian's testamentary capacity was enhanced during the balance of my meeting during which I discussed in greater detail the structuring of her Will.
Charmian gave me instructions to prepare a draft Will and in this regard she instructed as follows:-
Her full name is Charmian Louise Watt.
Her preferred occupation or description is retired.
She would like her late cousin's daughter Denise Brookes and Denise's daughter Cilla Brookes to be joint executors of her estate. I asked Charmian if Denise and Cilla had middle names and she said that she didn't know and suggested that I contact Cilla.
She would like the principal beneficiary of her estate to be Denise and after some discussion she said that she would like 45% of the estate to pass to Denise.
She would like 15% of her estate to pass to Cilla.
She would like 15% of her estate to pass to Denise's other daughter Sasha. She said that she was uncertain as to whether Sasha had a middle name.
She would like 15% of her estate to pass to Denise's son Simon. Once again she said that she didn't know if Simon had a middle name.
She would like the remaining 10% of her estate to pass to Rosemary Laycock and her three sons. She said that she couldn't remember their names and asked if I could get the details from Cilla.
I said that I would get a draft Will prepared and sent to her for her approval.[330]
104 Mr Muir gave evidence that it had been his usual practice to take instructions for a will in a face-to-face meeting with a client, held either at his office or at the home of the client. He was 'very uneasy' about preparing a will based on instructions given via telephone.[331] Mr Muir preferred to meet clients face-to-face as he believed people communicated better face-to-face.[332]
105 On average, Mr Muir had made 20 - 40 wills each year during his time at Darrer Muir Fleiter Lawyers.[333] Mr Muir gave the following evidence as to his usual practice when taking instructions for a will:
Mr Muir: I would always commence by obviously asking the client or clients what they were meeting with me about and if they were to say, 'We would like to prepare', or, 'I would like you to prepare a will for me', I would then give an explanation: 'Okay, we need to talk about what a will does, what's it all about', and I would explain that side of things with the client. Then I would talk about the need to appoint an executor or executors and I would explain to the clients or client what the role of the executor or executors is. Then I would talk about the assets of the client. So I'd have a bit of an understanding of what the estate that would ultimately fall in to this will, what those assets are, and the client would say, well, there's a house, or there's shares, or there's - whatever there might be. So I would discuss that with the client and then that would set the background when I could then say, 'Okay, who is the executor going to be, or executors, who are they going to be? And who are the beneficiaries that you have in mind?', and the common answer for family clients was, 'Well, if mum dies' or the dad dies or the non-dad survives, it will be the survivor will be the beneficiary and the sole executor, and if both mum and dad pass away, then it will be, perhaps, depending on the age of the children, the children, or a close relative. They would be the executor and the beneficiaries would be the children, and we'd talk about - what about the age of these children, if they're not adults at the time of the death of both of you, how would you set up the wills in those circumstances and we would talk about the assets of the trust being held by the executors on trust for the children until they got to the age of 20, 25, 30, whatever that suited. So there'd be a general discussion with the clients about that possibility.[334]
106 When dealing with elderly clients in particular, Mr Muir accepted that this would be a 'red flag'[335] and stated that he would 'always be more cautious':
Mr Muir: I would always be more cautious about taking instructions from an elderly person. I would want to be fully satisfied that the elderly person, the elderly client, understood what I was talking about when I say, 'Who's going to be the executor? Who's going - who are the beneficiaries going to be? What are your assets?', and so forth. I would want to be fully satisfied that the person providing me with the instructions fully understood what I was talking about.[336]
107 Mr Muir gave evidence about how he would satisfy himself that a client had testamentary capacity:
Mr Muir: During the discussion I was just talking about, it would soon become fairly evident whether or not the clients knew what I was talking or what I was questioning them about. And if I detected some hesitation or an inability to answer a question, I would hone in on that question, and see if I could flush out an answer or deal with it in some other way, but that's how it would happen, if that makes sense.[337]
108 Mr Muir explained his understanding of the test for testamentary capacity as at October 2010:
Mr Muir: The test is to quiz the client about the person's personal things like name, address, family, assets, the role of executor, the role of beneficiaries, the division of the estate. All of that discussion, as referred to in the relevant memo, all of that discussion cemented in my mind that this client did have sufficient capacity to make a will, because she understood the key ingredients of the document.
Mr Antill: So your understanding about whether someone has sufficient testamentary capacity is whether they understood the key ingredients of the document?
Mr Muir: Well - yep.[338]
109 Mr Muir explained the 'key ingredients' as being:
Mr Muir: Executor or executors, beneficiaries, they're the two as - what I see is the essential and basic information that needs to be included in a will.[339]
110 Mr Muir did not believe he was aware as at October 2010 of anything else about the test for testamentary capacity other than whether the person 'understood the key ingredients of the document'.[340]
111 A number of propositions were then put to Mr Muir, based on the absence of certain information in the 1 October Note, to the effect that he had not noticed or asked Charmian about certain matters during the meeting on 1 October 2010.
112 First, it was put to Mr Muir that there is no record in the file note about whether Charmian was wearing a hearing aid or had any difficulty with her hearing. Mr Muir accepted this.[341] Mr Muir also accepted that had he noticed Charmian was wearing a hearing aid or had difficulty with her hearing, that would have been important information he would have included in the file note.[342]
113 Second, it was put to Mr Muir that there is no record in the file note of him asking Charmian whether she had previously made a will, and that such information would have been relevant in assessing her testamentary capacity. Mr Muir accepted these propositions.[343] Mr Muir accepted that had he asked Charmian if she had previously made a will, her response would have been important information that he would have included in the file note.[344] Mr Muir also accepted that the Court could infer that he did not ask Charmian in the meeting on 1 October 2010 about whether she had made a previous will.[345]
114 Third, it was put to Mr Muir that there is no record in the file note of him asking Charmian whether she had a power of attorney organised or wished to have a power of attorney drafted, and that such information would have been relevant in assessing her testamentary capacity and in relation to who Charmian may wish to appoint as her executor. Mr Muir accepted these propositions.[346] Mr Muir accepted that had he asked Charmian whether she had a power of attorney, her response would have been important information that he would have included in the file note.[347] Mr Muir also accepted the Court could therefore infer that he did not ask Charmian in the meeting on 1 October 2010 about whether she had a power of attorney.[348]
115 Fourth, it was put to Mr Muir that there is no record in the file note of him asking Charmian about whether she had signs of dementia or a diagnosis of dementia and when and why such diagnosis was given, and that such information would have been relevant in assessing her testamentary capacity. Mr Muir accepted these propositions.[349] Mr Muir accepted that had he asked Charmian these questions, her responses would have been important information that he would have included in the file note.[350]
116 Fifth, it was put to Mr Muir that there is no record in the file note about the relationship between Charmian and Rosemary. Mr Muir accepted this.[351] It was then put to Mr Muir that had Charmian told him that Rosemary was her niece, this would have been important information he would have included in the file note. Mr Muir did not accept this proposition, stating that the most important thing when identifying a beneficiary is the beneficiary's name and he had identified Rosemary by name.[352] Mr Muir conceded that perhaps he should have included Rosemary's relationship with Charmian in the file note, but did not see it as a 'critical error'.[353] Mr Muir stated that he had obtained the information that Rosemary was Charmian's niece from some source, but had no recollection of who that source had been.[354]
117 Sixth, it was put to Mr Muir that there is no record in the file note of him asking Charmian about whether she had any children, had been in or was currently in a relationship, or had any other people in her life who might have a natural claim on her estate. Mr Muir accepted this proposition,[355] but stated that he was aware at the time of the meeting on 1 October 2010 that Charmian had never married and had no children.[356] Mr Muir stated the information that Charmian had never been married had come from Cilla, but did not recall the source of the information that Charmian had no children.[357] Mr Muir accepted that had he asked Charmian these questions, her responses would have been important information he would have included in the file note.[358]
118 Mr Muir stated that he understood the phrase 'a natural claim on the estate' to mean 'a relationship with a person who would have the capacity to bring a Part IV claim if he or she was - felt that they were not adequately provided for in a person's will.'[359] Mr Muir understood such persons to include a spouse, domestic partner and child; those who could contend that there was a 'moral obligation' to make provision.[360] When asked whether he had had such a understanding when he saw Charmian on 1 October 2010, Mr Muir stated:
Mr Muir: [W]hen I saw Charmian in 2010, I had been informed that she had never been married. She was 80-something. She was living alone at that house. I didn't feel it was necessary to enquire about relationships she might have with a third party, and I'm not certain of the source but I believed that she didn't have any children, and she certainly did not make any reference in our discussions about a relationship with a third party or children. If she had - if she had made reference to children or a relationship, I certainly would have included it in the - it would have been part of the discussion and it would have been in this memorandum.[361]
119 A time ledger dated 15 December 2010 records 10 units (or 100 minutes[362]) billed by Mr Muir for the meeting with Charmian on 1 October 2010.[363] Mr Muir gave evidence that the 100 minutes would have included travel time from his office to Charmian's house and back, such that approximately 40 to 50 minutes of the 100 minutes billed was for travel and approximately 60 minutes was for the actual meeting.[364]
120 When asked how he had 'formed the view that Charmian had more than adequate testamentary capacity', Mr Muir gave the following evidence:
Mr Muir: Well, in the second sentence of the second paragraph, I think it talks about the concept of wills, the role of an executor and the need for selection of beneficiaries. So I would have discussed with Charmian the question of, 'Do you know what a will is, and what its purpose is?' 'Do you know what an executor is, and who is that going to be?' And then the beneficiaries, 'Who are the people who, upon you passing, will be the recipient of your assets?' And the reply I received from her gave me the confidence that she had an adequate understanding of the document that we were talking about, and that became even clearer as we went on to details about her assets. Because she'd told me that she had this house in Armadale, she had some shares, and made the point, which is recorded in that memo, that the value of those shares had in recent times dropped in value, and she also mentioned that she had a bank account with funds in it.[365]
121 When asked why his view of Charmian's testamentary capacity was 'enhanced during the balance of [the] meeting', Mr Muir stated it was due to:
Mr Muir: The way she nominated the beneficiaries. I mean, I didn't say to her, 'Why don't we just carve it up into 20 parts?' She had - I may have been part of the discussion, but she presented a structure broadly along the lines of - this is my recollection - broadly along the line of the bullet points in that memo.[366]
122 Mr Muir was cross-examined at length about the 1 October Note. It was put to Mr Muir that he had not recorded in the file note any detail of the specific questions that he had asked Charmian or her answers that had enabled him to form the view that she had adequate testamentary capacity.[367] Mr Muir in response stated:
Mr Muir: I had a discussion with her and no doubt that discussion dealt with things like, 'Who would you like to be the executor or executors?' 'Who are the beneficiaries?' And it's not as if suddenly she would answer the question. We'd have a discussion and that discussion would result in her providing me with instructions, and she did it in a very coherent manner.
...
[T]he questions I asked according to that memorandum included who was going to be the executor, who was going to be - who were going to be the beneficiaries. She answered all of those questions and nine beneficiaries and percentages and so forth. She doesn't just pluck those out of thin air without some knowledge and understanding of what we're talking about.[368]
123 Mr Muir accepted that he had not had any discussion with Charmian about the value of her assets according to the file note.[369] However, Mr Muir disagreed with the suggestion that he had had no ability to assess whether Charmian understood the value of her estate:
Mr Antill: [G]iven that you didn't have any discussion with her about the value of her assets, I put it to you that you had no ability to assess whether she understood the value and the nature of her estate?
Mr Muir: Well, she would know the value of her shares. She would know the balance of her bank account and she would know the value of property in Armadale.
Mr Antill: That's an assumption that you're making?
Mr Muir: What are you suggesting?'
Mr Antill: That's an assumption you're making, that she knew the value of her estate?
Mr Muir: Yeah, because as mentioned in that memorandum, I have - came to the conclusion that she had adequate testamentary capacity. Not just confined to the will, but she understood what was happening to - out there in terms of the property, the bank account, shares, et cetera.
Mr Antill: I'll just put the question to you again. Given that you didn't ask her any questions about the value of her assets, you had no ability to assess whether she understood the value of her estate?
Mr Muir: I don't agree with that.[370]
124 It was also put to Mr Muir that the reference in the file note to 'Denise's other daughter Sasha' indicated that Charmian had erroneously referred to Sasha as Denise's daughter (when in fact Sasha is Denise's son). Mr Muir disagreed with this suggestion, explaining that he would have assumed that Sasha is a daughter because he had always understood 'Sasha' to be a female name.[371] Mr Muir had no recollection as to when or how he discovered that Sasha was Denise's son and not Denise's daughter.[372]
125 Mr Muir was asked whether he had asked Charmian about why she was effectively leaving only 2.5% of her estate to Rosemary, her niece and closest relative. Mr Muir responded:
Mr Muir: It may have occurred to me, and I may have been satisfied by the testator's description of the relationship she had with the other beneficiaries, and I was also confident that she knew what she was instructing me to include in her will, and I was following those instructions.
...
No, I didn't [ask], nor did I think it was necessary because I felt that Charmian was knowledgeable about these beneficiaries that she wanted to include in her will. She was expressing it quite clearly to me and I was taking her instructions, and I had no reason to quiz her about those factors.[373]
126 Mr Muir's evidence, which I accept, is that he would have followed his usual practice when he took instructions for Charmian's will.[374] Mr Muir's usual practice when taking instructions for preparing a will was not deficient. Counsel for the defendant submitted that no weight could be placed on Mr Muir's assessment of Charmian's testamentary capacity because his evidence disclosed that he did not have a proper understanding of the test for testamentary capacity.[375] I reject this submission. I accept Mr Muir's evidence that he considered an elderly client to be a 'red flag'[376] and that he would want to be fully satisfied that the person providing instructions fully understood what he was talking about when he asked 'Who's going to be the executor? ... [W]ho are the beneficiaries going to be? What are your assets?'.[377] A fair reading of all of the evidence given by Mr Muir supports a finding that he appreciated and understood the legal test for testamentary capacity. However, if this was not the case, it is ultimately a question for the Court to determine whether, having regard to all of the evidence, Charmian had testamentary capacity when she executed her will.
127 Cilla gave evidence that in late 2010 or early 2011, Charmian had told her that she had met with Mr Muir on 1 October 2010.[378] However, Charmian had not told Cilla anything else or why she had met with Mr Muir, and Cilla had not asked Charmian for details as '[t]hat's the stuff between lawyer and client'.[379]
128 On 4 October 2010, Mr Muir received a fax with the subject 'Charmian Watt's Will'.[380] The fax listed the missing names of the beneficiaries that Charmian had been unable to provide to Mr Muir during the meeting on 1 October 2010. The fax is set out below:
129 It is common ground that the fax contained an error in that Rosemary's son Nicholas was incorrectly named Charles. Rosemary's three sons are in fact Lachlan Laycock, Nicholas Laycock and Rupert Laycock.
130 Mr Muir stated that he used the information in the fax to prepare a draft will.[382] Mr Muir was uncertain about whether he or Charmian had contacted Cilla asking for the names of the beneficiaries.[383] Mr Muir stated it was possible it could have been an employee at his firm, but 'improbable'.[384] In cross-examination, Mr Muir accepted it was possible he had contacted Cilla and asked her to send the names, but stated that he thought it was 'improbable' he had contacted Cilla because if he had done so he would have made a file note of such contact.[385]
131 Cilla gave evidence that Mr Muir called her and asked her for the names of the beneficiaries.[386] She gave evidence that the fax dated 4 October 2010 was sent by her mother Denise.[387] This evidence was based on her mother's telephone number which appears on the top of the fax. Cilla could not otherwise recall any conversation with her mother about the contents of the fax.[388]
132 On 4 October 2010, after receiving the fax, Mr Muir prepared a first draft of Charmian's will ('First Draft').[389] The First Draft:
(a) appointed Denise and Cilla to be the joint executors of Charmian's will and trustees of Charmian's estate; and
(b) provided for Charmian's estate to be divided into 20 equal shares, with:
(i) Denise to receive nine shares;
(ii) Cilla, Sasha and Simon to receive three shares each; and
(iii) Rosemary and her three sons 'Laughlin Laycock, Charles Laycock and Rupert Laycock' to receive two shares collectively.[390]
134 In cross-examination, counsel for the defendant put to Mr Muir a number of differences between the 1 October Note and the First Draft:
(a) Sasha is referred to as 'Cilla's brother' in the First Draft whereas he is referred to as 'Denise's daughter' in the 1 October Note;
(b) Simon is referred to as 'Cilla's brother' in the First Draft whereas he is referred to as 'Denise's son' in the 1 October Note; and
(c) Rosemary is identified as a 'niece' in the First Draft whereas the relationship between Rosemary and Charmian is not identified in the 1 October Note.[394]
135 Mr Muir accepted these differences.[395] Mr Muir agreed with the suggestion that at some point between 1 October 2010 and the drafting of the First Draft, he had been provided with extra information.[396] Mr Muir accepted it is possible the information had been provided by Cilla, but could not recall.[397]
136 Counsel for the defendant also identified another difference, being that the 1 October Note recorded Charmian had instructed Mr Muir to divide her estate in terms of percentages, whereas the First Draft divided the estate on the basis of 'twenty equal parts or shares'.[398] Mr Muir could not recall 'the transition from one approach to the other', but accepted the proposition that Charmian had instructed him in terms of percentages and he had decided afterwards to express those instructions in terms of 'twenty equal parts'.[399]
137 On 5 October 2010, Mr Muir had a telephone call with Charmian. Mr Muir's file note dated 5 October 2010 ('5 October Note') is set out below:
I spoke to Charmian and told her that Cilla had indicated that her mother Denise was a little reluctant to act as executrix of the estate and that Cilla has suggested that I could perhaps act as executor. Charmian responded by indicating that that would be perfect in her mind as I would be a "third party" and separate from the beneficiaries. She said that she would like me to proceed on that basis.[400]
138 Mr Muir agreed it is likely that he had made the telephone call to Charmian.[401] In relation to the 5 October Note, Mr Muir explained:
Mr Muir: Cilla had obviously contacted me and told me that she and her mother were reluctant to take on the role of executors, and that led to me contacting Charmian and she - and there was discussion about the possibility about me taking on the role of executors.[402]
139 Mr Muir stated that to his memory, there was nothing said during that call that caused him to have any doubt about Charmian's testamentary capacity.[403]
141 On 5 October 2010, Mr Muir prepared a second draft of Charmian's will ('Second Draft').[406] The Second Draft:
(a) appointed Mr Muir to be the executor of Charmian's will and trustee of Charmian's estate;
(b) provided for Charmian's estate to be divided into 20 equal shares, with:
(i) Denise to receive nine shares;
(ii) Cilla, Sasha and Simon to receive three shares each; and
(iii) Rosemary and her three sons 'Laughlin Laycock, Charles Laycock and Rupert Laycock' to receive two shares collectively; and
(c) contained a charging clause.[407]
142 In cross-examination, counsel for the defendant identified a number of differences between the First Draft and the Second Draft:
(a) Mr Muir is appointed as executor in the Second Draft whereas Denise and Cilla are appointed as joint executors in the First Draft;
(b) Sasha is described as 'Denise's son' in the Second Draft whereas he is described as 'Cilla's brother' in the First Draft; and
(c) Simon is described as 'Denise's son' in the Second Draft whereas he is described as 'Cilla's brother' in the First Draft.[408]
143 Mr Muir could not offer any explanation as to why he had changed the description of Sasha and Simon to 'Denise's son[s]' in the Second Draft.[409]
144 The First Draft did not contain a charging clause, whereas the Second Draft contained a third clause entitling Mr Muir to 'charge and be paid all usual professional fees for services rendered by him in connection with the proving of this my Will and the administration of the trusts hereby created as if he were not an executor and trustee hereof.'[410]
Dear Charmian
Re: Your Will
Thank you for your time in meeting with me last Friday.
