Plaintiffs v Caveator

PRACTICE AND PROCEDURE - Application to strike out caveat - Whether particulars disclose a case for investigation - Role of evidence at the preliminary stage - Absence of affidavit evidence from the solicitor who prepared the will - Whether sufficient evidence provided to warrant further investigation - Prima facie case established - Application to strike out caveat dismissed.

1 Mr Lior Schmaman ('deceased'), died on 3 June 2022 at his home in Carrum Downs, at the age of 41. He was not married, and had no children. While his death certificate records the deceased as suffering from ischaemic heart disease, the actual cause of death was described as 'mixed drug toxicity (oxycodone, codeine, benzodiazepines, citalopram, mirtazapine)' ('overdose'). While it is apparent from the amended grounds of objection ('particulars') filed by the caveator in this proceeding, Mr Benjamin Matters, that there was a coronial investigation into the death of the deceased, there is nothing before me to indicate whether the overdose was accidental or deliberate.

2 In the years leading up to his death, the deceased suffered a number of physical and psychological impairments, largely as a consequence of a traffic accident in 2015 ('2015 accident'), which caused injuries to his left knee and foot which necessitated surgical repair. In his written submissions, Mr Matters, the deceased's step-brother, described the deceased's circumstances as follows:

The [2015 accident] had a profound impact on Lior. Following that surgery, Lior developed complex regional pain syndrome and from then on his physical and mental health deteriorated. Complex regional pain syndrome is a syndrome characterised by continuing regional pain that is seemingly disproportionate in time and/or intensity to the usual known course of any known trauma or lesion.

Lior was subsequently diagnosed with a number of chronic conditions including anxiety, depression, complex regional pain syndrome, coronary artery disease, autism spectrum disorder, obsessive-compulsive disorder, and post-traumatic stress disorder. The psychological conditions were directly linked to the [2015 accident]. Flare ups of his condition which lasted from days to weeks impacted on his cognitive functioning (including his memory, concentration and organisational skills) and had detrimental impacts on his mood.

3 The deceased was treated by a general practitioner and a large team of specialists, including psychiatrists and psychologists, in the period between the 2015 accident and his death in 2022.

4 This proceeding commenced by way of an application by the plaintiffs, Mr Warren Lehr and Mr Andrew Lyons ('executors'), who are the executors of a will executed by the deceased on 7 July 2021 ('2021 will'). Mr Lehr is described in the 2021 will as the deceased's friend, while Mr Lyons is the deceased's cousin.

5 The 2021 will was drawn by a solicitor, Ms Elaine McDonald, who has an office in Chelsea, and was witnessed by Ms McDonald and a law clerk employed by her. There is no evidence before me of the circumstances in which the 2021 will was prepared or executed. While the 2021 will contains some typographical errors and was in some respects inelegantly expressed, it comprehensively dealt with the deceased's assets, including real estate, cash in bank accounts, and potential proceeds of the deceased's claim against the Transport Accident Commission ('TAC') arising from the 2015 accident, furniture and musical instruments.

6 The primary beneficiary of the 2021 will is, at least in the short term, Mr Lyons, who receives the funds held in the deceased's bank accounts, being $203,043.20,[1] the proceeds of the deceased's claim against the TAC ('TAC claim')[2] and some furniture and musical instruments and equipment. The executors are equal beneficiaries with respect to the residue of the estate, which largely comprises of the deceased's property in Carrum Downs, valued at $730,000.[3]

7 The 2021 will was made just over a year after a prior will made by the deceased ('2020 will'). The 2020 will was not in evidence before me, but it seems to be common ground that the terms of the 2020 will differed from the terms of the 2021 will in the following respects:

(a) in the 2020 will, Mr Matters was nominated as a substitute executor;

(b) in the 2020 will, the deceased's mother, Ms Felicia Schmaman, was to receive a reproduction table, which was left in the 2021 will to Mr Lyons;

(c) in the 2020 will, Mr Lyons was neither appointed as an executor or as a substitute executor, and was to receive a specific legacy of $50,000 plus the proceeds of the TAC claim; and

(d) in the 2020 will, Mr Matters was the beneficiary of a half-share of the residue of the estate (with the other half to go to Mr Lehr), but received no provision at all under the terms of the 2021 will.

8 On 1 February 2024, Mr Matters filed grounds of objection, which, among other things:

(a) objected to the grant of probate of the 2021 will;

(b) claimed that he had standing to challenge the 2021 will;[4] and

(c) asserted that the deceased lacked testamentary capacity during the period shortly before and at the time of the execution of the 2021 will.

9 Following a directions hearing on 22 March 2024, on 24 April 2024 the executors filed a summons seeking the following relief:

1. The caveat filed 18 October 2023 be struck out on the basis that the caveator's particularised grounds of objection dated 1 February 2024 fail to disclose a case for investigation.

2. The caveat be struck out.

1. The plaintiffs' application for the grant of Probate of the will dated 7 July 2021 be referred to the Registrar of Probate for determination.

4. The caveator pay the plaintiffs' costs.

5. Such further or other orders as the Court sees fit.

10 At a further directions hearing on 17 May 2024, a judicial registrar granted Mr Matters leave to file and serve the particulars, which he did on 21 June 2024. As no orders were made for the filing of affidavit evidence,[5] it is necessary for the purpose of the application to reproduce the particulars in full, save for the particulars concerning standing, which I attach as a schedule to these reasons.

11 As can be seen from the schedule, the particulars provided are lengthy and detailed. In summary, Mr Matters relied upon the following matters in support of his contention that there was a prima facie case, or 'a case for investigation' that the deceased lacked testamentary capacity:

(a) the unexplained exclusion of the deceased's mother and Mr Matters, with whom he was on good terms, from the 2021 will;

(b) the deceased's medical conditions and treatment following the 2015 accident; and

(c) the deceased's allegedly erratic conduct at around the time the 2021 will was executed.

12 The executors do not, at least in the context of this application, challenge the factual contentions relied upon by Mr Matters in the particulars, which, for the purpose of an application of the current kind, are taken to be true. Rather, they say that these matters are not sufficient to satisfy the Court that there is a prima facie case that the deceased lacked testamentary capacity at the time he executed the 2021 will.

13 There was no dispute between the parties about the legal principles governing the applications of the current kind. Both counsel agreed that these principles were conclusively laid down by the Court of Appeal in Gardiner v Hughes (No 2).[6] I gratefully adopt the following summary of the relevant principles by Moore J in Re Robustelle (No 2)[7] (omitting footnotes):

The Court of Appeal authoritatively set out the approach to determining the existence of a prima facie case in Gardiner v Hughes (No 2). Although made in the context of an application for the revocation of a grant, the statements of principle by the Court are equally applicable to cases involving the objection to the making of a grant.

The Court of Appeal identified that the task for a caveatrix is to show that there is a 'case for investigation', or 'something to go on'. The question is whether the allegations made by the caveatrix, assuming them to be true, call for further investigation. Mere speculation will not, however, suffice. As to how this test is to be applied, the Court stated that:

...it will not simply be a question of deciding whether an inference justifying revocation should be drawn from the facts relied upon, or which of two possible inferences is to be preferred. Those would be matters for trial. Nor is the true question even whether the inference sought to be relied on is available on the facts (although if that were so, there would be a prima facie case for investigation as to whether or not the inference should be drawn). There may be a case for investigation even if all the facts needed to justify the inference in question are not yet known or alleged, but there is enough to 'go on' to call for a trial. That will be the case if there is a reasonable explanation for the facts relied upon which, if shown to be correct, would justify revoking probate. Each case will of course depend on its particular facts. But in every case the onus rests on the party raising the doubt as to validity.

