Plaintiffs v Defendants

Supreme Court of Victoria|2008-09-10|Before: JUDD J

PROBATE - Testamentary capacity of aged testatrix - will prepared by person obtaining large benefit - suspicious circumstances - whether testatrix knew and approved of the contents of her will

1 Maria Henriette Meller died in the early hours of 13 July 2005 at the Darnlee Nursing Home in Toorak, Victoria. She was 91 years of age. Mrs Meller had executed a will on 27 February 2004. She had made a number of earlier wills although the most important is dated 7 December 1990. There were four codicils to the 1990 Will.

2 Under the 1990 Will and codicils most of Mrs Meller's relatives in Australia were to receive gifts of $50,000 each. Some friends, including Julie Foster and relatives in Austria were to receive smaller gifts. The remainder of her estate was left to a number of charities. Mrs Meller's estate is valued at more than $2 million.

3 Under the 2004 Will the gifts to the Australian relatives were, with one exception, substantially reduced and two charities are to receive small cash gifts. If probate is granted of the 2004 Will most of the estate will pass to Julie Foster, her husband Raymond Foster and Ricky Borde.

4 The Fosters and Ms Borde were, on any view of the facts, long time friends and helpers to Mrs Meller. They were also instrumental in the preparation of her 2004 Will under which they each stand to derive a substantial benefit. The executors under the 2004 Will are Mr Foster, Ms Borde and Mr Zucco, a solicitor, who prepared the will and supervised its execution. The plaintiffs in this proceeding, seek probate of the 2004 Will.

5 The defendants are the executors appointed under the 1990 Will. They are David Meller and Peter Shattock. David Meller is Mrs Meller's nephew. Mr Shattock was a partner of Darvall & Hambleton solicitors, which firm and its subsequent manifestations provided legal advice and services to Mrs Meller and her husband, including the preparation of her wills. The defendants challenge the validity of the 2004 Will and seek probate of the 1990 Will. They contend that Mrs Meller lacked the testamentary capacity to make the 2004 Will and that she did not know of or approve the contents of the will at the time it was made.

6 Mrs Meller was born Maria Henriette Wagner on 5 December 1913 in Austria. She was affectionately known as Mitzi. She married Dr Meller in Australia in 1939. Dr Meller had emigrated to Australia in 1938 and Mrs Meller followed him in 1939. On his arrival in Australia Dr Meller lived with Julie Foster's family (the Wilsons) in Brighton. They were Czechoslovakian. Their family name, Vlcek, was changed by deed poll to Wilson in 1939. When Mrs Meller arrived in Australia from Austria she too came to live with the Wilsons. Following their marriage Dr and Mrs Meller continued to live with the Wilsons in Brighton until 1944 when they moved to a flat in Beaconsfield Parade, Middle Park.

7 Dr Meller had qualified as a dentist in Austria, but was required to re-qualify in order to practice in Australia. He did so and thereafter conducted a successful dental practice in Collins Street, Melbourne. Dr and Mrs Meller had no children although Dr Meller had relatives in Australia. The first defendant, David Meller, is the only son of Alex Meller, Dr Meller's brother. David Meller has a sister, Annette. David Meller is married to Denise Meller. They have three sons, Stephen, Paul and Nicholas.

8 In 1947 Dr and Mrs Meller purchased their family home in Westbury Street, Balaclava where they lived together until Dr Meller's death on 12 July 1980. Mrs Meller, then 67 years of age, continued to reside in the family home until admitted to the Alfred Hospital in late 2001. In January 2002 she took up residence at Darnlee.

9 During their life together, Dr and Mrs Meller accumulated real estate and other investments. Mrs Meller had carried on business as a jeweller for a time, making jewellery which she sold from her own shop. After Dr Meller's death, Mrs Meller was supported by rental and dividend income from her investments. She managed her own business and financial affairs from the time of her husband's death until 1998, when she had a fall which necessitated a hip replacement. The accident was a turning point. From then on, Mrs Meller became increasingly reliant on others for her domestic needs. She employed carers to attend her at home, assisting her with showering and dressing.

10 On 10 March 1998 Mrs Meller executed an enduring power of attorney in favour of Ms Borde and Mrs Foster. Mrs Meller had become acquainted with Ms Borde in about 1982 through the Austrian Club.

11 Following a stroke in September 2000, Mrs Meller asked Mr Foster to make arrangements to sign cheques on her behalf. From about that time Mrs Meller's property and financial affairs and some of her day-to-day domestic needs were managed by Ms Borde and the Fosters.

12 Another turning point occurred in October 2001 when Mrs Meller was admitted to the Alfred Hospital following the intervention of Ms Borde and Dr Szental Mrs Meller's treating doctor.

13 While at the Alfred Hospital Mr Ivan Hochberg, a social worker, conducted a routine assessment of Mrs Meller's care requirements. He was informed by hospital staff that Mrs Meller wanted to change her power of attorney and so Mr Hochberg arranged for Dr Forlano, a neuropsychologist, to assess Mrs Meller's capacity. Dr Forlano assessed Mrs Meller on 31 October 2001, concluding that she had severe generalised cognitive impairment and was not competent to make decisions such as changing her power of attorney. Dr Forlano also assessed Mrs Meller on 29 November 2001 and noted that although her cognition had improved overall, her significant deficits remained, as well as her planning and organising difficulties.

14 Mr Hochberg made an application to the Guardianship and Administration Board at the Victorian Civil and Administrative Tribunal ("VCAT") for the appointment of an administrator and guardian. A hearing took place on 6 December 2001 and the Tribunal decided to appoint the Public Advocate as limited guardian to make decisions concerning Mrs Meller's accommodation and medical treatment, but decided that Ms Borde and Mrs Foster should remain her enduring powers of attorney. The Tribunal revoked the bank authority conferred on Mr Foster.

15 Mr Richard Polkinghorn, of the Public Advocate, admitted Mrs Meller to Darnlee on 16 January 2002. The guardianship order made on 6 December 2001 was automatically reviewed in May 2002 and the powers were maintained. In a further review on November 2002, the order was discharged.

16 When Mrs Meller was admitted to Darnlee she was diagnosed as suffering from dementia, Parkinsons disease and other ailments. She remained at Darnlee until her death in July 2005.