As I have mentioned during our telephone discussion today I have spoken to Cilla and she has told me that her mother Denise is a little reluctant to act as executrix of your estate and that Cilla has suggested that it may be best if I was to act as executor. I have noted your advice that you would like to proceed on this basis.
Consequently I have enclosed with this letter a draft Will that I have prepared. I direct your attention to clause 2 which sets out the beneficiaries. In simple terms the estate passes as to 45% to Denise, 15% to Cilla, 15% to Sasha, 15% to Simon and the remaining 10% to Rosemary and her three sons Laughlin, Charles and Rupert.
Please let me know if you have any queries at all regarding the provisions of the Will.
If in order I will arrange to call by your home to have the original documents signed.
I look forward to hearing from you.[413]
147 Initially, the Second Draft was scheduled to be signed on 14 October 2010 and an appointment was made for Charmian to sign the Second Draft on that day at 3pm.[416] However, the appointment was rescheduled. Mr Muir stated that it was likely the Second Draft was not signed on 14 October 2010 because he was travelling interstate with his family the following day and so would have taken the afternoon of the 14 October 2010 off.[417] The appointment was rescheduled to 5pm on 18 October 2010.[418]
148 In a draft bill dated 8 November 2010, it is recorded that Mr Muir billed three units (or 30 minutes) for an '[e]xternal meeting with C Watt' on 14 October 2010.[419] Mr Muir accepted it is possible he did have a meeting with Charmian on 14 October 2010, but could not recall and could not offer an explanation for that time entry.[420]
150 Cilla gave evidence that in the period 1 October 2010 to 18 October 2010 she had no involvement with the execution of the will.[423] I accept this evidence. I found Cilla to be an entirely credible witness.
151 Mr Muir gave the following evidence in relation to his usual practice when a client was signing a will:
Mr Muir: I was always - I always asked the client if she or he had any queries at all regarding the document. Actually, before that, I would paraphrase. I used to use the expression - paraphrase - the document to the client, I would not read each and every word, but each paragraph or sentence. I would explain - read that to the client and explain what it meant and stop at the end of each sentence to give the client an opportunity to say, 'Well, what do you mean by that?' or, 'Is that right?' or to raise any questions that he or she might have in relation to the document. That's the process that I always followed and I'm certain I followed in this particular case.
Mr Rizzi: Just before you get to this particular case?
Mr Muir: Yes.
Mr Rizzi: [S]o would you read the will out verbatim or word-for-word?
Mr Muir: No, not word-for-word. I would paraphrase it. Just - for example, I would say that the estate - 'The assets of the estate would be divided into 20 shares and nine would be going - would pass to Denise', and I would want to see the client say, 'Yes, that's right' and I'd do that beneficiary to beneficiary, to make sure that it's exactly what she wanted. I would not rush it past the client, and I certainly would have discussed those individual beneficiaries one by one.
Mr Rizzi: And I think you answered this question, but how would you satisfy yourself that that person understood the contents of the will when you were paraphrasing?
Mr Muir: A tricky question. I'd just have to back my judgment that the client did understand what I was saying and wasn't faking the situation and usually that would be indicated by the client and say, 'Yes, I' - 'yep, that's good' or, 'Fine, yes, I agree with that.' I can't tell you what actually happened in this particular instance when I went through the will with Charmian.
Mr Rizzi: Yes. Well, I am still talking about your general practice?
Mr Muir: Yep.
Mr Rizzi: And on a similar note about understanding, how would you satisfy yourself that a person had testamentary capacity at the time of signing a will?
Mr Muir: Okay. Well, in this particular case
Mr Rizzi: Sorry, not - I'm not asking you in this particular case. As a general - as part of your usual practice?
Mr Muir: Okay, okay.
Mr Rizzi: How would you satisfy yourself that the person had testamentary capacity at the time of signing the will?
Mr Muir: That they were, in a logical way, answering the questions that I was putting to them. I think that's the critical instrument of measurement of their understanding and the questions that they would - may have - may be put to me about the document and particular provisions within it, I think I was able to judge from those questions whether or not this client or the client I'm dealing with understood what this instrument was all about.[424]
152 On 18 October 2010, Mr Muir, Mr Beer and Ms Keizer went to Charmian's house to execute and witness her will. Mr Beer is a solicitor who worked at Darrer Muir Fleiter Lawyers from 2003 to 2021 on property law matters.[425] Ms Keizer was a secretary for Mr Muir who worked at Darrer Muir Fleiter Lawyers from around 1997 to 2013.[426]
153 On 18 October 2010, Charmian executed her will and it was witnessed by Mr Beer and Ms Keizer.[427]
154 Mr Muir's file note dated 18 October 2010 ('18 October Note') is set out below:
I attended Charmian home in Armadale along with Karen Keizer and Lachlan Beer.
I produced the original document to Charmian who indicated that she was happy with it.
Charmian then signed the document in the presence of Karen and Lachlan.
It was agreed that I would hold the original in my deed safe and send her a copy.
Charmian said that she would like to consider the possibility of making provision for some of her other cousins in the document and she would give some thought to that. I told her that I would be saving the Will on our computer system so it could easily be updated down the track.[428]
155 Mr Beer had no specific memory of the meeting on 18 October 2010.[429] Mr Beer gave evidence regarding his observations of Mr Muir's usual practice when a client was signing a will:
Mr Beer: Um so usually when I was a witness, it was outside of the office. If it was at the office, Mr Muir and the secretary or two secretaries would be the witnesses. So when I was a witness, it was normally outside of the office. You know, going to a client's house. Would often travel together in the same vehicle. Um normally out of hours. You know, shortly after, you know, 5 pm. Um we'd attend, normally, the private residence, the house um - you know, all get introduced um to one another.
Um ah the will would be produced, um Mr Muir would normally either run through it or talk to the client about the will and does this reflect their wishes and is the same that ah was the - the same form that was previously drafted and previously shown to them as the - the - the draft prior to signing. Um ah would then um sit down and - and - and go through the signing process. The um - the - the testator would sign; um the first witness would then follow and then the third witness. There'd be um some, you know, chit-chat, you know, pleasantries, but um that was - that was the process.
Mr Rizzi: And can I just ask you to elaborate on the process Mr Muir followed taking the client through the will, if you could?
Mr Beer: Um normally it was um ah a question to the client of 'Do you have any questions about the will?'. Um there wasn't - my recollection is it wasn't one um uniform procedure um dependent on - on the client in the circumstances. So sometimes the clients would have questions and, if they did, then that would be discussed. Ah sometimes it would be, 'No, that's, you know, what we've - what I've asked for. It's in line with the draft that was presented and I'm ready to sign'.[430]
156 Mr Beer also gave evidence regarding his usual practice when witnessing the execution of a will:
Mr Beer: Um to - to - to be there as a - a signatory to the - literally witnessing the will. Um - ah normally I wouldn't have any ah material input into the process of preparing nor ah going through ah the will. Um I - I was there to fulfill, you know, the obligation of a - of a witness.
...
Mr Rizzi: As part of that process, would you satisfy yourself independently that the person understood the contents of the will?
Mr Beer: Um yes, I - I guess I would. Um but more -well, understood the contents of the will. Just - just based on oh I guess their body language and - and the discussion that would be had around the table at signing, um if there was any uncertainty um, you know, I think I would um take mental note of it and - and - and it would be um, you know - raise it with Michael or do something. But um no, I - I didn't - no, I - I didn't - I didn't have any involvement in that aspect of it. I was - I was there witnessing, not - not anything further.[431]
157 In cross-examination, Mr Beer confirmed that there was not a 'uniform procedure' and stated that he had no specific recollection about whether Mr Muir had followed his usual practice when witnessing the will on 18 October 2010.[432] Mr Beer also stated that if a client did not have any questions about the will, they would move straight into the signing process.[433]
158 Ms Keizer did not remember the meeting on 18 October 2010 aside from remembering driving to Charmian's house.[434] Ms Keizer gave the following evidence in relation to her observations of the usual practice being followed when a will was being signed:
Ms Keizer: We would - ah I would type up the document, the will. Michael would check it over. We would get the client in. Mr Muir would then explain the will to the client. If they were happy, we witnessed the will.
Mr Rizzi: During that process, what was your role?
Ms Keizer: I would - could you explain that, please?
Mr Rizzi: Sure. During the process of Michael explaining the will to the client, what was your role?
Ms Keizer: I would be sitting there listening to that explanation.[435]
159 In cross-examination, Ms Keizer stated that the usual process would not change depending on the client making the will:
Mr Antill: But that might change depending on the nature of the person who's making the will?
Ms Keizer: No.
Mr Antill: I want to suggest to you that, on occasion, Mr Muir might simply ask the client, 'Are they happy with the will?' and the client might say, 'Yes' and Mr Muir might say, 'Do you have any questions?' and the client might say, 'No' and then you'd go straight into the signing. I want to put to you that that's what happened on certain occasions?
Ms Keizer: I can't recall that.
His Honour: Well, what do you say would happen?
Ms Keizer: I would say that, look, the practice would be that Mr Muir would describe or go through paragraphs of the will and make sure that the client understood, asked then if they were happy and then we would sign.
His Honour: Go through each paragraph in the will?
Ms Keizer: No, Your Honour, not every paragraph.
His Honour: Okay. The principal paragraphs?
Ms Keizer: Correct.
His Honour: Like who was getting what, so to speak?
Ms Keizer: Correct.
His Honour: Okay.
Mr Antill: And you'd agree that he wouldn't read it out word for word?
Ms Keizer: Correct.[436]
160 Mr Muir stated that he had no precise recollection of the meeting on 18 October 2010.[437] However, he was certain he had followed his usual practice for signing wills with Charmian on 18 October 2010.[438] Mr Muir stated that if something concerning had come up during that meeting, he would have made a note of that.[439]
161 In relation to the last paragraph of the file note, Mr Muir explained:
Mr Muir: I was - she was asking - she was indicating that she may want to change the will down the track and I informed her that this would be - could be undertaken fairly efficiently, because the document will be on my computer system, so it could be brought up, modified, printed, and signed.[440]
162 In a time ledger dated 15 December 2010, it is recorded that three units (or 30 minutes) was billed by Mr Muir for the meeting with Charmian on 18 October 2010.[441] Mr Muir did not know whether the 30 minutes included travel time, but considered it was likely that he, along with Mr Beer and Ms Keizer, would have driven from his office to Charmian's house and would have gone home directly from Charmian's house.[442] In cross-examination, Mr Muir accepted it is possible the 30 minutes billed included 20-25 minutes of travel time, such that the meeting itself may have only taken 5-10 minutes.[443]
163 In cross-examination, Mr Muir was asked whether the 18 October Note included everything that had occurred in the meeting on 18 October 2010. Mr Muir responded:
Mr Muir: The only thing that I'm uncertain as to its inclusion is that ordinarily, I would have, as I said yesterday, paraphrased the provisions of this will before it was signed. So - so as to inform the client that - not word by word, but 'Clause 1 says this. Clause 2 says this. Clause 3 says this. Any questions?' And I am quite certain that I would have done that because it was just part of my regular routine. As to how that might impact on the timing and travelling, that issue, I can't offer an explanation. But I can confirm that my standard process, when it came to signing a document, whether it be a will, or a lease, or a contract, whatever it might be, is if - usually it's to paraphrase the provisions of the document and satisfy myself that the document reflects the client's wishes, and that's my response to your query.[444]
164 Mr Muir acknowledged that his file note of 18 October 2010 did not make any reference to him having paraphrased the clauses in the will or explaining their meaning to Charmian.[445] He acknowledged that the file note did not make any reference to him having made an assessment of Charmian's testamentary capacity on 18 October 2010, other than as part of paraphrasing the contents of the will. He did not have any recollection of Charmian indicating that she did not understand the clauses in the will when he paraphrased them.[446] Mr Muir also acknowledged that the file note did not record that he had explained to Charmian that clause 3 was designed to cover the legal fees for his services in proving the will and administering the estate.[447] Nevertheless, he was certain that this was a matter that he would have raised and discussed with Charmian.[448] I accept this evidence. Mr Muir was a very credible witness.
165 On 19 October 2010, Mr Muir sent a letter to Charmian enclosing a copy of the signed will. The letter read as follows:
Following on from your meeting yesterday I have enclosed with this letter a photocopy of your new Will.
I have placed the original in my deed safe on your behalf.[449]
167 Charmian was first diagnosed with dementia on 15 September 2010 following a consultation with Dr Chris Moran and Dr Simon Scharf. However, Charmian had been experiencing cognitive decline for several years prior to 2010. In July 2005, Charmian attended the memory clinic service at the Heidelberg Repatriation Hospital. A summary of cognitive performance prepared following this consultation noted:
Over the past 10 years your memory and thinking have shown a mild but definite deterioration particularly in your ability to recall information over time. This is currently subtle and not diagnostic of any specific disease but we would recommend you consider making an appointment to attend the memory clinic for further assessment to determine, if possible, a cause and offer a counselling or treatment.[453]
168 On 18 August 2008, Charmian attended Dr Wright who noted:
[W]ants pills for dementia - was part of survey and was told she would get dementia years ago
[F]orgets things but otherwise very fit - no physical ailments
...
Actions: Mini Mental State Examination performed - the score of 28 indicates that no significant cognitive impairment has been identified.
[D]ifficulty with clock but recognised her mistake and rectified it without being told.[454]
169 Dr Wright met with Charmian and referred her to the Memory Clinic in Caulfield on 21 November 2008. Her file note of the appointment contains the following:
[A]ware that her memory is going and missing appointments - requests referral for possible assistance with medication.[455]
[Charmian] has had some memory disturbances over the past couple of years which has become more marked lately. MMSE May 2007 = 29, August 2008 = 28 ... Interestingly she was part of a prospective study to look at a possible diagnostic test for Alzheimer's and was told at the end of this that she would develop dementia ... She has a brother who visits regularly and a niece who is supportive.
She is keen to explore the possibility of medication to slow her memory loss.[456]
170 On 10 December 2008, upon Dr Wright's request, Charmian had a CT scan conducted by Cabrini Medical Imaging.[457] That scan reported that Charmian had '[m]emory disturbance with recent exacerbation' but that it was an '[e]ssentially normal examination for age.'[458] Dr Wright confirmed that this scan came back normal.[459]
171 On 26 February 2009, Dr Wright made the following note: 'Mini Mental State Examination performed - the score of 29 indicates that no significant cognitive impairment has been identified. [C]lock drawing excellent seeing memory clinic next month'.[460]
172 Marina Shubova, an occupational therapist at CDAMS, visited Charmian at home on 4 March 2009.[461] Ms Shubova made a file note of her visit. That note included 'gradual deterioration over a few years. Main problems are: finding objects around the house, ↓ [decreasing] STM [short term memory], forget[s] appointments.'[462] On that same date, Charmian scored 29 out of 30 on a Mini Mental State Examination.[463] On 11 March 2009, CDAMS' initial assessment summary notes that Charmian had decreasing short term memory and was misplacing objects.[464]
173 On 15 April 2009, Charmian was assessed by Professor Elsdon Storey, Professor of Neuroscience at CDAMS. He prepared a report dated 25 April 2009. This report included the following:
Ms. Watt herself told me that she was concerned about her memory. She misplaces items around the house, and sometimes misses appointments despite writing them in her diary, as she sometimes misplaces the diary itself. She still drives, and denied becoming disoriented or having difficulty remembering where she has parked her car. I note that results of her home visit assessment, including her normal MMSE score of 29/30, the lack of any functional impairment on the Alzheimer's Disease Functional Assessment and Change Scale.
...
Thank you for providing the results of Ms. Watt's dementia screen. I note that these results were essentially normal.
...
In summary, Ms. Watt displays clear deficits in semantic memory (naming and verbal fluency), and a retrieval deficit affecting anterograde episodic memory, in the absence of obvious deficits in other cognitive domains. Given that she still appears to be functioning independently, she would be best categorised as having mild cognitive impairment of mixed (amnestic and semantic) type.[465]
174 On 6 May 2009, Inna Brodsky, a clinical neuropsychologist at CDAMS, performed an assessment of Charmian. She sent a letter to Dr Wright following the assessment. The letter included:
Qualitative observation of his [sic] cognition revealed patchy memory for recent events. Whilst she was able to remember her previous contact with CDAMS clinicians and even the details of the tests administered, she was unable to remember other relevant details or date her memories. She required repetition of instructions. Her distant memories appeared better preserved, although she still [had] difficulties dating and sequencing her memories. Her prospective memory for upcoming events was also reduced but she appeared to utilise her calendar relatively successfully...