In Gardiner v Hughes (No 2), the Court of Appeal criticised an approach to determining the existence of a prima facie case in which particulars of objection were separately examined in isolation from each other. The Court emphasised that the- task is to determine 'whether the particulars as a whole constituted a narrative warranting further investigation', with the weight to be attached to individual particulars to be determined with regard to the 'overall narrative.[8]

14 Further, I note the following observation of Walker JA (sitting in the Trial Division) in Lynch v Perpetual Trustees Co Ltd:[9]

The onus of making out a prima facie case rests upon the party asserting that case; but that onus is relatively easy to discharge...[10]

15 Further, her Honour said, in relation to how the onus upon a party in the position of Mr Matters differs according to whether the grounds of objection are being evaluated in the course of an application of the current kind or at trial:

When the question of whether there are suspicious circumstances arises at trial, the onus is on the person alleging a lack of knowledge and capacity to prove the facts that give rise to the suspicious circumstances by way of admissible evidence. In contrast, at the preliminary stage, where what is being assessed is whether there is a prima facie case, the person alleging lack of knowledge and approval is not required to prove the facts upon which they rely; they are simply required to point to matters that show a 'case for investigation'.[11]

I accept Perpetual's submission that the question of whether a prima facie case is made out falls to be evaluated by reference to both the grounds of objection (and the particulars thereto) and any evidence filed by the parties. That is because there may be cases where the strength of the evidence filed in response to an application for revocation is so overwhelming that it makes clear that, notwithstanding that the applicant has marshalled some evidence in support of his or her case, when that evidence is assessed in light of the responsive evidence it is plain that there is no prima facie case. ... However, that evaluation must also proceed on the basis that the evidence filed by the parties may not reflect all of the evidence they might seek to rely on at trial. As the Court observed in Gardiner [No 2], the notion of 'investigation' permit regard to be had to the evidence 'reasonably thought likely to be available' at trial, and additional evidence may emerge in the course of pre-trial steps.[12]

17 I accept that, in contrast with an application for summary judgment under s 63 of the Civil Procedure Act 2010 (Vic), here the onus is upon Mr Matters to establish that there is a prima facie case which warrants further investigation, not upon the executors to establish that his grounds of objection have no real prospects of success. However, the nature and contents of the particulars (from which I can infer that there is likely to be a substantial amount of evidence available about the deceased's medical conditions and treatment), means that it goes without saying that, should Mr Matters clear the relatively low bar before him, there is likely to be substantial material available to aid any such investigation.

18 Finally, the legal principles regarding testamentary capacity are well settled, and again, I gratefully adopt the following summary in Re Robustelle (No 2):[13]

A testator who leaves a will that is rational on its face and which has been duly executed enjoys the presumption of validity in relation to the will. This presumption may be rebutted where there is doubt about a testator's capacity at or around the time they executed the will. If such a suspicion is sufficiently raised, the onus shifts to the propounder of the will to prove that the will was validly made.

It is well established that the test for testamentary capacity requires a proposed testator to comprehend the nature and effect of a will, understand the extent of the property of which the will disposes, and to be able to comprehend and appreciate the claims to which they ought to give effect.

A testator who suffers from a 'disorder of the mind' will lack the requisite capacity if the disorder affects their mental faculties to a degree that renders them incapable of exercising their testamentary powers. A diagnosis of dementia does not necessarily preclude testamentary capacity.[14]

19 The authorities make it clear that ill-health, even extreme ill-health, is not enough to establish a lack of testamentary capacity.[15] Similarly, in Re Matthews,[16] McMillan J referred to the decision of Public Trustee v Alzheimer's Australia WA Ltd (No 2),[17] where Pritchard J noted that in old age some people 'will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age'.[18] Her Honour went on to say, however:

Sometimes extreme ill health may require a propounder of a will to provide independent evidence of testamentary capacity of a deceased. For example, in West Australian Trustee Executor and Agency Co Ltd v Holmes, physical illness and pain so transformed the testator's personality and character, in particular, in regard to his spouse, whom he delusionally believed had attempted to poison him to undermine a claim of mental capacity.[19]

20 By way of analogy then, it would not be sufficient to establish a lack of testamentary capacity merely by reason of a diagnosis of a psychiatric illness or mood disorder. A caveator would need to establish that the effect of the illness or disorder '...so affected his mental faculties as to make them unequal to the task of disposing of his property'.[20]

21 The executors' submissions commenced by reference to the principles applicable to applications of the current kind set out by McMillan J in Re Matthews.[21] The executors also referred to the discussions of the test for testamentary capacity in that decision and by the Court of Appeal in Veall v Veall,[22] noting that the bar for testamentary capacity is 'fairly low'. The executors submitted as follows:

Where a will is rational on its face and duly executed, there is a presumption that the deceased had testamentary capacity. The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the will. In that event, the force of the presumption is reduced and shifts the evidentiary burden to the propounder of the will, such as to provide further or independent evidence of testamentary capacity.

22 The executors' submissions then went on to discuss the three categories of particulars, namely the deceased's relationships, the deceased's medical conditions and treatment, and the deceased's conduct. In relation to the deceased's relationships, the executors submitted, in summary, as follows:

(a) nothing in the particulars suggest that the deceased's failure to make provision for his mother and/or step-brother in the 2021 will was anything other than a change of mind;

(b) while the difference between the bequests to Mr Matters in the 2020 will and the 2021 will were significant, the change vis a vis the deceased's mother were not. Neither change required explanation in the 2021 will, as neither the deceased's mother or Mr Matters were the natural objects of the deceased's bounty; and

(c) the particulars contain no details of any reservations or concerns held by any third party with respect to the testamentary capacity of the deceased, or any 'prior expression of testamentary intention which are so wholly inconsistent with the 2021 will that an investigation into the deceased's capacity might be warranted'.

23 In relation to the deceased's medical condition and treatment, the executors submitted as follows:

The car accident was in 2015. The testator made the Will being impugned in June 2021, six years after the car accident and the onset of his various medical afflictions. There is nothing in the particulars supportive of the contention that the testator's medical conditions, and the treatment which he received for such conditions, are causally and/or temporally connected to the act of making the 2021 will. They are not in any way indicative of any causal or temporal connection between his medical issues and medication and the contents of the 2021 will.

Critically, the particulars relate to the entire period between his accident in 2015 and his death and are no more an indicator of his capacity or lack thereof in relation to the 2021 will as they are for the 2020 will. If, as the caveator requires and would have it, the testator had capacity for the 2020 will then, based on the caveator's particulars in the Grounds of Objection, equally he must have had capacity for the 2021 will. He was suffering from the same afflictions from the 2015 accident for the entire period without significant or relevant distinction until his death. There is nothing in the particulars to the Grounds of Objection to enable one to in any way distinguish between the testator's capacity in May 2020 from June 2021.