17 As Mrs Meller's health and mobility declined she turned to the Fosters and Ms Borde as her regular companions. When she was at Darnlee the Fosters visited Mrs Meller weekly and more often when circumstances permitted. Mr Foster managed Mrs Meller's share portfolio, rent receipts, banking records and the payment of her accounts. Ms Borde was a constant companion, in daily contact with Mrs Meller. She visited Mrs Meller about five days a week. Ms Borde managed the apartment blocks owned by Mrs Meller. She also assumed day-to-day responsibility for Mrs Meller's care at Darnlee.

18 During January and in early February 2004 a new will was prepared in draft form by Mr Foster. Mr Foster deposed that Mrs Meller gave instructions which he recorded in writing and used to prepare a draft which was ultimately given to Mr Zucco by Ms Borde. Mr Zucco was Ms Borde's solicitor. She arranged for him to attend on Mrs Meller at Darnlee on 10 or 11 February 2004 to take instructions. Mr Zucco prepared a new will and supervised its execution at his office on 27 February 2004. The execution was attested by Ms Josie Marchio and Ms Patricia Mastromanno, both employees of Mr Zucco.

19 A comparison between the 1990 Will and the 2004 Will became a feature of the defendants' case. Relevant terms of the 1990 Will and codicils dated 23 July 1991, 28 October 1993, 23 November 1994 and 10 March 1998 are as follows:

(1) Peter Arnold Shattock, Ronald George Laird and David Meller were appointed as executors.

(a) $20,000 to Christina Maria Steyskal (daughter of Peter Steyskal);

(f) $1,000 to Julie Wilson, increased to $10,000 in March 1998;

(h) $1,000 to "Mrs Julie Foster" (this would appear to be an erroneous duplication of the earlier gift);

(i) $20,000 to Stephen Meller, increased to $50,000 in October 1993;

(j) $20,000 to Paul Meller, increased to $50,000 in October 1993;

(k) $20,000 to Nicholas Meller, increased to $50,000 in October 1993;

(3) A direction was given for Mrs Meller's funeral and burial arrangements.

(4) A sum of money be set aside for the maintenance of the graves of the Wagner family and Anna Meller in Vienna.

(5) The residue of the estate, after payment of all debts, was to be divided equally between the Heart Foundation of Australia (Victorian Division) and the Old Peoples Home Waisenhaus in Austria.

(6) A charging clause, allowing any solicitors to charge professional costs for all work performed and charge commission on the administration of the estate, up to same extent as a trustee company.

20 The essential terms of the 2004 Will are as follows. Some material comparisons with the 1990 Will are noted:

(1) New executors and trustees are appointed. They are Mr Foster, Ms Borde and Mr Zucco.

(f) $2,000 to Denise Meller (reduced from $50,000);

(g) $2,000 to Stephen Meller (reduced from $50,000);

(i) $2,000 to Nicholas Meller (reduced from $50,000);

(l) $5,000 to the Peter MacCallum Institute (new gift);

(o) $5,000 to the Old Peoples Home Waisenhaus (new gift).

(3) Anna Steyskal, Margith Klangle, Lillian Milligan and Mathilda Deak are not mentioned.

(4) Specific gifts of the violins and Austrian Keepsakes are maintained.

(5) Julie Foster no longer received a gift of $10,000 and instead was given the share portfolio estimated to be worth about $350,000.

(6) Provision for funeral and burial is maintained.

(7) A sum of money was set aside for the maintenance of the graves of the Wagner family and Anna Meller in Vienna as before.

(8) The residue of the estate, after payment of all debts is to be divided equally between Mr Foster and Ms Borde.

(9) A charging clause, allowing any solicitors to charge professional costs for all work performed and charge commission on the administration of the estate, up to same extent as a trustee company, as before.

21 It is apparent that the 2004 Will contained a number of significant changes when compared with the 1990 Will and codicils. Mrs Meller's share portfolio, which was not specifically referred to in the 1990 Will, was given to Mrs Foster. The residue of the estate, formerly passing to charities, was to be divided equally between Mr Foster and Ms Borde. Annette Meller received an increased gift from $50,000 to $75,000 and the gifts to David Meller's family were uniformly reduced from $50,000 to $2,000 each. There is no longer any gift to Anna Steyskal. On the other hand, there are new gifts including $100,000 to Peter Steyskal and minor gifts of money to members of the Wagner family in Austria. Friends such as Jean Holt and Maria Vrzina also receive gifts of money.

22 A person making a valid will must have a "sound and disposing" mind[1] which means that he or she must understand the nature of the act and its effects, the nature and extent of the property disposed of under the will, the persons who will benefit and the manner in which the property is distributed between them.

23 A testator must also comprehend and appreciate the claims to which they ought to give effect. Whilst the defendants concede that there is no individual who might be said to have a claim upon Mrs Meller's estate in the usual sense, she did have relations by marriage and other persons with whom she had enjoyed long connections. They submitted that Mrs Meller's prior wills disclose a consistent pattern of giving a small proportion of her estate to her relatives and friends and a greater proportion to charities which reflected her interests and those of her late husband. The defendants submit that the evidence raises a question as to whether the changes made to her will can be regarded as rational and appropriate. In this regard they concede that in the absence of any prima facie responsibility to make provision for any of the persons or charities named in the will, the appropriateness of the gifts is difficult to measure. They point out, however, two significant features of the 2004 Will to support their contention that it was irrational, affording evidence of the lack of testamentary capacity. Those two features are the harsh treatment of the Meller family in Australia (with the exception of Annette Meller) and the virtual elimination of gifts to the charities.

24 The party propounding a will, in this case the plaintiffs, bears the onus of proving that the will is that of a free and capable testator. In other words, that at the time of making her will Mrs Meller had testamentary capacity. I will consider the requirements of testamentary capacity in more detail later in this judgment.