To summarise, Ms Watt's showed reduced capacity to retain her memories. This is the hallmark of Alzheimer's disease but there appears to be no functional decline to support the diagnosis of dementia at this stage.[466]
175 Charmian and Rosemary attended CDAMS on 10 June 2009. At that meeting, Professor Storey discussed the results of the neuropsychological assessment and noted that Charmian had 'difficulties with delay memory and new learning' and that Randal had been diagnosed with dementia.[467]
176 A week later, on 17 June 2009, Ms Shubova provided Charmian with a feedback session summary from her attendance at CDAMS.[468] Ms Shubova noted under the heading 'Conclusions/Recommendations' that:
[T]here is probably evidence of a decline in your memory ... There is insufficient evidence to suggest that this is a developing dementia at this stage ... In the mean time [sic] you appear to be managing very well at home... We encourage you to organise an Enduring Financial Power of attorney [sic] and a Will.[469]
177 On 19 June 2009, Professor Storey wrote to Dr Wright about Charmian's feedback session with CDAMS.[470] He stated that Charmian fell into the category of mild cognitive impairment, that about 50 - 70% of such cases progress to dementia and that they would reassess her in 12 to 18 months' time.[471] Further, Professor Storey made clear that:
We explained that Ms. Watt currently falls into the category of mild cognitive impairment. This is a diagnostic category with an indeterminate prognosis, as about 50 to 70% of such individuals progress to a dementia, whereas the remainder stabilise or even improve ...
At this visit we learned that Ms. Watt's older brother has been diagnosed with some form of dementia. This approximately doubles her lifetime risk of developing dementia herself, but of course does not make it inevitable.
...
We discussed a number of legal issues. Ms. Watt does not have an enduring financial and legal Power of Attorney established, apparently, and we have encouraged her to create this at this stage. She does not have a Will, partly, it seems, because of a superstitious feeling that not doing so may stave off illness and death. We have again strongly encouraged her to create one at this stage. Given the diagnosis of mild cognitive impairment, we do not have grounds for insisting that Ms. Watt pass an on-road occupational therapy driving test if she wishes to continue driving, but we have recommended that she consider doing so at this stage to ensure that she is still safe, as neuropsychological testing has less than perfect predictive value for driving safety.[472]
178 Approximately 12 months later, in July 2010, Charmian executed an enduring power of attorney and a guardianship.
179 On 11 July 2010, Dr Wright made an entry in Charmian's file at Wynlorel that Rosemary had reported Charmian 'had a bit of a melt down since [Dr Wright] last saw [Charmian] - niece bringing her in tomorrow to organise powers of attorney has lost keys, handbag etc'. [473] Dr Wright left actions that she would need to complete:[474] 'needs ACAs [aged care assessments] and respite, needs psychogeriatric review?'.[475]
180 On 12 July 2010, Dr Wright wrote to Caulfield Medical Service. The letter noted a 'significant decline in [Charmian's] organisational ability and short term memory since last June when she last attended your clinic.'[476] The letter went on to state that '[Charmian] has become quite distressed over losses of handbags, keys etc and has consequent increase in anxiety and more willingness to accept assistance from her niece and us'.[477]
181 On 12 July 2010, Dr Wright witnessed the signing of Charmian's power of attorney.[478] She also made a note of her interaction with Charmian and Rosemary, both of whom were present:
[D]iscussion re powers of attorney - in view of losing keys and handbags and becoming quite distresse[d]- felt burglars were coming into her house
[W]ants Rosemary to be her financial and medical power of attorney - understands the implications fully of both - that Rosemary could if need be sell her house and put her in a home etc and make medical decisions where she was not able
[N]ot taking her medication as has not had scripts filled - will do so today.[479]
182 Dr Wright gave evidence that as at 12 July 2010 she was satisfied that Charmian had capacity to make a power of attorney.[480] Specifically, she was satisfied that Charmian understood that by appointing Rosemary as her attorney, Rosemary could sell her house and make medical decisions affecting her.[481]
183 Penny Wong, a clinician at the Aged Care Assessment Service at Caulfield Hospital ('ACAS'), visited Charmian on 27 July 2010. She wrote to Dr Wright on 28 July 2010. Ms Wong noted that '[Charmian] was aware of her poor memory and was quite embarrassed with her disorganize[d] home environment... She is not agreeable to have the RDNS for medication compliance. Her MMSE was 27/30 RECALL 2/3'.[482]
184 Ms Wong provided further detail of her 27 July 2010 visit to Charmian in a referral letter dated 6 August 2010:
I visited [Charmian] at home on 27/7/2010. She had lost her hand bags three times, stated it was stolen on one occasion. Her home environment appeared chaotic and disorganized. Her niece reports paranoia and anxiety. She had locked herself out of her home requiring family to assist.
She remained fiercely independent however she had agreed for an appointment with CDAMS. Her niece Rosemary Laycock, is her Guardian. She is very concerned and request an appointment with CDAMs ASAP. Charmian continues to drive.[483]
185 An 'Initial Assessment' of Charmian conducted by CDAMS dated 8 September 2010 states that Charmian was burning food on the stove, misinterpreting situations, experiencing declining cognitive function, was repetitive and had 'cognitive impairment, likely dementia'.[484] Charmian's lack of cooperation resulted in Cornelia Brune, a registered nurse at CDAMS, failing to complete a MMSE.[485]
186 Ms Brune made a progress note of her visit with Charmian on 8 September 2010:
Mrs. [sic] Watt did not expect me and stated, she does not want anything to do with CDAMS. However, she invited me in and engaged in brief and superficial conversation before terminating the interview. [S]he presented as alert, orientated, fatuous, inappropriate and incongruent in affect with euthymic mood. [S]hort term memory loss was evident, she was repetitive, could not recall what medication she takes, neither name of GP or local pharmacy. Overall, she was evasivve [sic], irritable, hostile at times, sarcastic and non-cooperative. I was unable to complete MMSE, however, she was orientated, able to spell backwards, 0/3 on recall and visuospatial difficulties. Mrs [sic] Watt reported that she lost her handbag with money and cards/licence in it this am and that handbag had been stolenx3 over recent months (?paranoia, ?misinterpretation of situation).
Mrs [sic] Watt continues to drive!
Mrs [sic] Watt stated, she does not want to take any medication or any further appointments with CDAMS.[486]
187 On 10 September 2010, Charmian had a consultation with Dr Wright. Dr Wright made the following notes:
[Charmian] says very well
[H]ad a visit from Caulfield nurse and expecting one from the Dr ? psychogeriatrician
[W]orried about it
[P]aranoid about her niece coming into the house when she is not there and taking over
[N]ot taking her medication
...
[S]trongly suggest she see geriatrician next Tuesday.[487]
188 The reference in the final line of Dr Wright's notes to Charmian seeing a 'geriatrician next Tuesday' refers to the scheduled appointment with Dr Moran and Dr Scharf on 15 September 2010, which resulted in Charmian's first diagnosis of dementia. Dr Wright gave evidence that based on the consultation of 10 September 2010, she considered that there had been a 'big change in what had previously been a warm, caring relationship' between Rosemary and Charmian.[488]
189 The report prepared by Dr Moran and Dr Scharf following their assessment of Charmian on 15 September 2010 included the following under the heading 'Cognitive Assessment':
MMSE as attempted by Conny Brune (CDAMS nurse) on 8/9/10 was 16 however was limited by patient's refusal to participate further. Today the patient again refused to participate in formal cognitive assessments claiming they were "an insult". She was orientated to day, month and year. She was able to say the months of the year backwards and count backwards from 20 prior to ceasing the test demonstrating reasonable concentration. Remembering a name and address took 2 attempts and delayed recall of the same information resulted in omission of the street number.
Throughout the consultation, Ms. Watt demonstrated poor insight into her memory impairment and refused to appreciate the presence of or on the basis of any of the concerns that had been raised. She expressed her belief that the clinic's role was "to put me in a home" and was suspicious regarding any further communication between this clinic and her general practitioner, niece or Vicroads.
Ms Watt had good eye contact and a bright affect. She reported her mood was good and denied and [sic] symptoms of depression.[489]
There are significant concerns regarding Ms. Watt's ability to safely manage at home. There are no physical signs suggestive of an organic cause of a potential delirium but a basic delirium and dementia screen would be prudent.
On review today at the clinic, Ms Watt did not demonstrate capacity to make lifestyle or medical decisions. Fuller assessment was made difficult by the patient's unwillingness to participate.
Ms. Watt's niece, despite having EPOA, is finding it difficult to make decisions regarding her mother's home environment. We have suggested she discuss these issues further with the Office of the Public Advocate.
I have informed Ms Watt that we do not feel that she is safe to drive and notified Vicroads of the same. This was met with a significant degree of resistance and I have concerns that she will continue to drive despite the recommendation.
We will liaise with the Aged Care Assessment Service and suggest a further home visit as she may have deteriorated further since their last review.
Ms Watt's cognitive impairment has resulted in an impairment of her functioning and therefore fits the criteria for a formal diagnosis of dementia. We are unable to clarify the sub-type of the dementia further but she has likely got an element of Alzheimer's disease with a component of vascular disease given previous cognitive testing, CT brain findings and known vascular risk factors. Obviously adherence to medications is a concern if Ms. Watt remains at home so we have not considered her for a Cholinesterase inhibitor at this stage.
We will continue to liaise with Ms Watt's niece to address the acute issues regarding safety but have made no plans to review her at this clinic in the future.[490]
192 On 16 September 2010, Rosemary called Dr Wright.[493] Dr Wright made a record of her conversation with Rosemary:
Per phone- Rosemary - was told she should not drive and that cannot look after herself by psychiatrist and was very adamant that this was not right - hopefully wil [sic] continue to see me but may not be able to stay at home much longer.[494]
193 On 28 September 2010, Charmian had a consultation with Dr Wright. Dr Wright's notes of the consultation are as follows:
Still driving
Worried about people coming into her house and stealing things - certain people - losing car keys and getting new ones
Changing locks.[495]
194 On 12 October 2010, Charmian had a further consultation with Dr Wright. Dr Wright's notes of the consultation are as follows:
Here without an appointment - driving licence has been suspended
OT assessment and geriatrician's report required to reinstate licence
[D]iscussion - no insight.[496]
195 On 13 October 2010, Dr Wright wrote to Dr Fonda and referred Charmian to him for the purposes of a geriatric assessment. This assessment was needed to comply with the requirements mandated by VicRoads for the reinstatement of Charmian's licence. The letter to Dr Fonda was in the following terms:
Thank you for seeing Mrs [sic] Charmian Watt aged 85 yrs who has dementia with paranoid features. She requests referral because she has received a letter from Vic Roads [sic] suspending her licence and explaining the process of reinstatement. She would like your opinion as to whether she is eligible to have an OT assessment. Miss Watt has no insight into her current situation which is disappointing as she used [to] participate in a prospective study at Caulfield looking at memory. And used to voluntarily attend the memory clinic. She went there recently referred by me and her niece and did not accept their assessment at all - unfortunately I do not yet have a letter from that visit but enclose previous correspondence.
Miss Watt lives alone with minimal assistance although as you will see she has a Freemason's care package - the only thing she accepts is assistance with shopping once a week and has cancelled all other help including council assistance. She does have a cleaner who comes once a week. Her niece Rosemary luckily has power of attorney but she is currently not speaking to her niece and has in the last week called the police to accuse her of breaking into her house in the early hours of the morning. She has changed all the locks twice so now no one but her has a key.
I enclose her medication list although I understand she is not currently taking any of this medication which once was very important to her.[497]
196 Charmian had a further consultation with Dr Wright on 25 October 2010. Dr Wright's notes of the consultation are as follows:
Still very up in arms about driving and wanting to have the decisioin [sic] reversed - has appointment APPT Dr Fonda on 20/11 - wants to bring that forward
Otherwise well and seems quite calm and sensible in other ways - still very down on her niece.
Says she is taking her tablets but has run [out] of Atacand.[498]
197 Dr Wright gave evidence that the reference in her notes to Charmian being 'very down on her niece' was a summary of the words Charmian had used - that she was very critical of Rosemary.[499]
198 On 11 November 2010, Charmian attended Dr Wright's clinic. Dr Wright's notes of that consultation state:
[Charmian] came into my room and sat there refusing to leave asking for a copy of the letter from Caulfield CDAMS - I was reluctant to give it to her but relented - She was very stubborn and angry with me and kept asking for a second opinion from a geriatrician - said she has had advice from someone - I explained that that is why she is seeing Dr Fonda
[D]iscussed with niece - she is aware.[500]
199 Dr Fonda conducted a 'comprehensive geriatric assessment' of Charmian on 24 November and 13 December 2010.[501] Dr Fonda gave evidence that he would complete two assessments so that at the second assessment he could get more information, verify anything uncertain, and get results and tests back.[502] On this occasion, the first assessment lasted around two hours and the second around 45 minutes.[503] Dr Fonda could not recall doing anything extra[504] and there was no new information on the second visit.[505]
200 For the purpose of Charmian's assessment by Dr Fonda on 24 November 2010, Rosemary completed a form titled 'Changes in cognitive function compared to about 10 years ago'. Charmian would not have known that this form was being completed by Rosemary.[506] Rosemary noted in the form that Charmian almost daily forgets objects, repeats questions, forgets conversations or things that happened recently, forgets birthdays and appointments, has difficulty making decisions on everyday matters and was experiencing financial difficulties.[507] Rosemary also noted that Charmian sometimes had difficulties remembering names and had problems with shopping and preparing meals. Charmian was experiencing anxiety and was agitated but denied there was any problem. Further, on a nearly daily basis, Charmian was engaging in risky behaviour (such as leaving the stove on) and was resistant to help.[508]
201 Rosemary also noted that on a near daily basis Charmian was experiencing delusions (such as others stealing things).[509] Rosemary stated that Charmian's inability to recognise the problem, to engage in risky behaviour, her resistance to help and her delusions were the most worrying items for her.[510] She stated that these problems were worse in the evening.[511]
202 Following his assessment of Charmian on 24 November 2010 and 13 December 2010, Dr Fonda wrote to Dr Wright on 13 December 2010. His report included the following:
There has been a gradual cognitive decline over a couple of years with concerns raised about driving that led to cancellation of her licence by Vic Roads. She wishes to have her licence reinstated.
Memory and Language: She was reviewed by CDAMS in October following concern raised by ACAS in their July assessment. Services were initiated at that time. According to Rosemary, there has been a gradual decline, particularly over the past couple of years, in her short term memory, frequently misplacing objects, forgetting appointments, forgetting information.
Personality and Behaviour: She tends to minimise any change occurring. Can become easily agitated. Has burnt pots on a number of occasions. Reluctant to accept help (?suspicious of intrusion).
Believes people have broken into her home and stolen items which has been difficult to substantiate but as a result, she has changed the locks on her house on two occasion and given the key to nobody. Asked about this, she said that Rosemary has a key because the old keys should still work as they are similar locks! Apparently, she called the police to accuse her niece of breaking in, although she now seems to recognise that she does rely on her niece.
...
ADL and IADL: Independent in all aspects of personal care. Has accepted delivered meals although the fridge is quite full with these. Struggling with finances and making decisions (which she denies).
Driving: Information from CDAMS (memory clinic) at Caulfield gives a number of incidences of driving on the wrong side of the road and getting lost. The source of this is not clear to me. She denies it. As a result, CDAMS reported her to Vic Roads [sic], who have cancelled her licence pending an independent driving assessment should this be recommended by a Geriatrician. She feels the loss of her car takes away her independence even though she is capable of using public transport, she says "they are too unreliable and infrequent".
...
Mental State Examination: An alert, co-operative woman, who was very talkative and distractible throughout the assessment. She was vague on a lot of detail and relied on Rosemary to clarify information and even then seemed uncertain... She showed poor insight to her deficits and was unable to provide reasonable explanation to most of the situations described above. She scored 22/30 on MMSE with 3/3 recall at three minutes at 1/3 at 45 minutes. She showed particular impairment in executive tasks.
...
Assessment
Clearly, over the past years, there has been a progression from normal to mild cognitive impairment and now to early dementia. The nature of the progression is consistent with early Alzheimer's disease.
There certainly have been features consistent with paranoid and delusional thinking. This has resulted in her changing the locks and minimising the amount of services she will accept.
Between the first and second appointments, she would ring Rosemary up numerous times querying who initiated this process of assessment. She would be reminded that she had sought a referral from yourself because of her licence being cancelled and that it was not initiated by either yourself or Rosemary. Despite this, she had trouble retaining this information.
...
Recommendations
Information: We discussed cognitive impairment and dementia. I have provided relevant reading material about these and the Alzheimer's Association.
Memory enhancer: I have prescribed Aricept (Donepezil) 5 mg daily for four weeks and 10 mg daily thereafter. If tolerated, response to this medication is usually quite slow and unpredictable with up to 30% of patients showing a useful response by three to four months. If there are any problems or concerns with the medication, I have asked them to contact me
...
- At this stage, I would not be treating her paranoia and delusions unless it becomes troublesome, in which case a small dose of Risperidone in her Webster Pay (e.g. 0.25 mg mane) may be all that is needed to take the edge off things.[512]
203 Dr Fonda gave evidence that he considered that there would have been no change in the extent of Charmian's cognitive impairment between September 2010 when CDAMS wrote to Dr Wright and when he assessed Charmian on 24 November 2010.[513] He noted that people could have 'good days and bad days' and that, in the early days of dementia, a person could 'fluctuate in [their] level of cognitive prowess'.[514] He gave evidence that at any moment in time it was possible that there could be 'light globes that are fully switched on'.[515]
204 On 4 April 2011, Charmian had an appointment with Dr Fonda which followed on from her previous appointment on 13 December 2010. Rosemary gave the following evidence of a discussion which she had with Charmian whilst driving to the appointment on 4 April 2011:
Mr Antill: Do you recall when you first became aware that Charm had made a will?
Rosemary: Um yes. It was in the car when I was driving Charm to Professor Fonda, and she said, 'A terrible thing has happened', and she was so ashamed. She said, 'I've signed a will. They came on Saturday morning, and I was in the kitchen, and they all came into the kitchen' which was, what, four, five people, 'And put the will in front of me and said, "We'd like you to sign your will now"', and she had the good sense and the good manners to say, 'Thank you very much for doing this, but I'll need to go over it and read it again, and when I've done that, I'll get back to you about signing'.