24 The executors submitted that the grounds fail to establish any causal connection between the deceased's various afflictions and his testamentary capacity at the time the 2021 will was executed. The executors submitted, in relation to the statements and opinions of various medical practitioners referred to in the particulars, as follows:

According to the particulars, each medical practitioner was treating the deceased for complex regional pain syndrome. Not one of the medical practitioners provided an opinion about the deceased's condition and afflictions that may be temporally related to the very specific time period that is relevant for the caveator's ground of lack of testamentary capacity, that is, at the time of his 2021 will or shortly before then, or that distinguishes the relevant time period in and about June 2021 from any other period post-2015, especially in relation to the 2020 will, or that may be contended is causally related to the deceased's will making.

25 The executors submitted further that the allegation that the reference in the particulars to the deceased having suffered from 'paranoia' should be discounted, as there is no reference to that by any of the medical practitioners referred to in the particulars.

26 In relation to the deceased's conduct, the executors submitted as follows:

In respect to the third category, the particulars suffer from the same problems present in the particulars for the other two categories. They are not temporally relatable to the 2021 will and are not causally relatable to the deceased's making of the 2021 will. Further there are several examples in the particulars under this third category of communications from the testator to his treating GP and the caveator which evidence clear rational thinking and self-awareness of his condition, his treatment of the caveator for which he apologised and his knowledge about aspects of the caveator's life such as his upcoming birthday and advice from doctors. He discloses clear and rational thinking in these communications.

27 The executors noted that the 2021 will was prepared and witnessed by a solicitor, and as such '...one may reasonably infer that the solicitor who prepared and witnessed the [2021 will] was satisfied that the deceased had testamentary capacity'.

28 The executors' submissions concluded as follows:

The particulars do not support a "case for investigation" as to whether the deceased had no capacity to understand the extent of his property disposed under his will and the claims on his estate. They do not, separately or together, disclose a prima facie case that the deceased lacked testamentary capacity.

There is nothing in the particulars suggesting or alleging that his afflictions and their treatment so transformed the testator's personality and character that his mental capacity shortly before and at the time of making the 2021 will was lacking.

The particulars also fail to provide a sufficient factual basis to support a 'case for investigation' as to whether the deceased was unable to discriminate between the respective strengths of the claims of those who might reasonably expect to be included in his will. They do no more than show a change of mind by the deceased. They are not suggestive of a lack of capacity to comprehend who might have had a claim on his estate.

Critically, the particulars are not supportive of a lack of capacity at the time of making the 2021 will or that the testator did not actually know the substantive content of his will and approve that content, or, in other words, correctly appreciate how the will dealt with his property, particularly having regard to the fact that the same circumstances were present at the time of the deceased signing his 2020 will, and the caveator accepts testamentary capacity at such time because, in fact, his standing in this proceeding depends on the deceased having had capacity at the time of the 2020 will.

The 2021 will is rational on its face and the particulars do not allege otherwise nor support a conclusion to the contrary.

By reason of the foregoing, the particulars are ambiguous, obscure or inadequate and ought be struck out. The plaintiffs accordingly seek an order that the caveat cease to be of effect.

29 In his oral submissions at the hearing of the application, counsel for the executors emphasised the following matters:

(a) testamentary capacity is not a difficult matter to establish, and ill-health is not necessarily associated with a lack of testamentary capacity;

(b) none of the medical opinion in the particulars refers to anything about ketamine and the impact of its use upon the deceased;

(c) the particulars do not identify what changed between the execution of the 2020 will and the execution of the 2021 will;

(d) the particulars do not raise or identify any causal connection between the deceased's afflictions and the contents of the 2021 will;

(e) the medical opinions referred to in the particulars do not refer to any cognitive impairment;

(f) that the deceased changed his mind and altered his will in July 2021 does not of itself amount to suspicious circumstances;

(g) when one compares the facts of other cases concerning testamentary capacity[23] with the particulars, it is clear that the particulars do not raise a case which warrants further investigation into the testamentary capacity of the deceased; and

(h) counsel for the executors submitted as follows:

There's no indication that somebody has tricked the deceased in some way, persuaded him to change his mind, that the relationship between Mr Matters and the deceased was so close that it's extraordinary; he must have not known what he was doing. There's nothing like that here. There's no medical evidence that says anything about Mr Shmaman's cognitive capacity, like we have in these three cases, and that is important, in my submission.

30 Mr Matters' written submissions commenced with a comprehensive summary of the factual matters referred to in the particulars, and contented that:

The testator's condition began to worsen from about 2020, when he began to collapse, and presented frequently at Frankston Hospital (including twice in the month prior to the making of his last will). He became increasingly dependent upon ketamine infusions, with his pain worsening the longer the period since his last infusion. The last infusion prior to the making of his last will was 11 weeks prior, a long period.

The caveator observed that in the 12 months prior to the making of the last will, the testator appeared drug-affected and forgetful. In the month prior to making the last will, the testator sent strange messages to the caveator, claiming that his brain told him the caveator did not like him, and complaining of limited use of cognitive abilities, insane medicine and chronic insomnia. The testator began taking medical marijuana, which he used repeatedly in the days leading up to the making of the last will.

31 Mr Matters' submissions then went on to refer to the deceased's family relationships, and the terms of the 2020 will and the 2021 will, noting that '[t]he 2021 will does not, on its face, offer any explanation for the radical change resulting in no provision being made to [Mr Matters] and [the deceased's mother]'.

32 Mr Matters' submissions then went on to describe the deceased's medical conditions and treatment since the 2015 accident in some detail. Mr Matters submitted as follows:

At trial, [Mr Matters] anticipates calling evidence from Dr Hanner, Dr Monagle, Dr Tierney and Dr Damodaran to give evidence of [the deceased's] complex regional pain syndrome and the impact of that syndrome on him, including his psychiatric and psychological issues.

As a result of these conditions, [the deceased] relied heavily on medication, including opiods [sic], as well as psychiatric drugs (citalopram, mirtazapine and alprazoalam [sic]). The medications that [the deceased] was taking affected his cognitive function, and an overdose of medications was ultimately the cause of his death in 2022.

From October 2019, ketamine infusions were trialled to manage [the deceased's] complex regional pain syndrome. Ketamine is used as an anaesthetic and analgesic, and sometimes used for an opioid-sparing effect for patients on a moderate to high dose of opioids, lasting for up to six weeks. While these ketamine infusions were initially planned, they were increasingly precipitated by presentations to the emergency department. The longer the duration since [the deceased's] last ketamine infusion, the greater the degree of pain, anxiety and paranoia that he suffered, and the greater degree to which he relied on other medications to treat his pain, anxiety and paranoia.

From about 2020, [the deceased's] condition worsened. In 2021, [the deceased] had C6/C7 cervical decompression and cervical disc replacement, which led to persistent neuropathic pain in his left arm. [The deceased] suffered numerous "collapses" and inexplicable chest pains, with multiple hospital presentations prior to a diagnosis of pulmonary embolism in early 2022. He presented at the Emergency Department at Frankston Hospital 7 times in 2020, 12 times in 2021, and 28 times in 2022.

33 In relation to the deceased's conduct at around the time the 2021 will was made, Mr Matters made the following observations:

(a) the deceased appeared drug affected, and was forgetful;

(b) the deceased's last ketamine infusion was some 11 weeks prior to the execution of the 2021 will;

(c) in June 2021, the deceased sent a number of 'disturbing' text messages to Mr Matters, and sent emails to his general practitioner referring to his physical pain and psychological distress, and

(d) the deceased was hospitalised and was using medical marijuana in the days prior to the execution of the 2021 will.