25 Whenever the evidence throws doubt upon the competency of the person making a will the court must be satisfied affirmatively that he or she was of sound mind, memory and understanding when the will was made. In Bull v Fulton Williams J said, concerning proof of testamentary capacity:

Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it.[2]

26 An examination of a testator's comprehension and appreciation of claims to which they ought to give effect may bear upon the rationality of a will and provides an indicator of testamentary capacity. In the present case, such an analysis would seem to have limited utility because Mrs Meller died without dependants or near relatives. Dr Meller had died many years earlier and they had no children. On the other hand, Mrs Meller had made substantial gifts to the Meller family under her 1990 Will and these were greatly reduced under the 2004 Will, with the exception of her gift to Annette Meller. In my view, a significant departure from a previous will resulting in a substantial reduction in pecuniary legacies to relatives may point to irrationality and may be an indicator of testamentary capacity. This is not to say that "caprice, or passion, or the power of new ties" will, if reflected in a will necessarily lead to invalidity because, after all, "the English law leaves everything to the unfettered discretion of the testator".[3] But it is undoubtedly true that irrationality of disposition raises a doubt as to testamentary capacity, displacing the presumption of capacity and may afford evidence of a lack of testamentary capacity.

27 At the time she gave instructions for and executed the 2004 Will Mrs Meller was 90 years of age. She had experienced periods of delusion, anxiety and paranoia. Apart from her care by the nursing staff at Darnlee, Mrs Meller was treated by Dr Szental, a general practitioner, and doctors Sutcliffe and Hyland, both specialist psychiatrists. At various times they prescribed medication to treat the delusions, anxiety and paranoia.

28 This is not, therefore, a case in which the will is presumed to have been made by a person competent of understanding upon proof of execution in solemn form. The plaintiffs accept that in this case the court must be satisfied affirmatively that Mrs Meller acted with testamentary capacity when the will was made. The concession is appropriate. The evidence raises a doubt as to testamentary capacity at the relevant time. That requires me to undertake, "a vigilant examination of the whole of the evidence" and if "the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted". [4]

29 Such an approach to the evidence, however, requires caution. For, as Gleeson CJ said in Easter v Griffith, "the power freely to dispose of one assets by will is an important right, and a determination that a person lacked (or has not been shown to have possess) a sound disposing mind, memory and understanding is a grave matter".[5]

30 Affirmative satisfaction of testamentary capacity at the time the will was made invites an examination of the position at the time of execution[6] or, if instructions for the will preceded its execution, when instructions were given.[7] I find, for reasons expressed below, that the time at which the assessment should be made is the time Mr Zucco reviewed the draft will with Mrs Meller at Darnlee on 10 or 11 February 2004, as the date upon which he took instructions. The date of execution (27 February 2004) is, however, equally important having regard to the requirement, again explained below, that the plaintiffs prove that Mrs Meller knew and approved of the 2004 Will at the time of execution. Accordingly, I will assess whether Mrs Meller had testamentary capacity on each occasion.

31 Notwithstanding proof of testamentary capacity at the relevant time, where "suspicious circumstances" exist the court must also satisfy itself that the maker of the will knew and approved of its contents, which would hardly be possible if they lacked the capacity to make a will.[8] In Trust Company of Australia Ltd v Daulizio and ors[9] Mandie J referred to a passage from Barry v Butlin[10] as the starting point in relation to the law concerning "suspicious circumstances". In that case, Park B said,

These rules are two; the first, that the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable Testator. The second is, that if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased."

32 Once suspicious circumstances are shown to exist, the plaintiffs are required to satisfy the court that Mrs Meller knew what she was doing when she executed the will.[11] Suspicious circumstances include a case where a person writes or prepares a will under which he or she takes a benefit.[12] In my opinion the circumstances surrounding the preparation of the 2004 Will requires the plaintiff to satisfy the court that Mrs Meller, acting with a free mind, knew and approved the contents of the 2004 Will when she executed it.

33 The evidence in this case falls into three broad categories: (1) evidence of the relationship between Mrs Meller and the beneficiaries under the 2004 Will; (2) direct evidence of the circumstances in which instructions were taken and the 2004 Will executed; and (3) medical evidence relevant to Mrs Meller's testamentary capacity and knowledge and approval of the 2004 Will.

34 There is no doubt that the connection between Mrs Meller and the Wilson family was longstanding and significant. Mrs Foster, now aged 72, gave evidence that she was regarded by Dr and Mrs Meller as their own daughter. When Julie Wilson married Mr Foster in 1960 the Mellers attended their wedding. The Fosters have two children and the Mellers took an active interest in the education and development of the children throughout childhood and into adulthood. The two families shared birthdays and other celebrations together. Following Dr Meller's death on 12 July 1980, the Fosters began to play a much greater role in Mrs Meller's life. Mrs Foster remained in almost daily telephone contact with Mrs Meller and Mr Foster undertook handyman jobs around Mrs Meller's home. Mrs Foster said in evidence that even when she and her husband were on holidays Mrs Meller insisted that she telephone her every night. This is consistent with a view I have formed, that Mrs Meller was a very demanding person who expected attention from those around her.

35 The childhood and familial connection between the Wilsons and the Mellers does not explain the dramatic change that took place under the 2004 Will. Under a previous will Julie Foster was to receive $500 which increased to $10,000 under the 1990 Will. In comparison with other gifts, the gifts to Julie Foster were modest.

36 Shortly before Mrs Meller underwent her hip replacement operation in 1998, she asked Mrs Foster and Ms Borde to act as her enduring power of attorney. Mrs Meller was apparently concerned about her ability to manage her business and private affairs in the future. She made it clear to Mrs Foster that she did not want her home sold until after her death and gave some instructions about how her funeral was to be conducted. Mrs Foster deposed that Mrs Meller told her that she, Mr Foster and Ms Borde were the only people she could trust to carry out her wishes.

37 Following her hip operation, Mrs Meller's carers would occasionally telephone Mrs Foster and ask for her assistance. The Fosters lived in Seaford and would travel by public transport to Balaclava to assist Mrs Meller when required. During Mrs Meller's hospitalisation, following her hip operation, Mrs Foster would visit her in hospital on a regular basis and take care of her laundry. Mrs Foster does not have a drivers licence and so was dependent on public transport.

38 When Mrs Meller was admitted to the Alfred Hospital in late 2001 the Fosters visited her at the hospital twice a week until her health improved and then weekly until she was transferred to Darnlee. Mrs Foster deposed that when Mrs Meller was admitted to the Alfred Hospital she became angry with Ms Borde, apparently blaming Ms Borde for her admission. Some time later Mrs Meller read a medical report from the Alfred Hospital and then realised how ill she had been. She told Mrs Foster that she was indebted to Ms Borde for calling Dr Szental, her treating doctor, who had admitted her to hospital and called the ambulance.