Mr Antill: So this is what she's telling you ?
Rosemary: Yep.
Mr Antill: [O]n your way to see Dr Fonda?
Rosemary: Yep.
Mr Antill: So she told you they came to see her on a Saturday?
Rosemary: Yes.
Mr Antill: And she, effectively, refused to sign the document?
Rosemary: Well, yes, she did, except the (indistinct) the two witnesses, and it's a Saturday morning. So for heaven's sake. You must sign it now.
Mr Antill: That's what she told you?
Rosemary: Yes.
Mr Antill: Right?
Rosemary: That was her impression of what happened.
Mr Antill: And did she tell you anything about what was in the will?
Rosemary: Yep. She told me the percentages. I don't know if they were - Denise, 40 per cent; Cilla, 20 per cent; and the two boys, 10 per cent and me - - - The two boys.
Mr Antill: When you said two boys, which boys?
Rosemary: The two - Cilla and - Sasha and Simon.
Mr Antill: Yes?
Rosemary: And we were to get 10 per cent, me plus my boys divided between us.[516]
205 Following the appointment on 4 April 2011, Dr Fonda provided a written report dated 4 April 2011 to Dr John Hatfield, who at that time was Charmian's general practitioner in lieu of Dr Wright. The report was as follows:
I reviewed Charmian today with her niece, Rosemary. As you know, there has been a bit of to and fro between yourself and Lesley Wright, depending on her preference at any one time. You are currently her chosen doctor.
SUMMARY OF KEY ISSUES.
Early Alzheimer's disease - stable.
Paranoia and delusions - stable.
Driving - not currently driving.
?Safety at home.
Vitamin D and Vitamin B12 deficiency.
Impaired hearing.
Updated Assessment and Recommendations
Neither she nor Rosemary feel there has been much change since she commenced on the Aricept, which she has been on now for about three months.
Interestingly, her MMSE has gone up from 22 to 27. She recalled 3/3 objects at three minutes and at 30 minutes, she could recall 2/3 objects.
I think we should conclude that the Aricept has been of some benefit if nothing else holding her decline. She should stay on this indefinitely. I have provided a further Authority script for 10 mg. Thereafter, you will be able to provide further scripts by simple phone Authority.
She was complaining about the nuisance of not having her licence and I have told her she cannot drive at this stage and my suggestion is just to let this be as she does seem to manage remarkably well without (despite her protestations). She is very preoccupied, as you know, about her driving. She lacks total insight to the incidences [sic] that caused her licence to be taken away. Rosemary says that she can frequently get very irritable and grumpy. Should this be troublesome then of course introducing a small dose of Risperidone would be indicated.
There are still episodes of paranoia and delusions but Rosemarie [sic] says this is not a problem at the moment.
...
- Her hearing is quite poor today as she was not wearing her hearing aid. She is going to get her batteries replaced.[517]
The letter also referred to various physical ailments that Charmian was experiencing, like her hearing loss, vitamin deficiency and weight loss.[518]
206 Following the conversation between Rosemary and Charmian on 4 April 2011 during which Charmian had provided Rosemary with a version of the circumstances in which the will had been executed, Rosemary made a further appointment with Dr Fonda for the purpose of assessing Charmian's testamentary capacity.[519] For the purpose of this assessment, Rosemary partially completed a 'Questionnaire to assess capacity'.[520] The balance of the questionnaire was completed by Dr Fonda based on information provided to him by Charmian during the consultation on 26 April 2011. In response to the question: 'Do you already have a Will? If so, approximately how long ago did you make it?', Dr Fonda recorded Charmian's answer as follows:
Denise came to her [with] a drawn-up will to sign giving everything to Denise and her family. And gave her a bill! Anything to get rid of them.[521]
What are the names of your relatives or dependents who might feel they have a claim on your wellbeing, or your financial affairs or your estate? This could be your spouse, partner, ex-spouse, ex-partner, children from current or previous relationships etc. Even if you do not want them to have a claim, it is very important that you list their names here.
208 Rosemary completed this part of the form as follows: 'Randal Watt, Rosemary, Lachlan [indecipherable], Deaseys.'[522]
209 Dr Fonda's notes of his discussion with Charmian regarding question 5 record her saying: 'Getting out of hand - I think I will give it to the Arts Centre where I enjoyed working for 15 years'.[523]
Please list anyone from your list who you might want to exclude from your Will, or who you would not want to make life style decisions or financial decisions or medical decisions for you. Please give me a brief reason why.[524]
211 Dr Fonda's notes of his discussion with Charmian in respect of this question are as follows:
- rings me up
Inconsistent: {I wouldn't exclude Denise .. See her- x3/year
{I would like to give to others who are not in my life
{I think I will give it to Art Centre.[525]
The next few questions deal with the assets you have.
a) Properties, including address and approximate value. Is there any debt on this property or other debts you have?[526]
213 Rosemary wrote in response to this question '5 Huntingtower Road, Armadale, 2.8M'. Dr Fonda's notes of Charmian's response to this question are as follows:
What other sources of income do you have e.g. shares, investments, bank accounts. Which bank? What shares? Approximate value?[528]
215 In response to this question, Rosemary wrote: 'Share portfolio $2.5 mill'. Dr Fonda's notes of Charmian's response are as follows:
Self manage [with] accountant/+ share broker CBA
? ½ million 2 million could be goes up + down[529]
216 Dr Fonda provided a written report to Rosemary dated 26 April 2011. The first part of Dr Fonda's report provided a summary of the information provided to him by Charmian during the assessment:
As best I can understand, your aunt had no prior Will until a couple of weeks ago when a distant relative, Denise Pringle (she could not remember her married name) arrived at her home with a drawn up Will for her to sign, leaving the majority of her Estate to Denise Pringle and her family. She cannot recall the contents of the Will and whether anything was given to anyone else. When I asked her why she signed it, she indicated that she did "anything to get rid of them". She could not recall who the witness was. She was further annoyed to be subsequently provided with a bill to cover the expense of that occasion. She felt it was not a big issue as her "assets were not all that great".
When I asked her if she had intended doing anything about the Will, she indicated she had not but that it would be a good idea if she spoke to her accountant. She could not remember the name of her accountant. She was able to deduce (with prompting) that if she did nothing then the current Will may well stand.
I tried to understand her understanding of the state of her affairs as it now is. She tended to shrug off the current Will, indicating that she "will need to get that sorted out". (As I understood it from yourself, she had not initiated any such action to sort this out and it was only at your suggestion that this was being followed up).
It took some time for me to understand who her potential beneficiaries might be. She never married and has no children. She indicated she had one brother, Randall [sic] Watt, (deceased) who had one child only, yourself. Her father, Charles, was one of five or six siblings, one of whom was a sister. She had a daughter, Alice Pringle, who was your aunt's first cousin. Alice Pringle (now deceased) has two children, Denise and Julian. It is Denise who initiated this Will. Charmian indicated that there are many such relatives. I did not get clarity of the family on her mother's side.
I tried to establish who she believed legally might be entitled to her Estate. After some going forwards and backwards, she concluded that yourself (Rosemary Laycock) was her next of kin. The others were distant relatives.
I then tried to establish who she would really want to be beneficiaries of her Estate and she indicated that the process was "getting out of hand. I think I will give it to the Arts Centre where I happily worked for 15 years". She was inconsistent [as to] who else might be beneficiaries and when I asked about Denise she indicated she would not exclude Denise, as Denise did keep some form of contact. She recognised that you should be a greater beneficiary than Denise. She might give to various other relatives a lesser amount, but she was not able to clarify any of this and particularly have a concept of the relative amount she might want to give. She indicated she had not really thought about it (despite signing a Will).
I tried to establish what her assets might be. She was most evasive, especially initially, as she was very suspicious as to providing any information to me that might influence my assessment of her Capacity. In the end, I established that she owned her own home without debt at the above address. She had no concept of its value and after I gave her a range of choices, initially she thought that it might be $200,000. When I came back later and suggested it must be worth a lot more and gave her further options, she concluded it would be well under a million. (You indicated it would [be] worth in the order of $2.8 million). On two occasions, she indicated I should tell her my assets if she was to tell me hers.
In regards to her other assets, she indicated she had a share portfolio, which she manages with her accountant. Again, initially I could get no concept of its worth and after giving her a whole range of prompts up to a couple of million dollars, she agreed to a figure around half a million dollars. Later, she agreed it could be worth a couple of million dollars depending on the current state of the market. (You indicated it was valued at around $2.5 million).
She was aware that she had recently changed her bank account (since she is no longer allowed to drive) to the Commonwealth and has another account. (Information confirmed with yourself).[530]
217 The second part of Dr Fonda's report appears under the heading 'ASSESSMENT':
It was not easy completing this assessment because Charmian was both evasive a lot of the time, suspicious as to the reason for doing the assessment, and cautious in case information she gave might compromise the assessment for Capacity. I frequently reassured her that my involvement only was to assess her Capacity.
I have previously diagnosed her as having early Alzheimer's disease and this in itself does no[t] preclude a person from having Capacity. However, it was clear that she does have short term memory impairment as well as paranoia.
My overall conclusion was that, at this time, Charmian Watt lacks Capacity to make or change a Will and this certainly would have been the case at the time of making her Will within the last month or two. With a lot of prompting, she does have an awareness of who her beneficiaries might be and to some extent the value of her Estate. However, this contraindicated her earlier statement that her "assets were not all that great". Her responses were inconsistent and I was able to influence her decision making. Furthermore, she really has no idea at this time who she would want to benefit from her Estate and to what extent.
It is all this, together with her susceptibility to be unduly influenced as was demonstrated by signing of the Will recently, as well as her suspiciousness and general lack of cooperation with this assessment process that leads me to conclude that at this time, she does not have Capacity.
However, I think it is not inconceivable that she may be able to demonstrate Capacity if she were properly instructed by someone she trusts, i.e. her accountant or lawyer, to fill in my assessment forms accurately and then re-present for assessment with the knowing intent of the purpose of the assessment and her desire to have this assessment performed. It would further aid her cause if she had a formed view of how she would wish her Estate to be divided.
The background information that I had sent her certainly gave a clear framework for this and I would be happy to provide this information again. Until such time as this process were to take place, I would conclude that she does not have Capacity to make or change her Will and particularly that any Will done in the last few months would be invalid.
I suggest a copy of this report be provided to her accountant. Further, should she wish to proceed with drawing up another Will, she should have her lawyer advise and assist her.[531]
218 Dr Fonda prepared an expert report dated 15 September 2024. The questions he was asked to address included:
There are multiple forms of dementia of which Alzheimer's is the most common. Dementia per say [sic] does not preclude a person having Capacity to make or change a Will. Alzheimer's disease is not an all or none condition where you move from having normal function with ability to make important decisions, to impaired cognitive function with inability to make important decisions.. However, it is only a matter of time when you cross that line between one and the other.
In the absence of significant BPSD [behavioural and psychological symptoms of dementia] such as delusions and paranoia, it would be more likely than not that a person with early Alzheimer's would have Capacity to make a Will. They may not necessarily know the extent of their assets but should have a broad concept of that. They should know who their significant beneficiaries would be and they should be able to distinguish those that would have a greater claim or need of their assets.
However, there comes a time eventually when all of this information becomes blurred, and a lot of prompting becomes necessary to try to extract relevant information. At that time Capacity would become increasingly questionable.
All the above presupposes that the person is not suffering from paranoia and delusions that might affect their ability to make sound judgements. Furthermore, older people, especially those with dementia are more vulnerable and susceptible to undue influence and elder abuse.
- Are there any contributing medical conditions that could cause a significant decrease in cognitive function in a short period of time?[532]
219 Dr Fonda's response to question 6 included the following: 'In the case of Ms Watt, there is nothing to suggest that she was suffering from any condition from the time I first saw her in November 2010 to the time of assessing her Capacity in April 2011. In fact, based on the MMSE, her score had actually improved in that time.'[533]
220 Dr Fonda also provided the following responses to the following questions:
Between the time of signing her Will on 18 October 2010 and when I first saw her on 24 November 2010 (five weeks later), there was nothing to suggest that her condition had changed between those two time intervals. In fact, based on her MMSE score, but not on her niece's observation, she may have even improved.
There is nothing to suggest from the information provided that she had any other medical conditions from around the time of mid October to the times I saw her in November, December and the following April. There is nothing to suggest she had a stroke in that time interval.
Would the deceased's cognitive impairment at the time have the potential to impact her Capacity to make or execute a valid Will?
As indicated previously, Alzheimer's disease per say [sic] does not preclude the ability to make a Will at a particular point of time. The same applies for vascular dementia. In the case of Ms Watt the critical additional element is what else may be affecting her judgement as a result of her dementia. In her case, BPSD with delusions and paranoia.
I note the Will was executed on 18 October 2010. I note an entry by Cornelia Brune on 16 September 2010 (reference 34) where it was "advised that Ms Watt is not competent to make lifestyle decisions, and that niece (EPOA Guardian) could invoke Power of Attorney if need be. Niece is aware of managing Ms Watt's financial affairs and developed a good safety net with the local bank. Niece was not aware of Ms Watt's wandering the streets but reported that aunt becomes very distressed at times and rings various people (including GP and police) to get advice and/or report stolen items".
I note in my letter of 13 December 2010 (reference 55) "apparently she called the police to accuse her niece of breaking in".
A key element in making a Will is to be of "sound disposing mind". Dementia per say [sic] does not preclude this but having delusions and paranoia certainly could. She had developed a belief (delusion) that her niece was breaking in, had changed her locks, had been wandering and got lost, and she had called the police (paranoia) prior to me seeing her. This appears to be apparent around the time that she was making her Will.
At such a time she could well have been quite vulnerable and susceptible to a third party influence and that could have lead [sic] her to make a Will. Ms Watt recalled having made a will but said she did not initiate this process herself. As I outlined in my Report of April 26, 2011 she could not recall what she actually gave and to who and on reviewing her Will now (reference 50) I note she gave 90% to a more distant relative (and her children) who had little contact with Ms Watt, and only 10% to her niece Rosemary (and her children) who was her primary carer and to whom she had assigned EPOA to just a few months earlier. When asked why she signed it she indicated that she "did anything to get rid of them". She did not think it was such a big issue "as her assets were not all that great". Further, she said she was annoyed to then be given a bill to cover the expenses.
When asked if she "intended doing anything about this Will "she indicated she had not but that it would be a good idea if she spoke to her accountant (whose name she could not remember). I am unaware if she did follow through on this advise [sic] but that certainly would be the correct thing to do if she was now unsure of her Will.
Regarding the solicitor who executed Will, it appears Ms Watt did not know him. As such it is likely he would not have been aware of her diagnosis of Alzheimer's disease and of delusions and paranoia directed in part at her niece. Furthermore, it is not clear who initiated the initial assessment for her Will, given she was happy not to have a Will at all. It is not clear who, if any of that family were present on the day the Will was being made or executed. This would be relevant as they could have prompted her before the solicitor arrived.
I concluded that meeting on April 26 with the following advise [sic] to her summarized in my Report as follows.
"However, I think it is not inconceivable that she may be able to demonstrate Capacity if she were properly instructed by someone she trusts, i.e. her accountant or lawyer, to fill in my assessment forms accurately and then re-present for assessment with the knowing intent of the purpose of the assessment and her desire to have this assessment performed. It would further aid her cause if she had a formed view of how she would wish her Estate to be divided".
So in summary in response to this question, her cognitive impairment manifest by impaired executive function (decision making, judgement, planning) together with her BPSD (behavioural and psychological symptoms of dementia), had significant potential to impact on her Capacity to make and execute a valid Will.
In your view and being aware of the elements of the tests for Capacity as outlined in the case of Banks versus Goodfellow (1870) LR5, QB549, would the deceased have had the required Testamentary Capacity to provide instructions and sign her Will in October 2010?
As indicated earlier, I had not previously seen her Will nor known the contents in any way until receiving your Letter of Instruction.
I feel the following points are important to make.
1. She executed an Enduring Power of Attorney to her niece in July 2010.
2. She did have a general understanding of who her beneficiaries might be but clearly not their potential order of merit (90% to distant relative, 10% to a niece involved in her care).
3. She had a general idea of what her assets were, but she trivialized the amount and significance.
4. She had developed delusions and paranoia from time to time directed at her niece. The timeframe of this is not clear but appears to have been at least during that relevant period.
5. She would appear to have been quite vulnerable and easily influenced, given she indicated, as documented in my assessment of 26 April 2011, that "a distant relative, Denise Pringle, she could not remember her married name, arrived at her home with a drawn up Will for her to sign". She could not "recall the contents of the Will and whether anything was given to anyone other than Denise Pringle and her family".
In summary, I do not believe Charmaine [sic] Watt had the necessary Testamentary Capacity to make or change her Will in October 2010. There is nothing to suggest her medical condition was any different between the time of execution and the time that I first saw her in November 2010 and then on 26 April 2011 when I performed a formal assessment re Capacity.[534]
221 Dr Fonda gave evidence that, in his opinion, Charmian did not have capacity to make a will in October 2010. This opinion was based on Charmian's paranoia and delusions directed at Rosemary:
Dr Fonda: The fourth thing is the question - what I call paranoia/delusions. That, to me, is very - it screams at me, paranoia and delusions, and she's got an 'affliction'. I was looking for the word before - it would appear to me against her niece. It just comes through repeatedly in all the things that are said about her changing locks, yet at the same time, her niece brings her to appointments. At other times she's ringing up her niece, even though she's changing locks. So she's got some affliction to the niece that is well-reflected back in September and documented expertly by experts in the field, in the memory clinic and document it, and I see no difference to that when I assess her. So I see that it is possible that she could write a will. I don't find that - and if you say it's complicated, maybe - maybe someone could help guide her on ideas and all that, that doesn't - that's not my issue, and she could remember. As we can see, she does have - no, she hasn't lost her memory. She's, no, she's in that early stage and that doesn't - her mini-mental score doesn't preclude all these other tests - capacity to make or change her will. So that's not the issue. The only issue there is the point four that on that form, 'is there an affliction of mind?', and I am quite happy to say under oath that she had an affliction of the mind and she may well - because you raised the question, I hadn't thought of it, having been told and denied her licence, which is her just absolute obsession. In September she goes and changes the will later. No, her niece is not foremost her favoured person at that stage. So, I think nothing to me is inconsistent other than maybe the question of - and that's where I came to the conclusion of why I wanted her to go to do something independently of everyone else with people she knows and trusts and work it all out from there.[535]
222 By letter dated 23 September 2010 from VicRoads, Charmian was advised that her driving licence would be suspended from 7 October 2010.[536] The letter refers to the 'specialist report which you recently submitted to VicRoads,' and states: 'I have considered your doctor's report that states that you are suffering from cognitive impairment...'[537] The specialist report referred to was that which was provided by Dr Moran and Dr Scharf following their assessment of Charmian on 15 September 2010. This is apparent from the report they provided to Dr Wright on 15 September 2010 which states: 'I have informed Ms Watt that we do not feel that she is safe to drive and notified VicRoads of the same.'[538]
223 Although it was the report of Dr Moran and Dr Scharf which resulted in the suspension of Charmian's licence, Charmian believed Rosemary, together with Dr Wright and Rosemary's husband Charles, were involved in the suspension of her licence. Rosemary gave the following evidence:
His Honour: Do you know whether or not Charm held anyone in particular responsible for the loss of licence?