34 Mr Matters' submissions then went on to refer to the principles governing applications of the current kind, as explained in the decision of the Court of Appeal in Gardiner v Hughes (No 2).[24] Mr Matters submitted that:

The question is whether the allegations, assuming them to be true, call for further investigation as to the testamentary capacity of the deceased. If so, resolution of that question is a matter for trial. The fact that a particular allegation might, depending on the context, either support an inference of incapacity or not does not mean that a case does not warrant further investigation based on that allegation. That very process of investigation would determine whether or not the inference should be drawn.

35 Mr Matters submitted that the following matters raise a case for investigation as to whether the deceased had testamentary capacity at the time he executed the 2021 will:

(a) the deceased's relationships;

(b) the deceased's medical conditions and treatment; and

(c) the deceased's conduct.

36 In relation to the deceased's relationships, Mr Matters noted that in the 2020 will, the deceased had conferred substantial benefits upon his mother and Mr Matters. He was on good terms with them both, and both had supported him financially and otherwise. Mr Matters submitted as follows:

On the material in the grounds, the most obvious inference that arises is the explanation given in [the deceased's] message to [Mr Matters] that "sometimes my brain tells me you don't like me" even though he "know[s] this is not true".

But, contrary to the plaintiffs' submissions ..., the question for the Court on this application is not what "conclusion" the Court should draw from the grounds. It is whether "the allegations, assuming them to be true, call for further investigation".

The unexplained exclusion of [Mr Matters] and [the deceased's mother] from the 2021 will, in the circumstances, is a matter which calls for investigation as to whether [the deceased] understood the identity of the persons who might have a claim on his bounty.

37 In relation to the deceased's medical conditions and treatment, Mr Matters submitted as follows:

[The deceased's] diagnoses and treating team are quite out of the ordinary. His diagnoses included anxiety, depression, complex regional pain syndrome, autism spectrum disorder, obsessive-compulsive disorder, and post-traumatic stress disorder. All of those conditions could constitute disorders of the mind or give rise to insane delusions.

38 Mr Matters then referred to a number of statements made by the deceased's treating medical practitioners which supported the contention above, and submitted further as follows:

The deceased's treatment exacerbated the risk of disorders of the mind and insane delusions. Ketamine acts by inhibiting NMDA receptors, which are important in the functioning of the brain and are involved in transmitting sensory information, learning and memory, and can produce an effect on the mind similar to a psychotic state. The opioid and psychiatric drugs also affected [the deceased's] cognitive capacity.

The plaintiffs claim that there is no causal or temporal connection between [the deceased's] diagnoses and treatments, and the making of the 2021 will .... The plaintiffs' submissions are again addressed to the wrong question: the question for the Court is not whether [Mr Matters] has established a causal or temporal connection, but whether "the allegations, assuming them to be true, call for further investigation". It is clear that they do.

In any event, there is a clear temporal connection. [The deceased's] visits to the emergency department increase in frequency from 2020 through to 2022. Two of those visits occurred in June and July 2021, immediately prior to the making of the 2021 will. The timing of the making of the will - 11 weeks after the last ketamine infusion - was one of the longer periods that [the deceased] went without a ketamine infusion, increasing the degree of his pain and his reliance on other medications. And the will was made shortly after [the deceased] repeatedly used medical marijuana to treat his pain.

39 As for the deceased's conduct in the period leading up to the execution of the 2021 will, Mr Matters submitted as follows:

[The deceased's] conduct leading up to the making of the 2021 will was highly unusual. His text messages to [Mr Matters] reveal a disturbed and distressed man, concerned about his "primitive emotions", impaired "cognitive abilities", and "insane medicine", and having not slept for six days. He refers to his "brain" telling him things which he knows not to be true. All of these matters raise a further case for investigation that [the deceased] was suffering from a disorder of the mind or insane delusions at the time of making the 2021 will.

40 In his oral submissions during the course of the hearing, counsel for Mr Matters emphasised the following points:

(a) the particulars relied upon by Mr Matters are far more precise and detailed than the particulars that were considered by the Court of Appeal in Gardiner v Hughes (No 2),[25]

(b) the executors resisted orders for the filing and service of affidavit evidence to establish the case for investigation, such that the absence of evidence cannot be relied upon to contend that there is no case for investigation;

(c) the particulars contain detailed allegations regarding the treatment of the deceased in relation to a number of serious medical conditions, which raises doubts about the effect of the deceased's medication regime on his testamentary capacity;

(d) it is very likely that there will be further evidence available at trial relevant to the question of the deceased's testamentary capacity;

(e) as for the executor's submission to the effect that the fact that the 2021 will was drawn and witnessed by a solicitor raises the presumption of testamentary capacity, counsel submitted that this Court should draw the inference that if the executors had persuasive evidence from the solicitor to the effect that the deceased had testamentary capacity at the time the 2021 will was executed, an affidavit to that effect would have been filed. Further, we do not know what the solicitor was told about the deceased's medical condition and treatment;

(f) testamentary capacity can fluctuate, and there is likely to be sufficient evidence at trial to cause the onus of proving testamentary capacity to shift back to the executors;

(g) the change in the testamentary dispositions of the deceased between the 2020 will and the 2021 will, at least insofar as it concerned Mr Matters, was substantial, which is unusual on its face, and more so in the light of the condition and the conduct of the deceased as detailed in the particulars;

(h) he rejected the executors' contention that there was no material change in the deceased's condition and circumstances between the making of the 2020 will and the making of the 2021 will, noting that there were multiple hospitalisations and cervical spine surgery in 2021;

(i) the range of psychological symptoms and conditions referred to by the deceased's psychologist are sufficient to raise the Court's suspicion as to whether the deceased had testamentary capacity;

(j) a full explanation regarding the effects of the medication the deceased was taking is a matter for expert evidence at trial;

(k) the particulars with respect to deceased's conduct in and around the time the deceased executed the 2021 will show how the deceased's medical conditions affected his behaviour, leaving open an inference that the significant change in the 2021 will vis a vis Mr Matters was 'not a result of a free and informed decision'; and

(l) in particular, the communications between the deceased and Mr Matters in that period are suggestive of someone who doesn't really understand what they have done. Counsel submitted as follows:

So taking all that together, we say that there's a clear connection between the deceased's medical history, his conduct prior to the making of the will, and the changes made in the will, which call for a case for investigation.

Again, the main response to this part of the case seems to be, 'Well, the medical evidence isn't specific to the making of the will'. We say that the other evidence is consistent with the medical evidence and connects it, the medical evidence, in time to the making of the will.