39 After Mrs Meller was admitted to Darnlee it was the Foster's practice to visit her at least weekly and more frequently depending upon Mr Foster's health. Mr Foster suffered from prostate cancer and was hospitalised on occasions. Mrs Foster deposed that Mrs Meller was very angry and frustrated at Darnlee, believing that she had been locked away and no longer in control of her life. Mrs Foster said that she was grateful to Ms Borde for attending to Mrs Meller's day-to-day needs. She described Ms Borde as a very close and caring friend to Mrs Meller. Mrs Foster deposed that Mr Foster took over the management of some of Mrs Meller's financial affairs after she was admitted into Darnlee, although Mrs Meller maintained a keen interest in them. Mr Foster discussed Mrs Meller's business affairs with her during their visits. Mrs Meller would want to know about her property and would inquire about the tenants, rents and repairs. Mr Foster would also discuss her share portfolio and fluctuations in value.

40 Mr Foster deposed that he first met Mrs Meller in 1958 when he and Julie were courting. He and Julie married in 1960. He assisted the Mellers at their home as a handyman over many years, even prior to the death of Dr Meller. Following Mrs Meller's stroke in September 2000, he was asked by Mrs Meller to accept responsibility to sign cheques on her behalf and on 6 September 2000 he signed an authority form at the Bank of Melbourne, Balaclava branch. This authority was revoked in 2001 by the Tribunal in favour of powers of attorney then granted to Mrs Foster and Ms Borde. Mr Foster also assisted with paperwork relating to Mrs Meller's financial affairs. He said that it was Ms Borde who managed Mrs Meller's properties. He had the practice of taking Mrs Meller's business papers, including a record of share values and rental and bank statements to his meetings with Mrs Meller which occurred about every week and sometimes more often and discussing her business affairs with her.

41 Ms Borde first met Mrs Meller in approximately 1982 through a mutual friend. They were both members of the Austrian Club. Ms Borde was of Dutch origin and said that Mrs Meller was very fond of the Dutch people because they had helped the Austrian people during the Second World War. Mrs Meller had apparently been fostered by a Dutch family in Holland for four years.

42 Between 1982 and 1998, Ms Borde visited Mrs Meller at her home once or twice a week. She became acquainted with David Meller, his wife Denise and their three boys, Stephen, Nicholas and Paul, and also Annette Meller.

43 Ms Borde said that following Mrs Meller's hip replacement in 1998 she visited Mrs Meller every day in hospital and when rehabilitating at home. From that time Mrs Meller came to rely upon Ms Borde more and more and would often telephone her at night. Ms Borde said that on 12 October 2001 she was contacted by one of Mrs Meller's carers who told her that Mrs Meller wished to see her. When she arrived there was no one present to assist Mrs Meller so that Ms Borde was required to step in and assist Mrs Meller with her personal needs. In doing so she noticed that Mrs Meller was unwell and had a large bedsore. She contacted Dr Szental who arrange to have Mrs Meller admitted to the Alfred Hospital by ambulance.

44 Ms Borde said that Mrs Meller had always been very concerned to maintain her independence and was anxious about the prospect of losing it. She said that Mrs Meller was not happy about being taken by ambulance to hospital and for some time blamed her for this. At that time Ms Borde and Mrs Foster held an enduring power of attorney for Mrs Meller. They authorised treatment for her at the Alfred Hospital.

45 Ms Borde deposed that Mrs Meller was a very private person in relation to her business and financial affairs and did not disclose such matters to many people. She did, however, confide in Ms Borde and the Fosters concerning the management of her investments. Ms Borde said that when Mrs Meller was admitted to Darnlee in January 2002 she would visit her about five times a week, usually at meal times to assist her with eating. She often brought food in response to requests by Mrs Meller. Sometimes Ms Borde would visit Mrs Meller at night and encourage her to watch television to provide some additional stimulation. Apart from her interaction with Mrs Meller during the day Ms Borde would telephone Mrs Meller at Darnlee almost every evening and talk with her about such matters as what was on television and what food she might bring the following day. She said that Mrs Meller was a dedicated viewer of Inspector Rex on SBS because it was located in Austria.

46 Ms Borde deposed that she often observed Mrs Meller in the television room at Darnlee enjoying the company of other residents. She said that she was involved with the staff at Darnlee who consulted her concerning matters relating to Mrs Meller's care. She was the point of contact for the staff if there was a problem with Mrs Meller's medication. She said that Mrs Meller was sometimes demanding of staff at Darnlee which gave rise to resentment. She was vocal in asserting her rights. Ms Borde said that she occasionally observed David and Annette Meller visiting Mrs Meller and that these visits became more frequent in the last six months of Mrs Meller's life.

47 Dr Peter Steyskal was Mrs Meller's cousin and is a high school teacher living in Austria. He deposed that he had known Mrs Meller since he was about 10 years old and that Mrs Meller would sometimes visit his family in Austria. They corresponded regularly by letter from about 1990 and also talked regularly on the telephone. He was aware that Ms Borde was a close friend of Mrs Meller. It was Ms Borde who contacted him when Mrs Meller was admitted to hospital and informed him when Mrs Meller was admitted to Darnlee. He said that when Mrs Meller first went to Darnlee there were difficulties in contacting her by telephone and he did so via a mobile phone belonging to Ms Borde. He would usually telephone her on Saturday evenings. He said that during his conversations with Mrs Meller between the time of her admission to Darnlee and her death, Mrs Meller spoke with him on a range of topics including reflections on her past, her activities at Darnlee, her painting and various outings with Ms Borde. Dr Steyskal recalls that at the end of 2003 Mrs Meller reminded him that cemetery fees were due and requested him to make sure that the family grave in Austria was maintained and paid for so that her ashes could be buried there as well. On one occasion Dr Steyskal asked Mrs Meller about her late husband's family and whether they maintain contact with her, to which she replied, "they don't visit me often". Mrs Meller told Dr Steyskal that she was supported by long-time friends, the Fosters and Ms Borde. Mrs Meller told him that without visits from the Fosters and Ms Borde her life would have been very lonely. She said that she was not mobile and could not get out of Darnlee herself and was particularly grateful for the contact with the Fosters and Ms Borde.