Rosemary: Me, Lesley Wright, um Charlie, um
His Honour: What do you base that on?
Rosemary: Because she thought that we'd rung VicRoads and sent a letter and said this woman is not fit to drive, and that made her furious.
His Honour: But do you recall did she actually say - did Charm say anything specific to you indicating that she believed that you were partly responsible for the loss of licence?
Rosemary: Oh yes.
His Honour: And what's your recollection?
Rosemary: Ah yes. She said, 'It's your fault. You were involved with this'. And I'd say, 'No. I actually wasn't', and I actually wasn't, but Lesley Wright can take the ah credit for that. Lesley Wright organised the withdrawal of her driver's licence.[539]
224 I accept Rosemary's evidence that Charmian believed that Rosemary had been involved in the loss of her licence. Her description of Charmian as 'furious' as a result of the suspension of her licence is not an exaggeration. On 12 October 2010, Charmian attended Dr Wright's medical clinic without an appointment, wishing to see Dr Wright. Dr Wright's notes of 12 October 2010 are as follows:
Here without an appointment - driving licence has been suspended.
OT assessment and geriatrician's report required to reinstate licence. discussion - no insight.[540]
225 The reference to 'OT assessment and geriatrician's report required to reinstate licence', is based on the VicRoads letter of 23 September 2010 which stated: 'VicRoads will consider the return of your licence if you can provide a satisfactory Geriatrician's report which indicates your suitability to drive'.[541] Dr Wright gave evidence that during Charmian's consultation on 12 October 2010 she was very upset about the suspension of her licence.[542]
226 In a progress note of a consultation with Charmian on 25 October 2010, Dr Wright recorded:
Still very up in arms about driving and wanting to have the decision reversed - has appt Dr Fonda on 20/11 - wants to bring that forward
[O]therwise well and seems quite calm and sensible in other ways - still very down on her niece.
[S]ays she is taking her tablets but ran out of Atacand.[543]
227 Dr Wright accepted that the reason Charmian may have been 'very down' on Rosemary was that she thought that Rosemary was trying to put her in a nursing home and also because she blamed Rosemary for the loss of her licence.[544]
228 Rosemary's evidence, which I accept, is that Charmian was very angry with her because she believed Rosemary, together with her husband Charles, and Dr Wright, had been involved in the decision by VicRoads to suspend her licence. Rosemary also gave evidence that prior to the suspension of Charmian's licence she had reported to Dr Wright that Charmian had issues with her driving.[545] Dr Wright gave evidence that 'presumably' Rosemary had voiced concerns to her about Charmian's driving.[546]
229 On 8 September 2010, Ms Brune visited Charmian at her house.[547] Ms Brune prepared a progress note on 8 September 2010 setting out details of a phone call with Rosemary. The note includes the following: 'Rosemary reported that Mrs Watt got lost driving recently and that it took her 2.5 hours to find her way back home'.[548] One of the items listed by Ms Brune to be actioned was 'report to VicRoads (by aged care registrar) and cancellation of driving licence.'[549] In September 2010, Dr Moran was an aged care registrar with CDAMS. His report to VicRoads the following week on 15 September 2010 resulted in the suspension of Charmian's licence.
230 Although Rosemary was not directly responsible for the suspension of Charmian's licence, Rosemary was involved in the suspension of the licence.
Charmian's apprehension that Rosemary would place her in a nursing home
231 On 25 October 2011, Charmian was admitted to a Bupa aged care facility located at 349 North Road, Caulfield South, where she resided until her death on 2 November 2020.[550] Prior to October 2011, Charmian had been residing at 5 Huntingtower Road, Armadale since 1964. Initially, Charmian lived at Huntingtower Road with her mother until 1980 when her mother moved to Villa Maria Home for the Blind in Prahran.[551] Thereafter, Charmian lived at Huntingtower Road on her own.
232 Prior to 2010, Charmian was managing well with activities of daily living. On 4 March 2009, Charmian was visited at home by Ms Shubova.[552] An initial assessment dated 4 March 2009 recorded that no impairment had been identified with Charmian's ability to perform instrumental and personal activities of daily living.[553] Ms Shubova wrote to Charmian on 17 June 2009 and noted that Charmian appeared to be 'managing very well at home'.[554]
233 From approximately June 2010, Charmian's ability to manage at home was impaired. A health assessment dated 8 June 2010 records that Charmian was impaired with housework, home maintenance and home safety, but was otherwise normal with all other activities of daily living.[555]
234 On 27 July 2010, Charmian received a home visit from Ms Wong. In a fax dated 6 August 2010 from Ms Wong to 'Christine' at CDAMS, Ms Wong reported that she had visited Charmian's house on 27 July 2010 and her home environment 'appeared chaotic and disorganised'.[556] The fax also recorded that Charmian 'remained fiercely independent however she had agreed with an appointment with CDAMS'.[557]
235 On 8 September 2010, Ms Brune visited Charmian at her home.[558] In an initial assessment dated 8 September 2010,[559] Ms Brune recorded that Charmian was independent with personal activities of daily living but there were issues, namely 'burning food on stove' and 'little evidence of food in house'.[560] Ms Brune also noted Charmian was 'highly oppositional to any input'.[561]
236 In a letter from Brenda Rhodes, care manager at the Royal Freemasons Outreach Community Program, to Dr Wright dated 15 September 2010, Ms Rhodes advised that Charmian had accepted a community aged care package and services had commenced that day.[562]
237 In a CDAMS progress note dated 15 September 2010, Ms Brune recorded a phone call between herself and Ms Rhodes. Ms Brune recorded:
Freemasons' only recently picked up CM [care management] for Mrs Watt. Brenda saw her only once and has implemented social visit x1/week and MOW [Meals on Wheels] as these were the only services Mrs Watt agreed to. Brenda has met with Mrs Watt only once. She noticed burn marks on stove and has some concerns about her safety esp. driving. Brenda noted that Mrs Watt is very suspicious and afraid, that she will be placed in resi care.
Discussed today CDAMS Ax [assessment] and ... need for placement, which will need discussion with niece Rosemary.[563]
238 A CDAMS progress note by Ms Brune dated 16 September 2010 records a telephone call between herself and Rosemary on 15 September 2010. The note includes the following:
Discussed residential care placement vs risk of staying at home. Rosemary stated she feels rather overwhelmed with the situation as aunt is very resistive to any interventions and is not agreeing to placement.[564]
Rosemary gave evidence that this note was consistent with her recollection that Charmian was not agreeing to a residential care placement, 'after I discussed it many times with her'.[565]
239 On 22 September 2010, Ms Brune referred Charmian to ACAS.[566] The reason for the referral was stated to be 'for approval of permanent residential care' and the recipient of the referral was directed to 'contact niece Rosemary for appointments'.[567] A progress note by Ms Wong dated 15 October 2010 records a telephone conversation between herself and Rosemary, during which Rosemary stated that she wished to defer the ACAS assessment because she believed that Charmian was not currently at risk as she was no longer driving.[568]
240 Rosemary gave evidence, which I accept, that when she raised with Charmian the prospect of her going into a nursing home, Charmian was very angry and that anger was directed at Rosemary.[569] Rosemary gave evidence that the discussion with Charmian about her going into a nursing home was 'around 2010, September maybe'.[570] This evidence is consistent with Ms Brune's progress note of her telephone conversation with Rosemary on 15 September 2010 wherein Rosemary stated that Charmian 'is not agreeing to placement'.[571] This file note supports a finding that Rosemary had discussed with Charmian the prospect of placement in a nursing home prior to 15 September 2010. Rosemary's evidence is also consistent with Dr Wright's evidence that when she met with Charmian on 10 September 2010, she felt there had been a big change in what had previously been a warm and caring relationship between Rosemary and Charmian.[572] I infer that by 10 September 2010, Rosemary had raised with Charmian the prospect of her placement in a nursing home.
241 The classic formulation of the legal test for testamentary capacity was stated by Cockburn CJ in Banks v Goodfellow[573] ('Banks') as follows:
It is essential to the exercise of [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[574]
243 In Kantor v Vosahlo[578], the Court of Appeal stated the test as follows:
[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.[579]
As with other 19th century common law principles governing the legal effect of mental illness, the statements in Banks v Goodfellow no longer reflect modern medical knowledge. It is now recognised that there are a broad range of cognitive, emotional and mental dysfunctions, the effects of which are difficult to identify precisely or delineate from the exercise of ones 'natural faculties' and the reasoning capacity of the 'sound' mind. Moreover, rules as to testamentary capacity must recognise and allow for the natural decline in cognitive functioning and mental state which often attends old age.
...
A testator may have testamentary capacity even if his or her cognitive functioning is impaired in the sense of not being as acute as it once was or because he or she falls within a very low percentile of the community for that functioning. However on both the original Banks v Goodfellow formulation and its modern restatement, more is required than a capacity to identify those persons who have a socially acceptable claim on the estate. A capacity to appreciate that there are competing claims on the estate and to make a deliberative choice, even a badly reasoned or capricious one, to ignore or compromise those claims is necessary.
It is also important to remember that the issue is one of capacity. It is not necessary that the testator in fact turn his or her mind to the extent of his or her estate, recall all who have a claim on it, and weigh their claims. It is merely necessary that a testator have a capacity to do so if he or she wishes. A testamentary disposition is not invalidated if a testator with that capacity decides on a capricious and indeed random disposition.[582]
245 The fact that a testator is suffering from dementia does not prevent the testator from having testamentary capacity. As Ashley J observed in Norris v Tuppen:[583]
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 [required].[584]
Where a testator suffers from dementia but has lucid intervals, the Court's inquiry as to testamentary capacity is directed to whether the will was made in such an interval.[585]
246 As to the first element of the test in Banks (capacity to understand the nature of the act of making a will and its effects), it is not necessary to establish that the testator was capable of understanding the legal effect of all of the clauses of the will. However, it must be shown that the testator understood they were executing a will and the practical effect of its central clauses, including the dispositions of property made.[586]
247 As to the second element of the test in Banks (capacity to understand the extent of the property which the testator is disposing), no high level of precision is required to be demonstrated in relation to the testator's knowledge of their property as at the date of execution of the will.[587] It is not necessary that the testator must have knowledge 'of each particular asset or knowledge of the value of that asset, or even a particular class of assets.'[588]
248 The third and fourth elements of the test in Banks (awareness of those who would have a natural claim to the estate and the ability to evaluate and discriminate between such claims) are often grouped together.[589] The testator must be aware of those who might reasonably be thought to have claims upon his or her bounty, and the basis for and nature of those claims, and have the ability to evaluate and discriminate between the respective strength of those claims.[590]
249 In a case involving a testator who had left all his property to his wife and excluded all other relatives from any share, Erskine J observed that the question is 'whether [the testator] was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.'[591] Furthermore, '[i]f he had not the capacity required, the propriety of the disposition made by the Will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.'[592]
250 In the case of wills which disinherit the testator's immediate family or make little or no provision for a person ordinarily expected to be a beneficiary (known as 'inofficious wills'),[593] there is considerable difficulty in 'distinguishing between a "harsh, unreasonable judgment of character" which might be said to be inconsistent with a sound disposing mind and a "morbid aberration" which so affects the testator's judgment of a person with a natural claim on the testator's bounty that it warrants the conclusion that the testator lacked testamentary capacity'.[594]
251 In Re Estate of Griffith[595] ('Griffith'), a case involving a testatrix whose will made no provision for her only son because she was disappointed with his decision to join a religious order and with his choice of career, Gleeson CJ noted:
The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. ... Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.[596]
252 The fact that a will contains a bequest which, viewed objectively, is harsh will not, of itself, result in the will being invalid. As Gleeson CJ observed in Griffith:
Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.[597]
253 In Geroska v Zlatevski,[598] the testator had excluded his son from his will and bequeathed his whole estate to his daughter. The son challenged the testator's testamentary capacity, pointing in part to his exclusion from the will as creating doubt about capacity. The Court noted:
The exclusion of a person who has a natural claim on a deceased's bounty may be evidence that casts doubt on the presumed competence of a testator ...
The question is not whether a testator knows they are excluding someone who has a claim, but whether a testator was, at the time, capable of recollecting who they were, understanding their respective claims and deliberately forming an intelligent purpose of excluding them from any share of their property.[599]
254 Where, as in the present case, there is a conflict between medical evidence and evidence from the solicitor who prepared the will, greater weight may be given to the solicitor's evidence. As the Court observed in Gooley v Gooley:[600]
It is clear that while the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is ultimately a question of fact for the trial judge, and lay evidence may equally be relevant ... It has generally been said that neither expert medical evidence nor the opinions of attesting witnesses as to competency are on their own decisive ...
An experienced solicitor's evidence is capable of being "valuable evidence of testamentary capacity" because an "experienced solicitor... gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path" ... Equally a solicitor's evidence may, depending on the circumstances, have considerable weight where the solicitor does not have a specific recollection of a will being signed but gives evidence of his or her usual practice ...
...
However the Court ought not accept the evidence of a solicitor as to testamentary capacity or knowledge and approval where the solicitor's usual practice or conduct in relation to the making of any particular will is deficient, including where the solicitor has not asked the client open-ended questions to allow a proper assessment to be made.[601]
255 In Drivas v Jakopovic,[602] the testatrix had made prior wills which provided that in the event the testatrix's son or daughter predeceased the testatrix leaving children surviving them, those children should take their parent's share. However, the testatrix subsequently changed her will in September 2007, providing for her son's children but not providing for her daughter's children. The daughter of the testatrix's daughter challenged the September 2007 will on the basis of a lack of testamentary capacity.
256 The solicitor who prepared the September 2007 will had no independent recollection of the testatrix, but gave evidence of his usual practice concerning the preparation of wills. The solicitor's evidence was that he was satisfied the testatrix had testamentary capacity at the time of making the September 2007 will, as in accordance with his usual practice he would not otherwise have made the change. However, the medical evidence indicated the testatrix did not have testamentary capacity. At first instance, Parker J, preferring the evidence of the solicitor, found the testatrix had testamentary capacity when she signed the September 2007 will.
257 On appeal, the Court of Appeal upheld Parker J's finding, stating that Parker J was correct to have placed 'significant weight' on the solicitor's evidence.[603] The Court of Appeal observed '"[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths".'[604]
258 Similarly, in Haberfield the testator made a number of wills, including in 2006, 2012 and 2013. Under the 2006 will, the defendant (one of the testator's daughters) stood to inherit 40% of the estate, while under the 2012 and 2013 wills, stood to inherit less. It was common ground the testator was suffering from dementia to some degree in 2012 and 2013. The defendant sought to challenge the grant of probate on the ground the testator lacked testamentary capacity.
259 Cavanough J concluded that the evidence as a whole did not establish the testator lacked testamentary capacity. Although medical evidence from a general practitioner, geriatric specialist and general nurse indicated the testator's dementia was sufficiently advanced to impair testamentary capacity, the evidence from the solicitors who prepared the will was that the testator had the requisite capacity. Cavanough J placed more weight on the solicitors' evidence, accepting that 'doctors may know what dementia is in medical terms but they do not necessarily know how the law treats dementia for testamentary capacity purposes.'[605] In particular, Cavanough J stated:
Both Mr Tait and Mr McCulloch saw [the testator] several times in 2012. Mr McCulloch saw them several times in 2013. Mr Tait was a solicitor of very great expertise and experience in relation to wills and estates and Mr McCulloch was working under his supervision. The fact that neither of them had any inkling that [the testator] was incapacitated is, in itself, a strong indication that [the testator] had, at least, sufficient cognitive ability to make a will during the relevant period.
As to the 2013 will in particular, it is true that, once again, Mr McCulloch could not recall all the specifics of the meetings. However, it is plain that he perceived no cause for concern at that time. That in itself provides significant support for the proposition that [the testator] had sufficient capacity to make the 2013 will and that he knew and understood its terms (which had been explained to him).[606]
260 The plaintiff's counsel submitted that if the Court concluded that Charmian had testamentary capacity on 1 October 2010 but did not have testamentary capacity on 18 October 2010, the Court could nevertheless make a finding of testamentary capacity by relying on the rule in Parker v Felgate.[607] Pursuant to this rule, a will which has been drawn up in accordance with instructions given by a testator at a time when he or she had full testamentary capacity but executed at a time when he or she no longer had such capacity would nevertheless be valid provided that the testator knew the document he or she was signing conformed with the instructions he or she had given to the draftsman and approved it by executing it in those terms.[608]
261 In light of my finding that Charmian did have testamentary capacity on 18 October 2010, it is not necessary to address the potential application of the rule in Parker v Felgate. Were it necessary to do so, a potential obstacle to the application of the rule is that the will as executed contained a charging clause in clause 3 which was not discussed on 1 October 2010 when Mr Muir took instructions for the preparation of the will.[609] Also on 1 October 2010, Charmian did not give instructions that Mr Muir should be named as executor, albeit such instructions were subsequently provided on 5 October 2010.