41 In their submissions in reply, the executors submitted, among other things, as follows:

(a) the particulars do not support a contention that there was a material distinction between the deceased's testamentary capacity at the time he executed the 2020 will and the time he executed the 2021 will;

(b) Mr Matters' reliance upon the impact of ketamine infusions on the deceased's testamentary capacity is unsupported by any of the medical opinions referred to in the particulars;

(c) that the relationship between the deceased and his mother was not a 'good relationship', given that in the 2020 will, the deceased's mother was only left a piece of furniture, and the particulars do not particularise the financial support said to have been provided by her to the deceased;

(d) the particulars do not provide any detail of any third-party observations to support Mr Matters' 'self-serving' assertion that he had a good relationship with the deceased, and some of the text messages referred to in the particulars support the contrary conclusion;

(e) the particulars do not support Mr Matters' submission to the effect that the deceased's condition began to worsen from about 2020, or that the deceased became increasingly dependent upon ketamine infusions, and the particulars contain no qualified opinion evidence regarding the effects of ketamine upon the deceased;

(f) the changes between the terms of the 2020 will and the terms of the 2021 will are neither radical nor irrational;

(g) the communications between the deceased and his general practitioner referred to in the particulars show that the deceased 'was capable of expressing clear and rational thought to his treating doctor';

(h) the fact that the communications between the deceased and Mr Matters do not show why the deceased changed his mind in relation to his testamentary dispositions 'does not support the need for further investigation about the question of testamentary capacity';

(i) indeed, the communications referred to in the particulars exhibit a high level of self-awareness on the part of the deceased;

(j) there is nothing in the particulars to suggest that the deceased had no understanding as to what his estate was for the purpose of distribution;

(k) there is no evidence regarding the impact of the deceased's use of medical marijuana upon his cognitive function; and

(l) the executors submitted in relation to the deceased's various diagnoses (see paragraph 39 above) that:

...these various afflictions, separately or together, do not constitute disorders of the mind or give rise to insane delusions as asserted by the caveator and, in fact, these are afflictions from which the deceased had been suffering from 2015 until his death in 2022 and not just at the time of his 2021 will.

42 I am satisfied that Mr Matters, by the particulars, has established that there is a case for investigation into whether, at the time he executed the 2021 will, the deceased lacked testamentary capacity. In doing so, I am conscious that while it is a serious matter to contend that a testator lacked testamentary capacity, the bar for establishing a case for investigation is fairly low. Furthermore, while taken in isolation, many of the matters and communications referred to in the particulars would not necessarily of themselves raise a case for investigation; taken together, as it is necessary to do, the particulars paint a picture of the deceased as a man suffering from chronic poor health, severe symptoms of pain, and at times acute psychological distress. Whether those matters affected the deceased's mental faculties at the time of the execution of the 2021 will to such a degree as to render him incapable of exercising his testamentary powers is a matter for evidence and submissions at trial.

43 I accept that some of the observations made by Mr Matters in the particulars regarding the deceased's conduct in the period leading up to the execution of the 2021 will and the immediate aftermath are observations made by an unqualified lay person, and a person with an obvious interest in undermining the validity of the 2021 will. However, ultimately, the question of the weight to be given to the observations of friends and family regarding the conduct of the deceased is a matter for trial, as is the weight to be given to what might be considered to be self-serving evidence.

44 Indeed, the absence of any evidence from Mr Matters or others, including expert evidence, is not something I can place any great reliance upon, given the approach the executors have taken to the current application. While I am not privy to the detail of the arguments made before the judicial registrar regarding the manner in which the application should proceed, I cannot draw adverse inferences from any failure of Mr Matters to file and serve lay or expert evidence given that this course of action was successfully resisted by the executors.

45 I also note that the medical opinions referred to in the particulars are limited to material that is currently only publicly available. I suspect that it is unlikely that any medical practitioners who saw the deceased for treatment or medico-legal examinations would have directly turned their mind to the question of whether the deceased had testamentary capacity at the relevant time, particularly given that the deceased was in his mid 30s at the time of the 2015 accident. However, what is also apparent from the particulars is that at trial there is likely to be abundant evidence concerning:

(a) the deceased's physical and psychological impairments from at least the time of the 2015 accident, including around the time of the execution of the 2021 will; and

(b) the treatment that the deceased was receiving for his various conditions in the period after the 2015 accident, and the impact or potential impact of any medication the deceased was taking upon his cognitive functioning.

46 Indeed, the medical opinions referred to in the particulars may well be just the tip of the iceberg when it comes to the medical evidence potentially available at trial. Not only was the deceased being treated by a large team of health care professionals from a range of disciplines, the TAC claim was on foot at the time the 2021 will was executed. While there are no details of the nature, value and progress of the TAC claim, it is almost certain that there will be some further medical evidence available from the files held by the deceased's solicitors and/or TAC that could become available to the parties through the Court's compulsory evidence gathering processes. Similarly, it would be open to the parties to call expert evidence upon the actual or potential impact of the various medications taken by the deceased upon his cognitive functions, and, possibly, his testamentary capacity.

47 It is correct for the executors to say that the contentions in the particulars regarding the potential impact of the deceased's ketamine infusions and use of medical marijuana upon his testamentary capacity are unsupported by any expert opinion in the particulars. However, insofar as the particulars refer to the deceased's reliance upon ketamine infusions for pain relief, I do not understand Mr Matters to be contending that the deceased's use of ketamine impaired the deceased's cognitive functioning. Rather, I understood the particulars to contain Mr Matters' observations about the impact of any delay in receiving ketamine infusions upon the mood and psychological presentation of the deceased. These are observations that can be made by lay people.

48 As for the impact of other pain relief and psychiatric medications upon the deceased's cognitive function and testamentary capacity at the relevant time, I accept that it is not possible to reach any particular conclusions as to say, the impact of the deceased using medical marijuana or other medication based upon the particulars as they stand. Further, I accept that ill health does not necessarily equate to lack of testamentary capacity. However, one does not need to be a medical practitioner to appreciate that the use of medications with psychotropic qualities may impact a person's judgment and decision making, especially if combined with the symptoms of psychiatric ill-health and other vulnerabilities. For present purposes, I consider that there is 'something to go on'.

49 The executors placed some degree of reliance upon their contention that the particulars do not reveal a meaningful distinction between the position at the time the 2021 will was executed and the time that the 2020 will was executed. However, it is tolerably clear from the particulars that Mr Matters does attempt to draw such a distinction, by reference to various medical events in the lead up to and in the immediate aftermath of 7 July 2021, and the nature and content of the communications between him and the deceased in the relevant period. Whether there was in fact a material distinction is a matter for trial.

50 The executors also contended that the communications with the deceased referred to by Mr Matters in the particulars are consistent with the deceased simply having changed his mind about his testamentary intentions with respect to Mr Matters, rather than with the deceased being delusional in his thinking. That may well be the case, but again, that seems to me to be a matter for trial, particularly given the deceased's references to his brain telling him something that he knows not to be true, and the signs of severe psychological distress evidenced by some of the communications referred to in the particulars.

51 The executors submitted that if one compares the particulars relied upon by Mr Matters in this proceeding with the facts of some of the recent decisions of this Court concerning whether a caveator has established a prima facie case with respect to the question of whether a testator lacked testamentary capacity, then the facts of the current case do not rise to the level of those considered in those decisions.[26] In those cases, the testators were elderly, in some respects infirm, and vulnerable to being pressured by others, and there was direct evidence of diminishing cognitive function.

52 However, apart from stating the obvious proposition that each case must turn on its own facts,[27] in all of the decisions relied upon by the executors, the testators were quite elderly, such that the issue of not only their testamentary capacity, but also their capacity to manage their own affairs generally was closer to the forefront. Further, in each of those cases, there was conduct on the part of family members or employees which gave rise to suspicion.