48 Dr Steyskal deposed that Mrs Meller never discussed the terms of her will with him except for one occasion when she mentioned to him that she had given consideration to including him and his daughter as beneficiaries. Dr Steyskal said that he was not surprised that she left most of her estate to the Fosters and Ms Borde. He deposed that in all of his conversations with Mrs Meller he never doubted her mental capacity. He said that she sometimes spoke softly and slowly but he attributed this to the side effects of the Parkinson's disease she suffered. He said that the last conversation he had with Mrs Meller was about three weeks before she died and they talked for some time. He said that he found her very alert. A few days after that conversation, Dr Steyskal received a telephone call from Ms Borde informing him that Mrs Meller was unwell. Thereafter he maintained telephone contact with Ms Borde about Mrs Meller's condition until her death.

49 David Meller, the first defendant, is the son of Alex Meller, Dr Meller's brother. He deposed to a longstanding family relationship with Mrs Meller. He said he had known Mrs Meller all his life. The family would meet to celebrate birthdays and Christmases. He deposed that his relationship with Mrs Meller grew closer and stronger following the birth of his sons. In 1993 Mrs Meller informed him that she had made him an executor of her will. She gave him her solicitor's contact details and a set of keys to her home. When Mrs Meller became less mobile in the late 1990s, David Meller provided her with an "easy walker" and later a wheelchair. Whenever Mrs Meller was in hospital he would visit her on a regular basis. When she was at the Alfred Hospital at the end of 2001 he visited her on a weekly basis. David Meller observed that Mrs Meller was very private and even obsessive about money and it was for that reason he declined appointment as Mrs Meller's administrator and power of attorney when requested by her solicitor, Mr Allen, at the time Mrs Meller was in the Alfred Hospital.

50 David Meller deposed that he and his sister Annette chose Darnlee as the place to which Mrs Meller would be sent from the Alfred Hospital by her appointed guardian. He and Annette took Mrs Meller to the dentist in 2002 and to an appointment with Dr Szental in mid-2003. He said that he and his wife and sometimes with one or more of his sons, would visit Mrs Meller about every six weeks on a Sunday for between one-and-one-half and two hours. He deposed:

We invariably sat and chatted in an alcove near Mitzi's bedroom, where she seemed to prefer to receive visitors. In conversation it was usually my wife Denise who did the talking. Mitzi did not talk much. Her voice was very low and sometimes inaudible. We would ask her whether she had received any other visitors and she was never able to give an answer. Sometimes she would not respond at all to questions. Her demeanour and level of communication would vary from time to time, but over the three years she was at Darnlee she slowly but perceptively declined in physical and, it seemed, mental health. David Meller last saw Mrs Meller on the day shortly before she died on 13 July 2005.

51 Annette Meller is the sister of David Meller. Unlike the other members of the Meller family her gift under the 2004 Will is greater than it was under the 1990 Will. She described herself as the daughter Mrs Meller never had. There was no doubt a close family connection between Mrs Meller and Annette Meller and, it would appear, mutual affection. Annette Meller described Mrs Meller as very stylish with a flare for fashion; very Viennese, very European. She said that Mrs Meller ran her own jewellery business and was very independent and had great business savvy.

52 Annette Meller deposed that in the mid-1990s Mrs Meller became increasingly erratic and immobile and desperately sought attention from the people around her. She would become hostile and difficult if she did not get the attention she wanted. She described Mrs Meller as very generous with money and that "money was the language of transaction".

53 Annette Meller described Ms Borde as very strong minded and domineering. She was a woman who liked to take control of matters and have her own way. She was apparently outraged by the amount of money Mrs Meller was spending on her carers prior to being admitted to Darnlee. This was in the period after 1998 and prior to 2002. Annette Meller describes Ms Borde as essentially becoming Mrs Meller's sole carer and confidante, catering to her needs. She said that David Meller's family was initially grateful for that assistance, given how demanding Mrs Meller could be and the fact that Annette and David Meller lived some distance from Mrs Meller's home.

54 Annette Meller deposed that she visited Mrs Meller as often as she could. She said that Mrs Meller seemed to blame her for putting her in a nursing home. She deposed that Mrs Meller seemed to have no concept of her frailty. She said that one time Mrs Meller was convinced that some of the nurses were trying to poison her and she was seeing ghosts at night. Annette Meller described Mrs Meller as becoming anxious, losing weight, becoming withdrawn, paranoid and suspicious. She describes an event in December 2002 when she and her brother, David, took Mrs Meller to the dentist. She said that Mrs Meller seemed to enjoy the attention. She also assisted Mrs Meller in July and August 2003 with medical appointments.

55 Annette Meller deposed that on a good day Mrs Meller could be funny, witty and remember things but on a bad day could be withdrawn and grumpy. As became customary among lay witnesses in this case, she deposed to conclusions and opinions about Mrs Meller's mental capacity. She said,

Notwithstanding the fluctuations in mood, it seemed to me that by this time (August 2003) her cognitive and emotional state had so deteriorated that she lacked sufficient awareness and insight to make a rational decision about anything.

But, importantly, Annette Meller also observed in her affidavit,

From very early on Ricky dominated aunty and gave her plenty of attention. Aunty seemed to revel in the attention whether good or bad. Ricky had made herself indispensable in aunties' eyes and won her confidence. Aunty had become so dependent on her.

56 Annette Meller deposed that from 2003 onward, Ms Borde told her that Peter Steyskal and his wife and daughter in Austria were now Mrs Meller's family and that she was disappointed in her family in Australia. Annette Meller described Mrs Meller as having lost her ability to concentrate for any length of time. As a consequence she could not concentrate to read or to use the telephone or to watch television. On the other hand, Annette Meller agreed in cross-examination that Mrs Meller remained astute and independent in relation to some matters even when in a very compromised physical and mental condition at the Alfred Hospital.

Counsel: And you would be surprised to think that she was capable of raising the topic of who should be her attorney with anyone at that stage?

Witness: She could still - she always gave attention to her - her affairs, and being as - trying to be, as many elderly people do, as independent as possible. Therefore she used to worry about the house and worry about her finances. That was par for the course. That was part of her, that she would be very - no matter how unwell she felt, she would be conscious that these things needed attention. So, she could have raised - in fact - I think she did raise the question of management of her money and her finances, her property.

57 Stephen Meller is the son of David and Denise Meller and a beneficiary under the 1990 and 2004 Will. Under the 1990 Will, Stephen was to receive a gift of $50,000 whereas under the 2004 Will the gift is reduced to $2,000.