262 In order to establish that a document is the last valid will of a testator, it must be proved that he or she 'knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing'.[610] In other words, the requirement of knowledge and approval requires that 'the will contains the real intention and reflects the true will of the testator'.[611] Knowledge and approval does not require the testator to have a precise legal understanding of the will. Rather, it is sufficient 'if the testator is shown to know and approve the gravamen of the will.'[612]
263 The concept of knowledge and approval is distinct from testamentary capacity. As observed in Re Estate of Church:[613] 'the will-maker may have testamentary capacity, but it may be found that he or she did not know and approve of the contents of the will, notwithstanding that he or she understood its contents, if the person did not exercise his or her capacity to comprehend and appreciate the claims to which he or she should give effect.'[614] Evidence relevant to testamentary capacity will also be relevant to knowledge and approval.[615]
264 A presumption that the testator knew and approved the contents of the will arises once it is proved that the testator had testamentary capacity and the will was duly executed.[616] This presumption can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated and approved the contents of the will, in which case the burden shifts to the propounder to adduce affirmative evidence that the testator knew and approved the contents of the will.[617] The Court of Appeal in Veall v Veall[618] explained that to rebut the presumption:
The circumstances sufficient to displace the presumption of knowledge and approval must give rise to a suspicion that the testator either did not know the true contents of the will or did not assent to them. Circumstances that arouse a suspicion only of fraud or undue influence will not displace a presumption of knowledge and approval. But circumstances arousing a suspicion of fraud or undue influence will often also support a well-grounded suspicion about the testator's knowledge and approval.[619]
265 Evidence that a will has been prepared by a solicitor and read to the testator is 'powerful evidence' in establishing that the testator knew and approved of its contents, but it is not conclusive.[620] The 'most satisfactory' evidence of actual knowledge of the contents of the will is 'evidence of instructions given by the testator for the will, or that the will was read over by or to the testator.'[621]
266 In late September 2010, Charmian asked Cilla for the contact details of a solicitor who could assist her with the preparation of a will. The major reason Charmian wanted to make a will was to ensure that Rosemary would only receive a small part of her estate. I infer that Charmian deliberately chose a solicitor other than Mr Woolcock, who had prepared the power of attorney executed on 12 July 2010. Charmian wanted to ensure that Rosemary had no knowledge that she was executing a will. The bequest which Charmian made to Rosemary equated to only 2.5% of her estate. This relatively insignificant bequest was a by-product of the ill-will which Charmian had towards Rosemary in late September and October 2010.
267 On 23 September 2010, VicRoads advised Charmian by letter that her licence would be suspended as of 7 October 2010.[622] Charmian believed, correctly, that Rosemary had been involved in the suspension of her licence. In late September 2010, Charmian also believed that Rosemary was giving consideration to having her placed in a nursing home. This belief was also correct because Rosemary had discussed the prospect of placement in a nursing home with Charmian prior to 15 September 2010. These two considerations were the key drivers for Charmian's decision in late September 2010 to make a will with a relatively small bequest to Rosemary.
268 Putting to one side the question, addressed below, of whether at the time she executed the will Charmian was affected by paranoia or delusions, I am satisfied that Charmian understood:
(i) the effect of making a will;
(ii) was aware of the general nature and value of her estate;
(iii) was aware of those who would have a natural claim to the estate; and
(iv) was able to evaluate and discriminate between such claims.
I am also satisfied that Charmian knew and approved the contents of the will at the time it was executed and comprehended the effect of what she was doing.
269 I do not understand counsel for the defendant to have contended that Charmian did not understand the effect of making a will when she executed the will on 18 October 2010. For the sake of completeness, I shall record the basis for my satisfaction that Charmian did understand the effect of making a will.
270 On 18 October 2010, Charmian was 85 years of age and had never previously made a will. Charmian made a deliberate decision in September 2010 to make a will. She understood that by making a will she could control the distribution of her estate amongst the named beneficiaries in the will. I accept the evidence of Mr Muir that when he met with Charmian on 1 October 2010 she fully understood the concept of wills, the role of an executor and the need for the selection or nomination of beneficiaries.[623]
271 I am satisfied that when Charmian executed the will on 18 October 2010 she continued to have the same level of understanding of the effect of a will as she had when she provided instructions to Mr Muir on 1 October 2010. This conclusion is reinforced by the discussion which Charmian had with Mr Muir when she signed the will. Charmian told Mr Muir that she would like to consider the possibility of making provision for some of her other cousins and that she would give some thought to that.[624] The fact that Charmian was contemplating changing the beneficiaries under the will supports a finding that she fully understood the effect of the will she had executed.
272 Mr Muir's file note of his meeting with Charmian on 1 October 2010 includes the following:
Charmian also gave me a brief description of her assets which she said were confined to the property in Huntingtower Road, a portfolio of shares which had dropped in value in recent years and money in some bank accounts.[625]
273 Charmian's observation that the value of her shares had decreased in value in recent years is almost certainly a reference to the impact of the global financial crisis in the period 2008 - 2009 upon the value of her share portfolio. The observation which she made supports a finding that she did have an appreciation of the value of her shares. The fact that Charmian had made this observation also supports an inference that in October 2010 Charmian had a general appreciation of the value of her house and the money she had in her bank accounts.
274 I have made a finding that Charmian paid Mr Muir's account for the preparation of the will. Mr Muir's invoice for $1,030.30 was paid by cheque on 22 November 2010. Plainly, the invoice was not paid by Rosemary because she was unaware that Charmian had a will until she was told by Charmian on 4 April 2011. The fact that Charmian paid an invoice for an account in excess of $1,000 supports an inference that she was aware that she had sufficient funds in her bank account to cover the size of the invoice.
275 I place no weight on the evidence given by Dr Fonda of his discussion with Charmian on 26 April 2011 during which Charmian displayed a poor appreciation of the value of her assets. For reasons set out later in this judgment I have concluded that Charmian's cognitive function declined significantly between October 2010 and April 2011.
276 There is no evidence that Charmian owned assets other than the three categories of assets which she identified during her meeting with Mr Muir on 1 October 2010. Charmian was aware of what she owned. It is not necessary to establish a high level of precision as to the value of the identified assets.[626]
Awareness of the persons who had a natural claim to the estate and the ability to evaluate and discriminate between those claims
277 Counsel for the defendant advanced the following submission in respect of the third and fourth elements of the test in Banks:
As at October 2010, Rosemary was the closest living relative of Charmian and if Charmian did not make a will on 18 October 2010, Rosemary would be entitled to the entire estate of Charmian. In the circumstances it is submitted that it should be accepted that Rosemary was a person who had a natural claim to the estate of Charmian prior to Charmian executing a will on 18 October 2010.
Accordingly, the test for testamentary capacity required Charmian to be aware that Rosemary (and no one else) had a natural claim to Charmian's estate and required Charmian to be able to evaluate and discriminate Rosemary's claim.
It is submitted that there is no evidence that Charmian had that awareness and no evidence that Charmian was able to evaluate and discriminate Rosemary's claim.
Accordingly, the Court ought to find that the plaintiff has also failed to meet this aspect of the test.[627]
278 As at October 2010, Charmian's closest living relative was her brother Randal. He died on 13 June 2019.[628] The premise of the submission set out above is therefore incorrect. Rosemary was not Charmian's closest living relative when she executed the will in October 2010. In any event, it is plain that Charmian did evaluate Rosemary's claim on her estate and was able to discriminate between that claim and the claims of others. This is apparent from the fact that Charmian decided to bequeath 2.5% of her estate to Rosemary. The size of this bequest was a by-product of Charmian having made a deliberate decision that, relative to Denise (45%) and her three children (15% each), Rosemary and her three children would receive 10% of the estate.
Was Charmian detrimentally affected in disposing of her property by any mental illness or disorder?
279 Counsel for the defendant advanced the following submission:
There is an abundant amount of evidence that around the time that Charmian gave Mr Muir instructions for the will on 1 October 2010 and executed the will on 18 October, Charmian was suffering from a disorder of the mind in the form of dementia and, in particular, paranoid thoughts primarily directed towards her niece, Rosemary Laycock that her niece had:
a. Stolen her handbags
b. Attempted to break into her house via an upstairs window
c. Was trying to put her into a nursing home
d. Was responsible for Charmian's loss of her driver's licence.[629]
280 Charmian had been diagnosed with dementia on 15 September 2010 by Dr Moran and Dr Scharf. This diagnosis does not, of itself, warrant a finding that Charmian lacked testamentary capacity on 18 October 2010. Whether Charmian lacked testamentary capacity by reason of mental illness or disorder is to be determined in accordance with three propositions set out in the judgment of MacFarlan JA in Carr v Homersham:[630]
(1) It is insufficient to demonstrate the absence of testamentary capacity
to prove that the deceased acted on a material mistaken belief in
making his or her will.
(2) For a mistaken belief to rise to the level of a "delusion" which
affects the validity of the will, there must at least be a high degree of
irrationality in the belief and ordinarily evidence will be required
that there has been an attempt to reason the deceased out of the
belief, such that the deceased's adherence to it suggests that the
deceased has a mental disorder or deficiency precluding the deceased
from comprehending and appreciating "the claims to which he [or
she] ought to give effect": Banks v Goodfellow at 565.
(3) Whether or not there is such evidence, generally the circumstances
must be such that it can be inferred that the deceased was wedded to the belief irrespective of its truth. If that is not the case, the belief is
likely to be no more than a mistaken view, the holding of which
cannot be inferred to reflect on the deceased's mental competence.[631]
281 On 12 July 2010, Dr Wright witnessed Charmian's power of attorney. She met with both Rosemary and Charmian on 12 July 2010. Her notes of that meeting included the following:
Discussion re powers of attorney - in view of losing keys and handbags and becoming quite distressed - felt burglars were coming into her house - wants Rosemary to be her financial and medical power of attorney - understands the implications fully of both - that Rosemary could if need be sell her house and put her in a home etc and make medical decisions where she was not able.
Not taking her medication and has not had scripts filled - will do so today.[632]
282 Dr Wright gave evidence that she was satisfied on 12 July 2010 that Charmian had sufficient capacity to understand the documents which she signed.[633] Dr Wright gave evidence that she had made sure Charmian understood what she was signing by 'asking her what she understood about it and challenging her with questions'.[634]
283 On 27 July 2010, Ms Wong visited Charmian. Her note of that visit includes the following:
I visited [Charmian] at home on 27 July 2010. She had lost her handbags three times, stated it was stolen on one occasion.[635]
284 Ms Brune of CDAMS visited Charmian on 8 September 2010. Her notes of the visit include the following:
Mrs [sic] Watt reported that she had lost her handbag with money and cards/licence in it this am and that handbag had been stolen x3 over recent months (?paranoia, ?Misinterpretation of situation).[636]
285 Ms Brune made a further note on 8 September 2010 of a discussion with Rosemary which included the following:
[H]er aunt continues to accuse her of stealing money and handbags as well as breaking into the house and has become increasingly hostile towards her.[637]
287 Charmian had a consultation with Dr Wright on 28 September 2010. Dr Wright's note of the consultation includes the following: 'worried about people coming into her house and stealing things - certain people - losing car keys and getting new ones.'[640]
288 On 13 October 2010, Dr Wright wrote to Dr Fonda and referred Charmian to him for assessment. The referral letter included the following: '[h]er niece Rosemary luckily has power of attorney but she is not currently speaking to her niece and had in the last week called the police to accuse her of breaking into the house in the early hours of the morning.'[641]
289 Rosemary gave evidence that Charmian did accuse her of stealing a handbag:
His Honour: Did she ever accuse you of stealing the handbag**?**
Rosemary: Oh yes, she did, and she rang the police at about 11 o'clock at night and said, 'Somebody is breaking into my house. I can hear them. They're coming in the upstairs window'. And then she said, 'Oh it might be my niece'.[642]
290 Charmian told Rosemary the following morning that she had contacted the police the previous evening.[643] Thereafter, Rosemary attended Malvern Police Station and was informed that Charmian had told the police the previous evening that she believed that Rosemary was the person who had broken into her house.[644] Following her attendance at Malvern Police Station, Rosemary had a discussion with Charmian:
Rosemary: Well, yes. I explained to her I'd been to the police station and they were going to keep an eye on her, which comforted her, and that um there was no way I could possibly have got upstairs to that window. And she - right. She said, 'I - I can see that now'.[645]
291 Rosemary gave evidence that Charmian did change the locks on her doors. However, when the locks were changed Rosemary was provided with a set of keys.[646] Rosemary gave evidence that Charmian had also given Cilla a set of keys.[647] Rosemary gave evidence that at no stage was she ever locked out of Charmian's house.[648]
292 Charmian did accuse Rosemary of breaking into her house and stealing her handbag. However, this mistaken belief did not constitute a delusion. Charmian accepted Rosemary's explanation that Rosemary could not have broken into her house. Charmian was not wedded to the belief, irrespective of its truth, that Rosemary had broken into her house.[649]
293 Counsel for the defendant submitted that when Charmian executed the will on 18 October 2010 she had paranoid thoughts that Rosemary was trying to put her into a nursing home. Prior to 15 September 2010, Rosemary had raised with Charmian the prospect of Charmian going into a nursing home. Charmian was very angry with Rosemary when she raised this issue with her. This discussion took place shortly before Charmian asked Cilla for the name of a solicitor to help her prepare a will.
294 Counsel for the defendant submitted that when Charmian executed the will she had a mistaken belief that if she went to a nursing home Rosemary would be responsible for putting her there, when in truth the reason Charmian would be put into a nursing home was the loss of her cognitive functioning and her ability to live on her own.[650]
295 The enduring power of guardianship signed by Charmian on 12 July 2010 conferred upon Rosemary the power to decide where Charmian was to live, whether permanently or temporarily. Further, Dr Wright's note of her meeting with Charmian and Rosemary on 12 July 2010 records that she told Charmian, 'Rosemary could if need be sell her house and put her in a home.' When Charmian executed the will on 18 October 2010, she did not have a mistaken belief that Rosemary had the power to have her placed in a nursing home. In September 2010, Charmian believed, based on discussions which she had had with Rosemary prior to 15 September 2010, that Rosemary was giving consideration to placing her in a nursing home. This belief was neither mistaken nor delusional.
296 Counsel for the defendant also submitted that in September 2010 Charmian mistakenly believed that Rosemary was responsible for the loss of her driving license. Charmian did not believe that Rosemary was solely responsible for the loss of her driver's licence. Rosemary gave evidence, which I accept, that Charmian believed that Rosemary, together with her husband Charles and Dr Wright, were 'involved' in the loss of her licence.[651] Rosemary had expressed concerns to CDAMS practitioners in the period July to September 2010 regarding Charmian's ability to continue driving safely. This resulted in the referral of Charmian to be assessed by Dr Moran and Dr Scharf on 15 September 2010, which in turn led to the report to VicRoads resulting in the suspension of Charmian's licence.
297 The law treats as critical 'the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.'[652] It was unreasonable for Charmian to bear ill-will towards Rosemary because she believed that Rosemary was involved in the suspension of her driver's licence and was considering placing Charmian in a nursing home. Rosemary's concerns about Charmian's ability to drive safely and to live independently were reasonable. Nevertheless, Charmian's ill-will towards Rosemary as a result of these matters did not have the consequence that the distribution of her estate was affected by a disorder of the mind.
298 I do not accept Dr Fonda's evidence that Charmian lacked testamentary capacity in October 2010 because she had an affliction against Rosemary, being paranoia and delusions.[653] Dr Fonda gave the following evidence in respect of his opinion that Rosemary was suffering from paranoia and delusions:
Dr Fonda: It just comes through repeatedly in all the things that are said about her changing locks, yet at the same time, her niece brings her to appointments. At other times she's ringing up her niece, even though she's changing locks. So she's got some affliction to the niece that is well-reflected back in September and documented expertly by experts in the field, in the memory clinic and document it, and I see no difference to that when I assess her. So I see that it is possible that she could write a will. I don't find that - and if you say it's complicated, maybe - maybe someone could help guide her on ideas and all that, that doesn't - that's not my issue, and she could remember. As we can see, she does have - no, she hasn't lost her memory. She's, no, she's in that early stage and that doesn't - her mini-mental score doesn't preclude all these other tests - capacity to make or change her will. So that's not the issue. The only issue there is the point four that on that form, 'is there an affliction of mind?', and I am quite happy to say under oath that she had an affliction of the mind and she may well - because you raised the question, I hadn't thought of it, having been told and denied her licence, which is her just absolute obsession. In September she goes and changes the will later. No, her niece is not foremost her favoured person at that stage. So, I think nothing to me is inconsistent other than maybe the question of - and that's where I came to the conclusion of why I wanted her to go to do something independently of everyone else with people she knows and trusts and work it all out from there. And so I -
His Honour: I just need - sorry, I just need to be clear. Is it in fact your evidence to the court that Ms Watt did not have capacity to make a will in October 2010? Is that your evidence or do you not go that far?
Dr Fonda: Well, I drew that conclusion in my report and I would stand by that on the basis of paranoia and delusions.[654]
299 In the evidence set out above, Dr Fonda placed weight on the written reports he had reviewed which made references to Charmian changing the door locks on her house. This is quite understandable. At face value, these reports suggest that Charmian may have been changing the locks because she believed that Rosemary was stealing from her. However, Rosemary's evidence, which I accept, is that at all relevant times she had a key to Charmian's house. At no time was she locked out of the house. On the one occasion Charmian did accuse Rosemary of breaking into the house, she recanted immediately when Rosemary had a discussion with her and explained that she could not have been breaking into the house.
300 When Charmian executed the will on 18 October 2010 she was not detrimentally affected in disposing of her property by mental illness or disorder.
301 A presumption that the testator knew and approved the contents of the will arises once it is proved that the testator had testamentary capacity and the will was duly executed.[655] This presumption applies in the present case as I have concluded that Charmian had testamentary capacity and that the will was duly executed. This presumption can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated and approved the contents of the will, in which case the burden shifts to the propounder to adduce affirmative evidence that the testator knew and approved the contents of the will.[656]
302 Counsel for the defendant submitted that the following matters give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will:
In relation to knowledge and approval, the defendant relies upon the following suspicious circumstances:
- Charmian was 85 years old when she made the will and had a long history of memory loss and cognitive decline and was suffering from early Alzheimer's type dementia and reported to be showing signs of confusion and paranoia.