53 Here, the testator was a relatively young man, and there is no evidence or allegation of his will being influenced or overborne by any particular person. However, he did suffer from a number of complex medical conditions, of largely psychiatric origin, and there is material which indicates that his treatment involved a regime of powerful medication. Further, I also agree that the degree of detail and precision in the particulars was far greater than the particulars which were said by the Court of Appeal in Gardiner v Hughes (No 2)[28] to raise a case for further investigation as to testamentary capacity.

54 Finally, the executors relied upon the presumption that a testator whose will has been prepared and witnessed by a solicitor has the requisite testamentary capacity. I accept that this presumption applies, but in the absence of any evidence from the solicitor who prepared the 2021 will, that proposition remains no more than a presumption. Further, it is quite possible that a solicitor preparing a will for a 40-year-old man may be less alert to the need to assess their testamentary capacity than they might for clients of a more advanced age and more obvious frailty.

55 Accordingly, I am satisfied that, taken as a whole, the particulars reveal matters which show a case for further investigation. The application in the executors' summons filed on 24 April 2024 will be dismissed. I shall hear further from counsel regarding directions for the future conduct of the proceeding and the question of costs.

The testator lacked testamentary capacity during the period shortly before and at the time of execution of the 2021 will.

PARTICULARS

The caveator refers to and repeats the particulars to paragraph 1 above, and says further:

The testator's relationships

(a) The testator was never married, and has no children.

(b) The testator was survived by his mother, Felicia, by his half-brother, Rubin, and by the caveator.

(c) The testator and the caveator are step-brothers.

(d) During the period shortly before and at and around the time of making the 2021 will:

(i) the testator and the caveator were on good terms;

(ii) the testator and the caveator spoke on the telephone and sent text messages to one another often;

(iii) the testator and the caveator, when they spoke, discussed the testator's medical and psychological issues referred to in the particulars below;

(iv) the caveator offered support to the testator in relation to those issues; and

(v) the caveator financially supported the testator, including by making the following payments:

(A) the sum of $1,500 on 10 May 2021;

(B) the sum of $1,000 on 22 September 2021.

(e) During the period shortly before and at the time of making the 2021 will:

(i) the testator and Felicia were on good terms; and

(ii) Felicia financially supported the testator.

(f) Under cl 2(b) of the 2020 will, the testator's mother received a gift of the testator's 18th century reproduction lounge room table.

(g) Under the 2021 will, the testator's mother receives no provision.

(h) The second-named plaintiff, Andrew Lyons (the second plaintiff), is a cousin of the testator.

(i) Under the 2020 will, the second plaintiff:

(i) is not appointed executor or substitute executor;

(ii) under clause 2(f), receives provision in the form of a specific legacy in the sum of $50,000, together with the proceeds of any TAC claim; and

(iii) does not receive any part of the residue of the said estate.

(j) Under the 2021 will, the second plaintiff:

(i) under cl 1, is appointed as co-executor;

(ii) under cl 2(b), received a gift of the testator's 18th century reproduction lounge room table which under the 2020 will was given to the testator's mother;

(iii) under cl 2(d), receives a gift of the testator's remaining musical instruments (save for two of his guitars and one amplifier);

(iv) under cl 2(f), receives provision in the form of the balance of the monies held in the testator's bank accounts together with the proceeds of any TAC claim; and

(v) under cl 3, is a named residuary beneficiary of an equal one-half share of the residue.

(jj) No explanation is given in the 2021 will for the removal of the caveator or Felicia.

(k) In the circumstances, the 2021 will is not rational on its face.

(l) In the above circumstances, during the period shortly before and at the time of making the 2021 will, the testator did not have an understanding of who might reasonably expect to be included in his will and the basis for and nature for such expectation.

The testator's treatment with ketamine and other medications

(m) In or about 2015, the testator was involved in a car accident. A driver in a parking space reversed into the testator, pinning him between her car and his own vehicle, resulting in left foot and knee injuries that necessitated an ankle reconstruction and knee surgery.

(mm) From some time after the car accident that the testator was involved in, until his death, the testator's main general practitioner was Dr Robert Hanner. Dr Hanner provided a statement to a coronial investigation into the testator's death, in which he states that:

(i) the testator was during the time he was seen by Dr Hanner dealing with a number of chronic conditions including anxiety, depression, complex regional pain syndrome, coronary artery disease and autism spectrum disorder;

(ii) the testator suffered numerous "collapses" with multiple hospital presentations prior to a diagnosis with pulmonary embolism in early 2022;

(iii) The testator suffered from chest pains which also caused multiple hospital presentations and which could not be explained by any medical condition;

(iv) The testator had C6/C7 cervical decompression and cervical disc replacement in 2021.

(v) The testator had a team of specialists including Dr John Monagle, a pain management physician; DR Mark Schiff, a psychiatrist; Dr David Tierney and Mr Tony Catanese, psychologists; Prof Owen White, a neurologist; Dr David Oehme, a neurosurgeon; Dr Garry Barron, a cardiologist; Dr Gaurav Srivastava, a haematologist; Dr Luke Crantock, a gastroenterologist and Dr Gary Braun, a respiratory physician.

(vi) Following orthopaedic surgery, the testator developed complex regional pain syndrome and from then his physical and mental health deteriorated.

(vii) The testator relied heavily on medication including opiods [sic].

(mn) From November 2017, the testator's pain specialist was Dr John Monagle. Dr Monagle provided a statement to a coronial investigation into the testator's death, in which he states that:

(i) Dr Monagle first saw the testator in February 2018, where he presented with a long list of medication intolerances, and a list of medications already trialled and failed for his pain.

(ii) By early 2019, ketamine infusions were considered for trial in management of the testator's complex regional pain syndrome, and an initial ketamine infusion was undertaken in October 2019.

(iii) From that time, ketamine infusions continued intermittently. Initially infusions were planned, but increasingly they became precipitated by presentations to the emergency department, which presentations were a complex mix of pain and psychological and social distress.

(iv) The testator's pain was subsequently compounded by persistent neuropathic pain in his left arm after cervical spine disc prolapse/cervical surgery.

(v) The testator was a complex character to manage, particularly in reference to his mental health issues, and intermittently spoke about "not being here".

(vi) The testator used a combination of psychiatry drugs (citalopram, mirtazapine and alplrazolam [sic]) and oxycodone for pain relief.

(mo) On 6 May 2024, the caveator's solicitors wrote to Dr Monagle seeking information in relation to the testator's complex regional pain syndrome, and on 8 May 2024, Dr Monagle informed the caveator's solicitors that he was unable to provide information to anyone other than the executor of the testator's estate.

(mp) From January 2018, the testator's treating psychologist was Dr David Tierney. Dr Tierney provided a statement to a coronial investigation into the testator's death, in which he states that:

(i) Dr Tierney first saw the testator in January 2018 as part of a multidisciplinary treatment program, where he presented with complex regional pain syndrome and post-traumatic stress disorder.

(ii) The testator was also treated for Major Depressive Disorder, Obsessive Compulsive Behaviour, and autism.

(iii) The testator suffered from high levels of reexperiencing, avoidance, arousal, flashbacks, disturbing memories, thoughts and images of the car accident, physiological reactions to experiences that reminded him of the car accident, hypervigilance, intrusive thoughts, a strong startle response, avoidance and difficulties with sleep, anger, poor concentration, and severe symptoms of depression, anxiety and stress.