58 Stephen Meller described his relationship with Mrs Meller as a child and while at university. He said that there had existed a close family bond which blossomed in the period 1996 to 2000 when, while attending Monash University, he would visit Mrs Meller about once each week. He deposed that although they did not have much in common they would discuss many topics and she seemed grateful for his presence and interest in her. Stephen Meller deposed that during his regular visits he became acquainted with Ms Borde and Mrs Foster. He said that although he only saw them a handful of times they made a lasting impression upon him. He said he felt uncomfortable in their presence and thought them controlling and overbearing where Mrs Meller was concerned. His visits had become irregular after the year 2000. He travelled overseas and returned to Melbourne in February 2004 but due to an illness did not visit with Mrs Meller until March 2004. On that visit he found her in a very frail state. He deposed,

I was very distressed as she was unable to speak with any volume in her voice and was clearly immobile, sitting in a wheelchair. I recounted my adventures overseas to her. She did not respond or appear to be aware that I had spent the year abroad. She was vague and distant. Her deterioration, both physical and mental, was saddening and depressing.

59 Paul Meller is a son of David and Denise Meller. He is also a beneficiary under the 1990 Will and the 2004 Will. His entitlement as a beneficiary under both wills mirrored that of his brother, Stephen.

60 Paul Meller deposed that apart from family functions and get-togethers he would visit with Mrs Meller every week during the period 1999 to 2001. At that time he was working at St Kevin's College, Waterford Campus, then located at Carlisle Street, Balaclava. During the summer he would visit with Mrs Meller daily during his lunchbreak. He observed during those visits that it was not uncommon to find himself repeating conversations week after week. He observed that Mrs Meller's memory was not as good as it had been and that her memory of recent events was poor and her memory of past events was often jaded. He said that he disliked Ms Borde who, when present, treated his visits as an imposition on Mrs Meller's time. He found Ms Borde irritating and rude. He said that he never quite understood the relationship between Ms Borde and Mrs Meller.

61 Paul Meller deposed that in 2002 he spent the entire year overseas on a university study exchange but prior to departing spent time with Mrs Meller going through his itinerary. She asked him to travel to Vienna and take photographs for her. When he returned from overseas in early 2003, he visited with Mrs Meller at Darnlee. He noticed a deterioration in her health, particularly her mental health. He deposed that during that visit Mrs Meller barely recognised him and had no recollection whatsoever of his year travelling overseas. He observed that she appeared to have no concept of time. Paul Meller showed Mrs Meller the photographs of his trip. He said that she looked vague and seemed unable to comprehend that he had been overseas for 12 months. He only visited Mrs Meller once or twice more before she died. He said he found the visitations depressing.

62 Nicholas Meller is another son of David and Denise Meller. He is a beneficiary under the 1990 Will and the 2004 Will and his entitlement under each will is the same as for Stephen and Paul Meller. Nicholas Meller deposed that he would visit with Mrs Meller mostly with his parents. He recalled visiting her at Darnlee and observed that she was unhappy being in a place where everyone else had "lost their marbles". He observed her continuing to paint brooches and engage in her other artistic pursuits. As time passed Nicholas Meller observed her deteriorating health, both mentally and physically.

63 Denise Meller is the wife of David Meller and the mother of Stephen, Nicholas and Paul. She deposed to the relationship between Mrs Meller and her family. She deposed that Mrs Meller was very demanding. She described an incident where Mrs Meller had telephoned her saying that she needed assistance and then dropped the telephone causing Denise Meller to drive across Melbourne to her home in a panic only to find her bright and well. Apparently Mrs Meller wanted Denise Meller to keep her company. This would indicate manipulative behaviour and is consistent with the evidence of other witnesses.

64 Denise Meller deposed that when Ms Borde took over the management of Mrs Meller's financial affairs she became indispensable to Mrs Meller. She said that Ms Borde caused a lot of friction with the nursing staff attending Mrs Meller at her home. She observed Mrs Meller becoming increasingly reliant and dependent on Ms Borde.

65 It was Ms Borde who contacted Denise Meller informing her that Mrs Meller was being admitted to the Alfred Hospital. Denise Meller deposed that when Mrs Meller was admitted to the Alfred Hospital in 2001 she had apparently informed the staff that she had no relations. She deposed that from 2001 onward Mrs Meller seemed to blame David, Robert Allan, her solicitor, and herself for not carrying out her wishes to appoint different attorneys. Denise visited Mrs Meller at Darnlee from time-to-time. She deposed that Mrs Meller did not actively participate in conversations. Her voice was low and sometimes very weak. Sometimes Mrs Meller would tell Denise that she had not heard from or seen Annette Meller. Upon enquiry it would be discovered that Annette Meller had only recently visited with Mrs Meller.

66 Denise Meller deposed that, despite earlier good relations, Mrs Meller's attitude toward her changed whilst she was in Darnlee. She deposed that Mrs Foster and Ms Borde told her that Mrs Meller did not trust her and that she was a gold-digger. This was denied by Mrs Foster.

67 Robert Allen is a partner of Phillips Fox, solicitors. Mrs Meller was a client of Darvall & Hambleton and its subsequent manifestations since at least 1970. She became a client of Phillips Fox following a merger of firms in 1993. Mr Allen took over the care and conduct of her file in 1997. Mr Allen deposed to Mrs Meller's prior wills.

68 Mrs Meller's first will is dated 6 August 1970. Prior to her 2004 Will Mrs Meller made nine separate expressions of her testamentary wishes, including five codicils. These include the 1990 Will and earlier wills mentioned in more detail below.

69 On 21 and 24 June 1999 Mr Allen had telephone discussions with Mrs Meller in which she gave him instructions to change her will and to remove Ms Borde as attorney under power. She was apparently content to have Mrs Foster remain her sole attorney. While some documentation was prepared it was never advanced because Mr Allen did not receive any further instructions from Mrs Meller.