The will was prepared by the plaintiff, someone who was not previously known to Charmian.
There is ample evidence Charmian suffered from hearing difficulties, wore hearing aids and sometimes failed to wear the hearing aids. However. Mr Muir did not notice this or make any file note or take any steps to ensure that Charmian heard what he said.
Charmian had never previously made a will. On 19 June 2009 Charmian told Elsdon Storey, Professor of Neuroscience at CDAMS, that she did not have a Will partly because of a superstitious feeling that not doing so may stave off illness and death. The Will represents a radical departure from Charmian's previous statements of testamentary intention. Further, Charmian did not provide any satisfactory explanation for such radical departure and the plaintiff has not provided any satisfactory explanation for such radical departure.
There is no cogent reason evident as to why Charmian suddenly changed her previous testamentary intention to die without having executed a will.
There is no cogent reason why the will omits Denise's other daughter Vikki [sic] Brookes. The instructions included a gift to Denise's daughter Sasha whereas the will includes a gift to Denise's son Sasha. It appears that no enquiries were made of Charmian to confirm whether Charmian intended this gift to be to Denise's son Sasha or alternatively Denise's daughter Victoria.
The will incorrectly names Charles Laycock as Rosemary's son. Given the long close relationship between Charmian and Charles, it would be expected that if Charmian read the will, she would have no difficultly picking up that error.
Cilla Brookes, one of the beneficiaries was heavily involved in the preparation of of the will. However, the Court has no clarity as to the extent of the involvement of Cilla Brookes given the lack of file notes made by Mr Muir as well as the failure of Cilla Brookes to recall key aspects of her involvement, such as whether or not Charmian told Cilla Brookes the reason why Charmian wanted to see a solicitor.
Furthermore, consideration needs to be given to the combination of the following pieces of evidence.
- The file note of Mr Muir does not record any explanation of the will was given to Charmian on 16 October 2010.
- This evidence of Lachlan Beer as to the usual practice of Mr Muir suggests that if Charmian did not ask any questions, then the parties would move directly into the signing process.
- The evidence is that the meeting on 16 October 2010 likely only took 5-10 minutes.
- The meeting took place at 5pm, the time that correlates with the condition known as sundowning, a condition that Charmian is reported to have experienced.
- Charmian subsequently reported to Dr Fonda the reason she signed the will was because she did "anything to get rid of them".
- Charmian did not pick up what should have been an obvious error to her that Charles was not Rosemary's son.[657]
303 The matters set out above do not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will.
304 Counsel for the defendant submitted that the will represented a radical departure from Charmian's prior testamentary intention of dying intestate and that there is no satisfactory explanation for this radical departure. Assuming in the defendant's favour that prior to October 2010 Charmian did intend to die intestate, I reject the submission that there is no explanation for Charmian's decision to make a will.
305 Counsel for the defendant accepted that the 'driver' for Charmian making a will and bequeathing only 2.5% of her estate to Rosemary was Charmian's anger with Rosemary, including for reasons related to the loss of her driver's licence and the prospect of being placed in a nursing home.[658] Charmian's anger with Rosemary provides a plausible explanation for why she decided in late September 2010 to make a will.
306 I do not accept the defendant's submission that the circumstances giving rise to the preparation of the will are suspicious. There is no allegation of undue influence. However, the defendant submits that Cilla was heavily involved in the preparation of the will and that she received a bequest equating to 15% of Charmian's estate. I reject the submission that Cilla's involvement in the preparation of the will constitutes a suspicious circumstance. Cilla's involvement in the preparation of the will was limited. In response to a request from Charmian for the contact details of a solicitor, Cilla provided Charmian with Mr Muir's contact details. Thereafter, Cilla had a brief discussion with Mr Muir to inform him of Charmian's request for assistance with the preparation of the will. There is no evidence which even faintly suggests that Cilla had any discussions with Charmian regarding the beneficiaries of her estate. It was not put to Cilla during cross-examination that she had suggested to Charmian who the beneficiaries of the estate should be and what proportion of the estate the beneficiaries should receive. For the sake of completeness, I record my finding that Cilla had no discussion with Charmian regarding the contents of her will at any time prior to 18 October 2010.
307 I do not accept the defendant's submission that there is anything suspicious about the contents of the will. The fact that the will names eight of Charmian's relatives does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will. The instructions given to Mr Muir on 1 October 2010 included instructions that 15% of her estate would pass to 'Sasha'. I accept Mr Muir's evidence that he assumed the reference to Sasha to be a reference to a female, but that he was subsequently told that Sasha was Denise's son.[659]
308 I do not accept that the erroneous reference to 'Charles Laycock' as one of Rosemary's three sons gives rise to a suspicion that Charmian might not have appreciated and approved the contents of the will. Charmian plainly intended to make a bequest to Rosemary's three sons: Lachlan, Nicholas and Rupert. The erroneous reference to Charles in lieu of Nicholas does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will.
309 The defendant submits that there is no cogent reason why the will does not make a bequest to Denise's daughter Vicki. I reject this submission. Cilla gave unchallenged evidence that Denise and Vicki were estranged between 1991 and 2019.[660] There is no evidence that in the years prior to 2010 Charmian had any contact with Vicki. Cilla could not recall Charmian ever discussing Vicki when Cilla visited Charmian during the 2000s.[661] The failure to make a bequest to Vicki does not give rise to a suspicion that Charmian might not have appreciated and approved the contents of her will.
310 The defendant submits that Mr Muir did not notice that Charmian wore hearing aids and did not take any steps to ensure Charmian heard what he said when he took instructions for the will on 1 October 2010 and when he met Charmian for the execution of the will on 18 October 2010. I infer that the reason why Mr Muir did not notice that Charmian was wearing hearing aids is that during his interactions with Charmian on 1 and 18 October 2010 Charmian gave no indication that she was having any difficulty hearing and understanding what Mr Muir was saying to her. Mr Muir met with Charmian for approximately 60 minutes on 1 October 2010.[662] On 5 October 2010, Mr Muir had a further discussion with Charmian by telephone. His note of that conversation is as follows:
I spoke to Charmian and told her that Cilla had indicated that her mother Denise was a little reluctant to act as executrix of the estate and that Cilla has suggested that I could perhaps act as executor. Charmian responded by indicating that that would be perfect in her mind as I would be a "third party" and separate from the beneficiaries. She said that she would like me to proceed on that basis.[663]
311 It is clear from this file note that Charmian understood the subject matter of the conversation and responded meaningfully.
312 When the will was executed on 18 October 2010, Mr Muir was accompanied by Mr Beer and Ms Keizer from his office. This was a short meeting, which may have only have taken 5 to 10 minutes.[664] Although the meeting on 18 October 2010 was short, Mr Muir's file note records a discussion between himself and Charmian. If Charmian had been experiencing any difficulties hearing and/or understanding what Mr Muir was saying to her, this would have been apparent to one of Mr Muir, Mr Beer or Ms Keizer. There is no evidence to suggest that any of them perceived that Charmian was having any difficulty hearing or understanding what Mr Muir was saying to her. At the end of the meeting, Charmian stated that she would like to consider the possibility of making provision for some of her other cousins. This supports a finding that Charmian understood that the will was making a bequest to the eight nominated beneficiaries, but that there were other relatives, not named in the will, who were not receiving a bequest.
313 I do not accept the defendant's submission that the failure of Mr Muir to record in his file note of 18 October 2010 that an explanation of the will was given to Charmian constitutes a suspicious circumstance. I accept Mr Muir's evidence that on 18 October 2010 he followed his usual practice of paraphrasing the provisions of the will and satisfying himself that the will reflected his client's wishes.
314 I do not accept that the exchange which took place between Charmian and Dr Fonda on 26 April 2011 constitutes a suspicious circumstance. Dr Fonda's report dated 26 April 2011 includes the following:
As best I can understand, [Charmian] had no prior Will until a couple weeks ago when a distant relative, Denise Pringle (she could not remember her married name) arrived at her home with a drawn up Will for her to sign, leaving the majority of her Estate to Denise Pringle and her family. She cannot recall the contents of the Will and whether anything was given to anyone else. When I asked her why she signed it, she indicated that she did "anything to get rid of them". She could not recall who the witness was. She was further annoyed to be subsequently provided with a bill to cover the expense of that occasion. She felt it was not a big issue as her "assets were not all that great".[665]
315 The account provided to Dr Fonda by Charmian on 26 April 2011 was factually incorrect. The will was executed on 18 October 2010, more than six months prior to 26 April 2011, yet Dr Fonda's report records that the will had been made 'a couple of weeks ago'. Denise Pringle (Brookes) was not present at Charmian's home on either 1 October 2010 when the instructions for the will were taken or 18 October 2010 when the will was executed. Mr Muir did not arrive at Charmian's residence unannounced. Rather, he attended in circumstances where, prior to his attendance, an appointment had been made for him to do so. There is no evidence that Charmian was agitated on 18 October 2010 or wished to 'get rid of' Mr Muir and his colleagues. Mr Muir had been recommended to Charmian by Cilla, who was herself a lawyer and someone who Charmian trusted. The discussion between Mr Muir and Charmian at the end of the meeting on 18 October 2010 during which Charmian raised the possibility of amending the will to make provision for other cousins is inconsistent with Charmian having wished to 'get rid of' Mr Muir and his colleagues.
316 By April 2011, Charmian's cognitive function had significantly declined relative to October 2010. It is highly unlikely that in April 2011 Charmian could have, unaided, provided the instructions which she provided to Mr Muir on 1 October 2010 for the preparation of her will. In his report of 26 April 2011, Dr Fonda recorded the following:
It took some time for me to understand who her potential beneficiaries might be. She never married and has no children. She indicated she had one brother, Randal Watt, (deceased) who has one child only, yourself. Her father, Charles, was one of five or six siblings, one of whom was a sister. She had a daughter, Alice Pringle, who was your aunt's first cousin. Alice Pringle (now deceased) has two children, Denise and Julian. It is Denise who initiated this Will. Charmian indicated that there are many such relatives. I did not get clarity of the family on her mother's side.
317 This account stands in stark contrast with Mr Muir's evidence of the exchange which he had with Charmian on 1 October 2010. His file note of 1 October 2010 supports a finding that Charmian, unaided and unprompted, identified eight beneficiaries and the proportion of her estate they were to receive.
318 Dr Fonda gave evidence that there would have been no difference in Charmian's cognitive function between September 2010 when she was diagnosed with dementia, and late April 2011 when he assessed her testamentary capacity.[666] I do not accept this evidence.
319 On 11 November 2010, Charmian contacted Mr Muir and sought his advice in relation to any steps which she could take to overturn the suspension of her driving licence by VicRoads.[667] This demonstrates that more than three weeks after the execution of the will, Charmian knew who Mr Muir was. However, by early April 2011 when Charmian disclosed to Rosemary that she had executed a will, she had no idea who Mr Muir was, as evidenced by the fact that she did not mention him as a person involved in the preparation of the will. This is objective evidence of a significant cognitive decline between late 2010 and April 2011.
320 On 23 December 2010, Dr Wright made a record of a phone call with Rosemary in which she noted:
[Charmian's] memory much worse - discussion with niece per phone - [Rosemary is] at her wits end and may have to put [Charmian] in a home - waiting for developments.[668]
321 This file note supports a finding that during the period from mid-November to late December 2010, Charmian experienced cognitive decline. This continued until April 2011, by which time she had no recollection of the actual circumstances in which the will had been executed or the involvement of Mr Muir. Charmian's account to Dr Fonda on 26 April 2011 of the circumstances in which the will had been executed does not constitute a suspicious circumstance, because it is totally divorced from the reality of what occurred on 18 October 2010 when the will was executed.
322 If, contrary to the findings set out above, the circumstances in which the will was executed do give rise to a suspicion that Charmian might not have appreciated and approved the contents of the will, I am, in any event, satisfied that Charmian did know and approve the contents of the will. This finding is supported by Mr Muir's file notes of 1 October 2010 and 18 October 2010 and the evidence of his usual practice when taking instructions for a will and when attending a client for the purpose of the execution of a will. I accept Mr Muir's evidence that he would have followed his usual practice on 1 October 2010 and 18 October 2010.
323 In addition to Mr Muir's evidence as to his usual practice of explaining the contents of the will, I am also satisfied that Charmian would have read and understood the will prior to meeting Mr Muir on 18 October 2010. The final draft of the will was sent to Charmian on 5 October 2010. Charmian initiated the process for the preparation of the will by asking Cilla to recommend a solicitor. Charmian was motivated by her anger towards Rosemary and a wish to ensure that Rosemary only received a small part of her estate. When Charmian received the draft of the will, it is highly likely that she would have read it carefully to ensure that it reflected her desire to limit Rosemary's share of the estate to 2.5%. Further, as the draft will only contained three clauses, it is also highly likely that Charmian would have read clause 3 prior to meeting Mr Muir on 18 October 2010.
324 Counsel for the defendant advanced an alternative submission that if the Court was satisfied that Charmian had knowledge and approval of clauses 1 and 2 of the will, it should nevertheless sever clause 3. Clause 3 of the will provides:
I DECLARE that my Trustee being a solicitor may charge and be paid all usual professional fees for services rendered by him in connection with the proving of this my Will and the administration of the trusts hereby created as if he were not an executor and trustee hereof.[669]
325 Charmian did not provide instructions to Mr Muir on 1 October 2010 to include a charging clause in the will. Clause 3 was included in the will following a discussion between Charmian and Mr Muir on 5 October 2010 during which Mr Muir informed Charmian that Denise was reluctant to act as executrix of the estate, and that Cilla had suggested that Mr Muir could act as executor. Charmian had responded 'by indicating that that would be perfect in her mind as I would be a 'third party' and separate from the beneficiaries'.[670] Charmian told Mr Muir to proceed on the basis that he would be the executor of the estate.[671]
326 On 5 October 2010, Mr Muir mailed a draft of the will to Charmian which included clause 3.[672] Mr Muir's file note of his meeting with Charmian on 18 October 2010 does not record that he explained clause 3 to her. Mr Muir gave evidence that he was 'certain' that he would have explained to Charmian that clause 3 was designed to cover the legal fees for his services and administering the estate.[673] I accept Mr Muir's evidence that when he met Charmian on 18 October 2010, he would have followed his usual practice of paraphrasing each clause in the will.[674]
327 The defendant's counsel put to Mr Muir that he had not explained to Charmian that in addition to the fees he could charge pursuant to clause 3, he was also entitled to charge a commission of up to 5% of the value of the estate pursuant to s 65 of the Administration and Probate Act 1958 (Vic).[675] I accept that Mr Muir did not make any reference to his right to charge commission under s 65 of the Administration and Probate Act when he explained clause 3 to Charmian. Rather, he told her that clause 3 covered his legal fees for proving the will and administering the estate. Mr Muir's failure to make any reference to his right to charge commission pursuant to s 65 of the Administration and Probate Act does not mean that Charmian did not have knowledge of and approve clause 3. Mr Muir's right to charge commission under s 65 of the Administration and Probate Act did not arise under clause 3 of the will. Clause 3 conferred a right on Mr Muir to charge legal fees for proving the will and administering the estate. Charmian had knowledge of and approved Mr Muir's right to charge fees pursuant to clause 3.
328 I reject the defendant's submission that clause 3 should be severed from the will on the basis that Charmian did not have knowledge of and approve the clause.
329 Charmian had dementia when she provided Mr Muir with instructions for the preparation of her will on 1 October 2010 and when she subsequently executed the will on 18 October 2010. Although Charmian had dementia, in October 2010 there were periods when, in the words of Dr Fonda, 'the light globes were fully switched on'. The evidence of Mr Muir, who was a very credible witness, supports a finding that when Charmian met with him on 1 October 2010 and 18 October 2010 she was capable of deliberately forming an intelligent purpose as to who would be the beneficiaries of her estate and what their respective share of the estate would be.
330 It was unreasonable for Charmian to have borne ill-will towards Rosemary because Rosemary had been involved in the loss of her driving licence and had raised the prospect of Charmian moving into a nursing home. Equally, it was unreasonable for Charmian to have been motivated by this ill-will when she made a bequest to Rosemary which equated to 2.5% of her estate. Nevertheless, the bequest was not invalid.
331 On 18 October 2010 when Charmian executed the will, Charmian had testamentary capacity and knew and approved of each clause in the will. Charmian's will dated 18 October 2010 will be admitted to probate. I shall provide the parties with an opportunity to make submissions as to the form of order to give effect to this judgment. I shall also provide the parties with an opportunity to make submissions on the costs of the proceeding.
[2] Consolidated Court Book ('CB') 1831, Transfer of Land Form dated 16 November 2012.
[3] CB 17 - 19, Letter from Dr Scharf and Dr Moran to Dr Wright dated 15 September 2010.
[4] CB 1797 - 1808, Affidavit of Cassandra Legg dated 18 February 2025; CB 1809 - 1825, Affidavit of Christopher Galagher dated 14 February 2025.
[5] Transcript page ('T') 532 line ('L') 28.
[58] T 444 L 1 - 3. Charles said that this meant Randall Deasey and his 'mob': T 444 L 3 - 4 but did not know for sure: T 459 L 8 - 14.
[65] T 453 L 20 - 30; Further Supplemental Court Book 1002, Letter from Charmian to Charles Laycock dated 22 June 2005.
[70] T 447 L 29 - T 448 L 4; Further Supplemental Court Book 985, Photograph of Rosemary and Charmian in around 1964; T 450 L 17 - 22; Further Supplemental Court Book 992, Photograph of Rosemary and Charmian at Christmas lunch in mid-1980s; T 452 L 27 - T 453 L 3; Further Supplemental Court Book 998, Photograph of Rosemary and Charmian at Mt Martha dated 5 April 2016; T 453 T 7 - 13; Further Supplemental Court Book 1000, Photograph of Rosemary and Charmian at Christmas in around 2012; T 453 L 14 - 19; Further Supplemental Court Book 1001, Photograph of Rosemary and Charmian at Bupa Aged Care in around 2020.
[71] T 448 L 6 - 15; Further Supplemental Court Book 986, Photograph of Charmian, Rosemary and Elizabeth at Falls Creek in around 1966.