(iv) The testator reported extreme physical sensations of burning, prickliness, numbness, sharp radiating crawling sensations, intense pain on a daily basis, flare ups that lasted from days to weeks, impacts on his cognitive functioning (memory, concentration, organisational skills) and detrimental impacts on his mood (irritability, anger).

(mq) Dr Gabriel Blecher, a doctor at Peninsula Health, provided a statement to a coronial investigation into the testator's death, in which he states that:

(i) His statement was prepared on the basis of Peninsula Health medical records, which he had reviewed.

(ii) The testator had frequent presentations to the Emergency Department at Frankston Hospital, which included 28 documented attendances in 2022, 12 documented attendances in 2021, and 7 documented attendances in 2020.

(iii) The testator had a documented history of a pulmonary embolus (diagnosed in February 2022), complex regional pain syndrome affecting all limbs, chronic back pain, minor coronary artery disease, post-traumatic stress disorder, severe generalised anxiety disorder and autism spectrum disorder.

(iv) The testator frequently presented to hospital with atypical chest pain.

(mr) Dr Saji Damodaran, a consultant psychiatrist, prepared a letter in June 2020 which was provided to a coronial investigation into the testator's death, in which he states that:

(i) The testator had significant psychiatric syndromes, and reportedly had significant nightmares, ongoing flashbacks, and significant avoidance in relation to certain situations.

(ii) The testator was hypervigilant and was also getting very unsettled, was preoccupied regarding the safety in relation to his anticipated anxiety and avoidance, and was also concerned about his intrusive memories regarding the accident.

(iii) Based on the information available Dr Damodaran was of the opinion that the testator was having posttraumatic stress disorder with residual features along with possible aggravation of his pre-existing generalised anxiety disorder and obsessive compulsive disorder.

(iv) it was quite possible the testator was having a depressive disorder in relation to the pain disorder he was going through, but it was very difficult to disentangle the relative contribution of posttraumatic stress disorder, chronic pain, obsessive compulsive disorder and anxiety disorder.

(n) From in or about 2016 until his death, the testator suffered from complex regional pain syndrome. Complex regional pain syndrome is a syndrome characterised by continuing regional pain that is seemingly disproportionate in time and/or intensity to the usual course of any known trauma or lesion. The pain is regional, in that it is not in the specific distribution of any specific nerve. At trial, the caveator anticipates calling evidence from Dr Hanner, Dr Monagle and Dr Tierney to give evidence of the testator's complex regional pain syndrome and the impact of that syndrome on the testator.

(o) From in or about late 2020 or early 2021, the testator complained of chest pain. At trial the caveator anticipates calling evidence from Dr Hanner, and seeking the issue of a subpoena to obtain Peninsula Health records, in relation to the testator's chest pain and the effect of that pain on the testator.

(p) From a date that is not known to the caveator, but prior to the making of the 2021 will, the testator suffered from:

(i) post-traumatic stress disorder;

(ii) depression;

(iii) severe anxiety; and

(iv) paranoia.

At trial, the caveator anticipates calling evidence from Dr Hanner, Dr Tierney and Dr Damodaran in relation to the testator's psychiatric and psychological issues, and the effect of those issues on the testator.

(q) From at least in or about October 2019, the testator received a ketamine infusion to treat his complex regional pain syndrome, including on:

(i) 15 October 2019;

(ii) 26 November 2019;

(iii) 28 January 2020;

(iv) 28 April 2020;

(v) 20 July 2020;

(vi) 14 December 2020;

(vii) 8 February 2021;

(viii) 19 April 2021;

(ix) 12 July 2021; and

(x) 25 January 2022.

Ketamine is a synthetic compound used as an anaesthetic and analgesic. In the context of pain management, it acts as an analgesic in both the central and peripheral nervous system. Ketamine acts by inhibiting NMDA receptors. NMDA receptors are important in the functioning of the brain and are involved in transmitting sensory information, learning and memory. Their dysfunction is implicated in neurological and psychiatric illnesses. Ketamine also interacts with AMPA and dopamine receptors, which contribute to its psychotomimetic effects (being the ability of the drug to produce an effect on the mind similar to a psychotic estate). Ketamine is sometimes used for an opioid sparing effect for patients on a moderate to high dose of opioids, and can provide a moderate improvement in pain for up to six weeks. At trial, the caveator anticipates calling evidence from Dr Monagle to give evidence as to the effect of ketamine infusions upon the testator, including the testator's pain, the testator's mental health, and the testator's requirement to take opioids and other psychoactive medications when he had not recently been given a ketamine infusion.

(r) The longer the duration since the testator's last ketamine infusion, the greater the degree of pain, anxiety and paranoia that he suffered.

(s) During periods in which the testator was suffering from a greater degree of pain, anxiety and paranoia, he would often have to wait a period of weeks to obtain an appointment to get a ketamine infusion.

(t) At the time of making the 2021 will, it was nearly three months since the testator's last ketamine infusion on 19 April 2021.

(u) In the circumstances, the testator was suffering from a high degree of pain, anxiety and paranoia during the period shortly before and at the time of making the 2021 will.

(v) From a date that is not known to the caveator, but prior to the making of the 2021 will, the testator took medications to treat his pain, anxiety and paranoia, including:

(a) oxycodone, a semi-synthetic opiate used clinically to treat moderate to severe pain;

(b) codeine, an opiate found in opium used for analgesic purposes;

(c) diazepam, a drug used for anxiety, muscle relaxation and seizures;

(d) nordiazepam, a metabolite of diazepam;

(e) oxazepam, a metabolite of diazepam;

(f) alprazolam, a drug used for depression symptoms, panic attacks, and panic disorder;

(g) citalopram, a drug used for major depression and panic disorders;

(h) mirtazapine, a drug used for the treatment of depression;

(i) ondasetron [sic], a drug used for post-operative nausea and vomiting; and

(j) medical marijuana.

At trial, the caveator anticipates calling evidence from Dr Hanner as to the testator's prescribed medications, the frequency with which he took such medications, and the effect of such medications on the testator.

(w) The medications that the testator was taking affected the testator's cognitive function.

(x) The cause of the deceased's death was an overdose of a combination of the above medications. Dr Melanie Archer, a forensic pathologist, in an autopsy report dated 26 August 2022, expressed the view that the testator's cause of death was mixed drug toxicity due to a combination of oxycodone, codeine, benzodiazepines, citalopram, and mirtazapine.

(y) The longer the duration since the testator's last ketamine infusion, the greater the degree to which he relied upon other medications to treat his pain, anxiety and paranoia while awaiting a ketamine infusion.

(z) In the circumstances, the testator was taking medications in excess to treat his pain, anxiety and paranoia during the period shortly before and at the time that he made the 2021 will.

(aa) In at least the 12-month period prior to the making of the 2021 will, the testator spoke slowly and appeared dopey and drug-affected when speaking to the caveator.

(bb) In at least the 12-month period prior to the making of the 2021 will, the testator was forgetful, and on occasions would forget that he had spoken to the caveator days only earlier.

(cc) In or about early June 2021, the testator collapsed while attending a bank branch.