70 Mr Allen deposed that his next dealing with Mrs Meller was initiated by David Meller on 19 October 2001 when he was informed that Mrs Meller wished to revoke the earlier powers of attorney, appoint the Fosters as her attorneys and remove Ms Borde. This communication coincided with Mrs Meller's admission to the Alfred Hospital. Mr Allen said that he prepared relevant documentation and visited Mrs Meller at the Alfred Hospital and had a discussion with her concerning her wishes. Having explained to her his understanding of her wishes (apparently derived from David Meller) he asked Mrs Meller whether she agreed and she indicated that she did. Mr Allen was, however, concerned about her age and health and whether or not she had the capacity to execute such a document. He raised his concern with medical staff who advised that they would undertake tests that would indicate her capacity. Thereafter, Mr Ivan Hochberg of the Social Work Department of the Alfred Hospital became involved. It is not clear whether his involvement was initiated by Mr Allen or other events. Ultimately, Mr Hochberg made an application to the Tribunal for the appointment of an administrator and guardian. Mr Allen attended the hearing before the Tribunal at which a guardian was appointed to make decisions on behalf of Mrs Meller concerning accommodation and medical treatment.

71 Insofar as there was any challenge to the credit of a witness, it was faintly made and unsuccessful. I accept that each witness gave an honest account of their relationship and dealings with Mrs Meller. There was, however, an almost universal tendency among lay witnesses to express opinions and conclusions, without objection, about Mrs Meller's cognitive abilities and testamentary capacity. Such opinions and conclusions were unhelpful. In a case such as this, the evidence of lay-witnesses should be confined to direct evidence of their relationship, and of their observations and interactions where relevant. Unfortunately, many of the opinions and conclusions replaced or masked observations which might have proved more helpful in making the assessments I am required to make. Notwithstanding that criticism, the evidence from the lay-witnesses supports the following findings:

(1) Mrs Meller's physical and mental health declined following her fall and resulting hip operation in 1998. Even so, Mrs Meller remained astute to her financial affairs. As Annette Meller aptly put it, to Mrs Meller "money was the language of transaction". David Meller said that she was obsessive about money.

(2) While Mrs Meller became less audible in conversation, more forgetful and apparently disinterested in some topics, events and people, she was capable of and did focus on her financial affairs even when unable to deal competently with other aspects of her life. Her propensity to focus on matters concerning her financial affairs is apparent from the evidence of the Fosters, Ms Borde, Mr Zucco and Annette Meller, who said that "no matter how unwell [Mrs Meller] felt, she would be conscious that [her finances] needed attention".

(3) As her health declined Mrs Meller became more dependent on those who were willing and able to provide for her day-to-day needs. This was particularly so with persons who would provide her with companionship and attention. These persons were Ms Borde and the Fosters. Annette Meller observed that Ms Borde became Mrs Meller's sole carer and confidante. Mr Foster managed her business affairs. They became as if Mrs Meller's family. In that regard the evidence of Dr Steyskal is important; Mrs Meller had told him that without visits from the Fosters and Mrs Borde her life would have been very lonely. Mrs Meller was lonely and craved companionship.

(4) David and Denise Meller and their sons were, as they describe, attentive and helpful to Mrs Meller. They visited when they could and behaved towards Mrs Meller with respect for her privacy, while at the same time maintaining appropriate social contact and attending to familial responsibilities. They did not visit Mrs Meller as often as Mrs Meller would have liked. That is in no way intended as any criticism of them. Rather, it is a reflection of Mrs Meller's demands for attention which were largely satisfied by Ms Borde and the Fosters.

(5) With the growing intensity of the relationship between Mrs Meller and the Fosters and Ms Borde, brought on by Mrs Meller's demands for attention and companionship and her growing dependency on them, the importance to Mrs Meller of her Australian family seems to have diminished, although it did not disappear. This is reflected in the 2004 Will, in which the gifts to the family of David Meller were significantly reduced when compared with their entitlements under the 1990 Will. But they were not forgotten. The inclusion of additional Austrian family members among the beneficiaries indicate a knowledge and awareness of her surviving relatives and deliberate discrimination between them.

(6) Frequency of contact with Mrs Meller appears to have become increasingly important to her and is reflected in the increased gift to Dr Steyskal, who maintained telephone contact from Austria, as well as in her gifts to the Fosters and Ms Borde and perhaps even Annette Meller.

(7) Ms Borde and the Fosters became indispensable to Mrs Meller. Mrs Meller was grateful for their care and attention.

(2) Background, preparation and execution of the 2004 Will

72 Mrs Meller's first will was dated 6 August 1970. By that will, Mrs Meller appointed her husband as executor and sole beneficiary. In the event her husband did not survive her she appointed the second defendant and Ronald George Laird as executors. At the time Peter Shattock and Ronald Laird were partners of Darvall & Hambleton, Solicitors. That firm subsequently became known as Darvall & McCutcheon. Mrs Meller made a number of gifts under her first will including $5,000 each to her nephew Peter Steyskal, her niece Annette Meller and her nephew David Meller. She made a gift of $500 to Julie Wilson, a gift to the trustees of an Austrian cemetery. The residue of her estate, after payment of debts and the maintenance of her dog was to be divided in three equal parts between the Australian Jewish Welfare and Relief Society, a Roman Catholic Church in Austria and the Waisenhaus Old Peoples' Home in Austria.

73 Mrs Meller made a second will on 16 January 1978 which differed from her first will in that the gifts to her relatives Peter Steyskal, Anna Steyskal and Annette Meller were increased and small gifts were made to various friends including $500 to Julie Wilson. The residue of the estate went to three charities - the Heart Foundation of Australia replaced the Roman Catholic Church in Austria, but the other two charities remained the same.

74 On 13 December 1983 Mrs Meller made a third will. This will was made following the death of her husband. She appointed David Meller, Peter Shattock and Ronald Laird as executors and trustees. Gifts of $20,000 were made to each of Peter Steyskal and Anna Steyskal. Annette Meller was to receive $10,000. Various other gifts in lesser amounts were made to relatives and friends. It is interesting to note that there is one gift of $1,000 to Julie Wilson and another of $1,000 to Mrs Julie Foster both at the same address. Each of Stephen Meller, Paul Meller and Nicholas Meller were to receive gifts of $10,000 each. Provision was made for funeral arrangements and for the care of the Knopp-Wagner family grave and also the grave of her husband's mother at the Vienna cemetery. The residue of the estate, after payment of debts, was to be divided between the charities identified in the 1978 Will, namely, the Australian Jewish Welfare and Relief Society, the Heart Foundation of Australia and the Waisenhaus Old Peoples' Home in Austria.