[72] T 448 L 23 - T 449 L 3; Further Supplemental Court Book 987, Photograph of Christmas lunch at Tower Court, Armadale in around 1970; T 449 L 4 - 9; Further Supplemental Court Book 988, Photograph of Christmas lunch at Tower Court, Armadale in around 1970; T 449 L 10 - 19; Further Supplemental Court Book 989, Photograph of Christmas lunch in around 1970; T 450 L 17 - 22; Further Supplemental Court Book 992, Photograph of Rosemary and Charmian at Christmas lunch in mid-1980s; T 450 L 23 - 30; Further Supplemental Court Book 993, Photograph of Christmas lunch at the Laycock's home in mid-1980s.
[73] T 450 L 9 - 13; Further Supplemental Court Book 991, Photograph of Charmian holding Lachlan Laycock in around 1978; T 450 L 14 - 16; Further Supplemental Court Book 991, Photograph of Charmian with Rosemary holding Nicholas Laycock at his christening in around 1982.
[74] T 450 L 31 - T 451 L 26; Further Supplemental Court Book 994, Photograph of Nicholas Laycock and Valery Cole's wedding dated 20 March 2010.
[75] T 451 L 27 - T 452 L 7; Further Supplemental Court Book 995, Photograph of Rupert and Charmian in around 2012; T 452 L 8 - 11; Further Supplemental Court Book 996, Photograph of Rosemary and Charmian in around 2012.
[76] T 452 L 27 - T 453 L 3; Further Supplemental Court Book 998, Photograph of Rosemary and Charmian at Mt Martha dated 5 April 2016.
[81] T 200 L 23 - T 201 L 25; CB 1009, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Alice Pringle; CB 1013, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Charmian; CB 1017, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Denise Pringle; CB 1021, UK and Ireland Incoming Passenger Lists 1878-1960 Record Index for Julian Pringle.
[83] CB 1025 - 1031, Various letters from Denise to her grandmother 'Azma'.
[84] T 204 L 1 - 4; CB 1033, Photograph of Charmian, Julian and Denise in around 1950.
[85] T 205 L 1 - 6; CB 1036, Photograph of Charmian, Denis Deasey and Hugh Deasey at Alice's 90th birthday dated 2003.
[86] T 205 L 23 - 28; CB 1035, Photograph of Sasha and Denise at Alice's 90th birthday dated 2003.
[87] T 209 L 11 - 18; CB 1040, Christmas card from Charmian to Denise dated 25 December 2008.
[117] T 223 L 10 - 25; CB 1034, Photograph of Alice's 90th birthday dated 2003.
[119] T 224 L 5 - 21; CB 1037, Photograph of Charmian and Denise at Patrick Deasey and Jodie's wedding dated 2004.
[129] Vicki Brookes did not give evidence in this proceeding and is not a named beneficiary of the will.
[142] T 365 L 25 - 29; T 366 L 2 - 4; T 378 L 31 - T 379 L 2.
[155] T 369 L 8 - 21; CB 1038, Photograph of Cilla, Denise and Charmian at Dance Dynamics Showcase Ball dated 2007.
[157] T 368 L 15 - 18; T 379 L 26 - 28.
[163] T 368 L 29 - 31; T 380 L 12 - 23.
[171] T 392 L 12 - 22; T 411 L 16 - 17.
[178] T 373 L 17 - T 374 L 1; T 408 L 1 - 7.
[189] T 389 L 21 - 26; T 398 L 19 - T 399 L 3; T 399 L 13 - 15.
[213] T 82 L 18 - 20; CB 549 - 551, Document titled 'Testamentary Capacity' completed by Warren Woolcock dated 12 July 2010.
[222] CB 576, File note of Mr Muir dated 29 September 2010.
[226] CB 579 - 580, File note of Mr Muir dated 1 October 2010.
[227] CB 595, File note of Mr Muir dated 18 October 2010.
[243] CB 647 - 649, Dr Fonda's Letter to Dr Wright dated 13 December 2010.
[245] T 272 L 4 - 17; CB 658 - 660, Letter from Dr Fonda to Rosemary dated 26 April 2011.
[250] T 463 L 1 - 5. Dr Wright believed she first saw Charmian in 1999: T 463 L 28 - 30.
[252] CB 553, Charmian's Enduring Power of Attorney dated 12 July 2010.
[258] CB 546, Email from Rosemary to Warren Woolcock dated 8 July 2010.
[265] T 90 L 5 - 14. See also T 96 L 13 - 18.
[275] CB 549 - 551, Document titled 'Testamentary Capacity' completed by Warren Woolcock dated 12 July 2010.
[279] CB 549, Document titled "Testamentary Capacity" completed by Warren Woolcock dated 12 July 2010.
[283] CB 549, Document titled "Testamentary Capacity" completed by Warren Woolcock dated 12 July 2010.
[285] CB 549, Document titled "Testamentary Capacity" completed by Warren Woolcock dated 12 July 2010.
[287] CB 549, Document titled "Testamentary Capacity" completed by Warren Woolcock dated 12 July 2010.
[289] CB 550, Document titled "Testamentary Capacity" completed by Warren Woolcock dated 12 July 2010.
[294] Exhibit A, Bundle of documents regarding preparation of power of attorney for Charmian Watt made by Warren Woolcock, 12 February 2025.
[313] CB 552 - 555, Charmian's Enduring Power of Attorney dated 12 July 2010; Exhibit A, Bundle of documents regarding preparation of power of attorney for Charmian Watt made by Warren Woolcock, 12 February 2025. See also T 479 L 26 - 28; T 540 L 3 - 4.
[323] CB 29, File note of Mr Muir dated 29 September 2010.
[328] CB 578, Entry of Mr Muir's diary dated 1 October 2010.
[329] T 99 L 7 - 11; T 136 L 31 - T 137 L 4.
[330] CB 579 - 580, File note of Mr Muir dated 1 October 2010.
[363] CB 651, Darrer Muir Fleiter Time Ledger printed 15 December 2010.
[364] T 108 L 3 - 22; T 177 L 16 - 26.
[367] T 125 L 20 - 24; T 125 L 28 - T 126 L 3; T 126 L 21 - 25.
[368] T 126 L 3 - 9; T 126 L 25 - T 127 L 1.
[373] T 154 L 13 - 24; T 155 L 7 - 19.
[375] Written submissions on behalf of the defendant dated 26 February 2025 [14] - [16].
[378] T 405 L 31 - T 406 L 13; T 412 L 5 - 9.
[380] CB 194, Darrer Muir Fleiter Facsimile Covering Letter dated 4 October 2010.
[385] T 150 L 28 - T 151 L 11; T 153 L 11 - 19.
[389] CB 582 - 584, First Draft of Charmian's Will dated 4 October 2010; T 109 L 20 - 22, T 156 L 23 - 27.
[390] CB 583, First Draft of Charmian's Will dated 4 October 2010.
[391] CB 217, Darrer Muir Fleiter Bill dated 8 November 2010.
[398] T 152 L 18 - 23; CB 583, First Draft of Charmian's Will dated 4 October 2010.
[400] CB 32, File note of Mr Muir dated 5 October 2010 (italics in original).
[406] CB 200 - 202, Second Draft of the Will of Charmian dated 5 October 2010; T 110 L 30 - T 111 L 3.
[407] CB 201 - 202, Second Draft of the Will of Charmian dated 5 October 2010.
[410] CB 202, Second Draft of the Will of Charmian dated 5 October 2010.
[411] CB 199, Letter from Mr Muir to Charmian dated 5 October 2010.
[413] CB 199, Letter from Mr Muir to Charmian dated 5 October 2010.
[416] CB 592, Mr Muir's Diary between 14 October and 20 October 2010.
[418] CB 593, Mr Muir's Diary between 14 October and 20 October 2010.
[419] CB 217, Darrer Muir Fleiter Bill dated 8 November 2010.
[421] T 112 L 28 - 30; T 175 L 9 - 14.
[427] CB 43 - 45, Will of Charmian Watt dated 18 October 2010.
[428] CB 33, Mr Muir's Memorandum of Attendance dated 18 October 2010.
[441] CB 651, Darrer Muir Fleiter Time Ledger printed 15 December 2010.
[442] T 175 L 22 - 31; T 117 L 12 - 28.
[449] CB 210, Darrer Muir Fleiter Letter to 599.
[450] CB 214 - 215, Darrer Muir Fleiter Letter to Charmian dated 8 November 2010 including Darrer Muir Fleiter Tax Invoice dated 8 November 2010.
[451] CB 215, Darrer Muir Fleiter Tax Invoice dated 8 November 2010.
[453] CB 301, Healthy Aging Study Summary of Cognitive Performance dated 12 July 2005.
[454] CB 310, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[455] CB 309, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[456] CB 247, Dr Wright's Letter to Memory Clinic at Caulfield General Medical Centre dated 21 November 2008.
[457] CB 270, CT Scan Results dated 10 December 2008.
[460] CB 308, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[461] CB 917 - 924, Cognitive Dementia & Memory Service Initial Assessment Form dated 4 March 2009.
[463] CB 926, CDAMS Mini Mental State Examination dated 4 March 2009.
[464] CB 928, CDAMS Initial Assessment Summary dated 11 March 2009.
[465] CB 538 - 540, Professor Storey's Letter to Dr Wright dated 25 April 2009.
[466] CB 541 - 542, CDAMS Letter to Dr Wright dated 6 May 2009.
[467] CB 543, CDAMS Family Conference Notes dated 10 June 2009.
[468] CB 892 - 893, CDAMS Feedback Session Summary dated 17 June 2009.
[470] CB 544 - 545, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[471] CB 544, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[472] CB 544 - 545, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[473] CB 306, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[475] CB 306, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[476] CB 174, Dr Wright's Letter to Caulfield Memory Clinic dated 12 July 2010.
[478] CB 553, Charmian's Enduring Power of Attorney dated 12 July 2010; T 479 L 26 - 28.
[479] CB 305, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[482] CB 178, Penny Wong's Letter to Dr Wright dated 28 July 2010.
[483] CB 179, ACAS Referral to CDAMS dated 6 August 2010.
[484] CB 181, CDAMS Initial Assessment dated 8 September 2010.
[485] CB 957, CDAMS Mental State Examination dated 8 September 2010.
[486] CB 1499 - 1500, CDAMS Progress Notes dated 8 and 15 September 2010.
[487] CB 305, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[489] CB 18, letter from Dr Scharf and Dr Moran to Dr Wright dated 15 September 2010.
[490] CB 18 - 19, Letter from Dr Scharf and Dr Moran to Dr Wright dated 15 September 2010.
[494] CB 305, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[495] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[497] CB 590, Dr Wright's Referral Letter to Dr Fonda dated 13 October 2010.
[498] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[500] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[501] CB 21, Dr Fonda's Letter to Dr Wright dated 13 December 2010.
[507] CB 1072, Changes in Cognitive Function Form Completed by Rosemary on 24 November 2010.
[508] CB 1073, Changes in Cognitive Function Form Completed by Rosemary on 24 November 2010.
[512] CB 21 - 24, Dr Fonda's Letter to Dr Wright dated 13 December 2010.
[517] CB 224 - 225, Dr Fonda's Letter to Dr Hatfield dated 4 April 2011.
[518] CB 224, Dr Fonda's Letter to Dr Hatfield dated 4 April 2011.
[520] CB 1065 - 1066, Dr Fonda's Questionnaire to Assess Capacity dated 26 April 2011.
[524] CB 1066, Dr Fonda's Questionnaire to Assess Capacity dated 26 April 2011.
[530] CB 25 - 26, Dr Fonda's Assessment of Charmian's Capacity dated 26 April 2011.
[531] CB 26 - 27, Dr Fonda's Assessment of Charmian's Capacity dated 26 April 2011.
[532] CB 83 - 84, Expert Report of Dr Fonda dated 15 September 2024.
[533] CB 84, Expert Report of Dr Fonda dated 15 September 2024.
[534] CB 84 - 86, Expert Report of Dr Fonda dated 15 September 2024.
[536] CB 190, Notice of Suspension of Driver Licence dated 23 September 2010.
[538] CB 18, Letter from Dr Scharf and Dr Moran to Dr Wright dated 15 September 2010.
[540] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021 .
[541] CB 190, Notice of Suspension of Driver Licence dated 23 September 2010.
[543] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[547] CB 1499, CDAMS Progress Notes dated 8 and 15 September 2010.
[550] CB 41, Death Certificate of Charmian Watt dated 15 February 2021.
[552] CB 916, Letter to Ms Watt from Cassandra Kalkerup at CDAMS dated 11 February 2009.
[553] CB 921 - 924, Cognitive Dementia & Memory Service Initial Assessment Form dated 4 March 2009.
[554] CB 15, CDAMS Feedback Session Summary dated 17 June 2009.
[555] CB 160, Health Assessment - Doctor's Copy dated 8 June 2010.
[556] CB 179, ACAS Referral to CDAMS dated 6 August 2010.
[558] CB 1499, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[559] CB 181, CDAMS Initial Assessment dated 8 September 2010.
[562] CB 187, Letter from Brenda Rhodes to Dr Wright dated 15 September 2010.
[563] CB 1499, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[564] CB 1498, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[566] CB 189, Referral to Caufield Aged Care Assessment Service dated 22 September 2010.
[571] CB 1498, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[575] [1924] HCA 21; (1924) 34 CLR 558, 566 (Knox CJ and Starke J).
[576] [1941] HCA 22; (1941) 66 CLR 277, 280 (Rich ACJ), 293 (Williams J).
[577] [1942] HCA 13; (1942) 66 CLR 295, 299 (Latham CJ), 341-2 (Williams J).
[579] Ibid, [37] (Buchanan and Phillips JJA) (with whom Ormiston JA agreed). See also for example Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174 [167] (Santamaria JA, Beach and Kyrou JJA agreeing); Re Jones [2021] VSC 273, [11]; Grynberg v Muller [2001] NSWSC 532, [18].
[582] [2023] VSC 161, [14].
[585] Kantor v Vosahlo [2004] VSCA 235, [47] - [48].
[586] Nicholson v Knaggs [2009] VSC 64, [97]; Haberfield, [14], quoting Kourakis CJ in Roche v Roche [2017] SASC 8, [32].
[587] Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328, 330-1 [8] (Basten JA).
[588] Kerr v Badran [2004] NSWSC 735, [49], approved in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [64] (Hodgson JA, Young JA and Bergin CJ agreeing).
[589] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 188 [203]; Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328, 331 [9].
[591] Re Estate of Hodges (1988) 14 NSWLR 698, 706-7, quoting Harwood v Baker [1840] EngR 1087; (1840) 3 Moo PC 282, 290-1.
[593] Re Estate of Griffith (1995) 217 ALR 284, 288.
[594] Clemens v Byrnes [2007] NSWSC 421, [127].
[601] Ibid, [715] - [716], [718].
[604] Ibid, quoting Re Crooks Estate (Supreme Court of New South Wales, Young J, 14 December 1994, unreported), 29.
[605] [2023] VSC 161, [239].
[608] Perrins v Holland [2011] Ch 270.
[609] Hookway v Hookway [2017] TASFC 4, [8].
[610] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, 770 [44] (Meagher JA, Basten and Campbell JJA agreeing).
[611] Lim v Lim [2023] NSWCA 84, [10] (Kirk JA, Bell CJ and Griffiths AJA agreeing).
[612] Lewis v Lewis [2021] NSWCA 168; (2021) 105 NSWLR 487, 531 [187] (Leeming JA, Meagher and Payne JJA agreeing).
[614] Ibid, [66]. See also for example Hobhouse v Macarthur-Onslow [2016] NSWSC 1831, [398].
[615] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 180 [185].
[620] Ibid, 180 [184]; Nicholson v Knaggs [2009] VSC 64, [387].
[621] Singh v Singh [2018] NSWCA 30, [171].
[622] CB 190, Notice of Suspension of Driver Licence dated 23 September 2010.
[623] CB 579 - 580, File Note of Mr Muir dated 1 October 2010.
[624] CB 33, File Note of Mr Muir dated 18 October 2010.
[625] CB 579, File Note of Mr Muir dated 1 October 2010.
[626] Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328, 330-1 [8] (Basten JA); Kerr v Badran [2004] NSWSC 735, [49], approved in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [64] (Hodgson JA, Young JA and Bergin CJ agreeing).
[627] Written submissions on behalf of the defendant dated 26 February 2025 [149] - [152].
[628] CB 845, Grant of Probate of the Will of Randal Watt dated 12 December 2019.
[635] CB 179, ACAS Referral to CDAMS dated 6 August 2010.
[636] CB 1500, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[637] CB 1499, CDAMS Progress Notes between 8 September 2010 and 16 August 2016.
[640] CB 304, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[641] CB 590, Dr Wright's Referral Letter to Dr Fonda dated 13 October 2010.
[649] Carr v Homersham [2018] NSWCA 65; (2018) 97 NSWLR 328, 350-1 [113(3)].
[652] Re Estate of Griffith (1995) 217 ALR 284, 290 (Gleeson CJ).
[655] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 174-5 [169].
[657] Written submissions on behalf of the defendant dated 26 February 2025 [168] - [169].
[663] CB 32, File note of Mr Muir dated 5 October 2010 (italics in original).
[665] CB 25 - 26, Dr Fonda's Assessment of Charmian's Capacity dated 26 April 2011.
[667] T 118 L 5 - 18; CB 609, File note of Mr Muir dated 11 November 2010.
[668] CB 303, Wynlorel General Practice Complete Record of Charmian Watt dated 5 August 2021.
[669] CB 45, Will of Charmian Watt dated 18 October 2010.
[670] CB 32, File note of Mr Muir dated 5 October 2010 (italics in original).
[672] CB 199, Letter from Mr Muir to Charmian dated 5 October 2010.
[674] T 181 L 9 - 10; T 181 L 28 - T 182 L1.
Muir
Rosemary Laycock
(1924) 34 CLR 558
(1941) 66 CLR 277
(1942) 66 CLR 295
(2015) 46 VR 123
(2018) 97 NSWLR 328
(1988) 14 NSWLR 698
(1995) 217 ALR 284
(2019) 100 NSWLR 505
(2012) 83 NSWLR 757
(2021) 105 NSWLR 487