(dd) In or about early June 2021, the testator was admitted to hospital.

(ee) On or about 7 June 2021, the testator sent a message to the caveator in which he stated:

The days feel long

Simple things are becoming hard

...

It's hard when you're alone a lot

I don't know why sometimes my brain tells me you don't like me - I know this is not true

I don't know how but everywhere in my life from a mixture of Covid and being sick things have really turned hard

Honestly I'm upset you didn't help me scheme like teenagers

...

There's a lot of shit going on with some serious changes and I honestly miss you and I'm not good with communication and feelings

(ff) On 7 June 2021, the testator sent a message to the caveator in which he stated:

The problem is when you're in pain you've got limited use of your functions cognitive abilities it becomes hard and then you go to primitive emotions so in my head I was upset because you aid to me to come to you if it was ever a problem and there is a problem and I didn't go as smoothly as I hoped it would ad made me upset and scared and I'm crying as I write this there is serious psychological shit going on here

(fg) On 16 June 2021, the testator sent an email to Dr Hanner, seeking prescriptions for:

(iii) 5 mg valium;

(ii) 10 mg oxycodone;

(iii) 20 mg oxycodone,

The testator said to Dr Hanner that:

(iv) on a recent visit to an emergency room, he had told staff at the hospital he was having a horrible time without his medicine and the hospital was not giving it to him, and missed multiple doses, for hours and hours;

(v) he had told a nurse on the same visit that if his pain gets too high it is very hard to get it under control and that he might need something bigger, and that he had been asking for his own medicine for hours;

(vi) he could scream from pain if it gets too high and it was very high in hospital.

Dr Hanner responded by email the same day, stating that he understood that he was not given pain medication while the hospital staff were investigating a head injury, and agreeing to provide prescriptions if a phone appointment was arranged.

(gg) On 23 June 2021, shortly prior to the making of the 2021 will, the testator sent a message to the caveator saying:

"Man I've had a very big month of medicine I can't remember how to request a movie on Plex can you send me that thing please and by the way what did you think of the desk and it's your birthday soon".

(gh) On or about 23 June 2021, the testator used medical marijuana.

(hh) On 24 June 2021, shortly prior to the making of the 2021 will, the testator sent a message to the caveator saying:

"I'm sorry about how crazy I was I was on some very insane medicine it was fucking with me to say the least".

(hi) On or about 24 June 2021, the testator used medical marijuana.

(hj) On 25 June 2021, the testator wrote an email to Dr Hanner, stating that:

(i) after staying in hospital the previous week, he had stopped using cannabis, but he had struggled badly since, and asking for cannabis to be included in his pain management plan;

(iii) until recently, he had been using it every day as he couldn't handle himself with the pain, and had given up telling people how much he was struggling; and

(iv) he did not want to miss his next ketamine infusion.

(ii) On 30 June 2021, shortly prior to the making of the 2021 will, the testator sent a message to the caveator saying:

"It's tough - haven't slept for six days I've taken something so I will be sleeping tonight thank God - my doctor said I had to break the cycle".

(ij) On or about 30 June 2021, Dr Hanner sent to the testator a copy of a letter to Dr Monagle in which he stated:

(i) the testator, after a recent stay in hospital, had stopped using cannabis, and had struggled badly since;

(ii) the testator used Australian Natural Rocky dried herb CBD on 24 and 25 June to spare his opiate usage;

(iii) the testator had a tendency to build up tolerance to opioids;

(iv) the testator had tried Tegretol on two occasions but that had caused side effects;

(v) the testator used mirtazpine [sic] and Seroquel in preference to temazepam to help with sleep;

(vi) the testator had several episodes of urinary incontinence and dribbling since his recent neck surgery.

(jj) In early July 2021, shortly prior to the making of the 2021 will, the testator was admitted to Frankston Hospital in relation to issues with his heart.

(jk) On each of 3, 4, 6 July 2021, shortly prior to the making of the 2021 will, the testator used medical marijuana.

(jl) On each of 8, 10 and 11 July 2021, shortly following the making of the 2021 will, the testator used medical marijuana.

(jm) On 11 July 2021, the testator said in an email to Dr Hanner that he was hoping that after his next ketamine infusion he would not need medical marijuana.

(kk) On 16 July 2021, shortly following the making of the 2021 will and after a ketamine infusion on 12 July 2021, the testator sent the caveator a message saying, amongst other things: "I love you man I'm sorry about the craziness".

(ll) Following his death, a note was found in which the testator stated he was in "hell on earth".

(mm) In the circumstances, during the period shortly before and at the time that the testator made the 2021 will, the testator:

(0) was twice admitted to hospital in the month prior to the making of the 2021 will;

(i) was finding:

(A) that days felt "long";

(B) that "simple things quite hard"; and

(C) that "things [had] turned really hard";

(ii) was going through "some serious changes";

(iii) was sometimes being "told" by his "brain" that the caveator did not like him;

(iv) had "limited use of [his] functions" and "cognitive abilities";

(v) when things became "hard" would "go to primitive emotions";

(vi) had some "serious psychological shit going on";

(vii) had had a "very big month of medicine";

(viii) was "on some insane medicine" which was "fucking with" him;

(ix) was experiencing sleeplessness;

(ixi) was regularly using medical marijuana; and

(x) when treated with ketamine to relieve symptoms, expressed to the caveator that he "love you man" and was "sorry about all the craziness".

(nn) In all the above the circumstances, during the period shortly before and at the time of making the 2021 will, by reason of the pain, anxiety and paranoia with which he was suffering, and the medications that he was taking, the testator did not have the ability to evaluate and to discriminate between the respective strengths of the claims of the persons who might reasonably expect to be included in his will with a freely functioning mind.

Further particulars may be provided following discovery and/or the issue of subpoenas.

[1] According to inventory of assets and liabilities dated 12 December 2023.

[2] There is no evidence about the nature and quantum of the deceased's claim against the TAC.

[3] In the 2021 will, the deceased offered a friend his dog and the sum of $30,000 for its care, along with the right to reside in his home while the dog is alive, subject to the payment of outgoings.

[4] There seems to be no dispute that Mr Matters has standing to challenge the grant of probate of the 2021 will, by reason of him being a beneficiary under the 2020 will.

[5] Apparently, the making of orders for the filing of affidavit evidence was successfully resisted by counsel for the executors at a directions hearing.

[6] [2019] VSCA 198.

[7] [2023] VSC 72.

[9] [2022] VSC 702.

[13] [2023] VSC 72.

[15] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571-2.

[16] [2022] VSC 15.

[17] [2014] WASC 337.

[18] Re Matthews [2022] VSC 15 [67], citing Public Trustee v Alzheimer's Australia WA Ltd (No 2) [2014] WASC 337 [37].

[19] Re Matthews [2022] VSC 15 [69].

[20] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571-2.

[21] [2022] VSC 15.

[22] [2015] VSCA 60; (2015) 46 VR 123.

[23] See Lynch v Perpetual Trustees Co Ltd [2022] VSC 702; Re Robustelle (No 2) [2023] VSC 72; and Re Baird [2024] VSC 74.

[24] [2019] VSCA 198.

[25] [2019] VSCA 198.

[26] See the decisions referred to at fn 23.

[27] Re Baird [2024] VSC 74 [2].

[28] [2019] VSCA 198.