75 In 1987 Mrs Meller made a codicil to her 1983 Will in which she left the proceeds from a bank account in Vienna to Anna Steyskal and the violins and bows of her husband Dr Rudolph Meller, to the Conservatorium of Music at Melbourne University. She gave her Austrian keepsakes to the Austrian Cultural Society and set aside $10,000 to be applied to the maintenance and welfare of her dog.

76 The next will was made on 9 December 1990. I have already set out the relevant detail of that will and the codicils.

77 Mr Foster deposed that in about January 2004, during a visit to Darnlee, Mrs Meller told him that she wanted to change her will and asked him to be an executor. She said that he was the only person she could trust to make the will changes correctly and without bias. Mrs Meller asked Mr Foster to obtain a copy of her will from her solicitor, Mr Allen. The Fosters went to see Mr Allen. Mr Allen's final involvement in the affairs of Mrs Meller was on 5 February 2004 when the Fosters came to his office. Mr Allen said that the Fosters told him that Mrs Meller wished to have a copy of her will. He told them that he would not provide them with a copy until he was satisfied that Mrs Meller had the capacity to make a will and therefore the capacity to give instructions. Mr Allen said that the Fosters told him that Mrs Meller had now "discovered who her friends are" and wanted to make a new will. They told him that Mrs Meller knew who her friends were by the level of visitation she had received. Mr Allen said that he advised the Fosters that a formal review of Mrs Meller's capacity should be undertaken.

78 Mr Allen said that his concern about Mrs Meller's capacity, when approached by the Fosters, was based upon the outcome of the tests that had been done when Mrs Meller had been in the Alfred Hospital in 2001. According to the assessment made at that time by Dr Forlano, Mrs Meller had severe generalised cognitive impairment and was not competent to make decisions such as changing her power of attorney. Mr Allen did not visit Mrs Meller at Darnlee. Notwithstanding the visit from the Fosters on 5 February 2004, Mr Allen did not make any attempt to contact Mrs Meller in connection with her will or her intentions to change her will or otherwise intervene in a process he correctly understood may lead to the preparation of a new will.

79 When Mr Foster told Mrs Meller that Mr Allen refused to release her will Mrs Meller told him that a copy could be found in a drawer in her home and explained where it was. Mrs Meller was angry that Mr Allen would not hand over a copy of her will and suggested that the Fosters find her another solicitor. The Fosters found the will and took it to Mrs Meller. Mr Foster said that on five or six separate occasions during visits with her, Mrs Meller told him of the changes she required. Under cross-examination Mr Foster said that these occasions were in January and February 2004.

80 Mr Foster deposed that he made notes of the instructions given by Mrs Meller. I was informed that those notes no longer exist. Mr Foster said that Mrs Meller asked him to "type out the new draft will exactly the same as her prior will because all the names and addresses were in place and there would be no mistakes". As he did not know any solicitors Mr Foster consulted Ms Borde who suggested Mr Zucco. They gave the draft will to Ms Borde.

81 Ms Borde deposed that she was informed by the Fosters that Mrs Meller wanted to change her will but told them that that was a matter for Mrs Meller and unless she was asked to do something about it she would not broach the subject. She said that sometime later, Mr Foster gave her a draft will that he had typed.

82 Ms Borde deposed that she gave the draft will to Mr Zucco who agreed to meet with Mrs Meller, but said that he would require a medical certificate to confirm her mental capacity to change her will before he would allow her to execute any new will.

83 Mr Zucco deposed that in either December 2003 or February 2004 he received a telephone call from an existing client, Ms Borde. He could not recall the date. It is more likely that he received the telephone call in February, after the draft had been prepared by Mr Foster. Mr Zucco had acted for Ms Borde on various commercial matters for about twelve years. Ms Borde told him of a close friend, someone she had known for many years, who wanted to update her will and a medical power of attorney, but did not want to use her former solicitor. Mr Zucco told Ms Borde that he would need to meet with Mrs Meller to obtain instructions. Ms Borde told Mr Zucco that Mrs Meller's previous will was with Phillips Fox. Mr Zucco asked for a copy prior to his meeting with Mrs Meller. Mr Zucco told Ms Borde that Mrs Meller would need to attend his office to provide instructions about her new will. He said that he would require a letter from Mrs Meller's general practitioner confirming that she was able to understand the general formalities of executing a will and that she had testamentary capacity to execute a will before he would attend upon her to execute any new will. Ms Borde told Mr Zucco that it would be difficult for Mrs Meller to attend his office because of her age and frailty and asked him whether it would be possible for him to meet with Mrs Meller at Darnlee. Mr Zucco agreed.

84 In early February 2004 Ms Borde gave Mr Zucco a draft of a document purporting to be the last will and testament of Mrs Meller. Ms Borde told Mr Zucco that she believed it represented the form of the last will and testament that Mrs Meller now wished to make. Mr Zucco arranged to have the document retyped in his office and, through Ms Borde, arranged to meet with Mrs Meller at Darnlee on 10 or 11 February 2004. The meeting took place at 1.15 pm on that day.

85 Having been introduced to Mrs Meller by Ms Borde Mr Zucco deposed,

... We chatted in general terms for a few minutes with general small talk. I recall asking Mrs Meller about Darnlee and she told me that she enjoyed being at Darnlee. I observed that Mrs Meller spoke slowly but appeared to be clearly understanding and following the conversation and answering appropriately.

After a few moments Mrs Meller indicated that she would like to go outside and I made the observation to her that it was a little cold but she seemed keen to catch some fresh air. We then went outside where there was a bench seat. Ricky pushed Mrs Meller's wheelchair and I then spoke to Ricky and said that I would need to speak to Mrs Meller alone and Ricky enquired as to how long I would be and I indicated I expected to be approximately an hour and Ricky said she would return in about an hour and then left.

I was not aware prior to meeting Mrs Meller of the exact nature and extent of her assets but was aware that she had real estate investments that Ricky was assisting her in managing them pursuant to the Administration/Guardianship order granted, which continued despite the VCAT proceedings.

I was then seated on the bench in the garden speaking directly with Mrs Meller alone, who remained seated in her wheelchair. Initially I spoke to her about general matters which I do not recall in detail and which I did not make any notes of. However I do recall that having observed her Austrian background I told her that although I had been to Europe I had not been to Austria and would love to go there. Mrs Meller told me that it had been a very long time since she had been to Austria. I then told Mrs Meller that I believed she had a previous will that solicitors Phillips Fox had drawn for her and she said words to the effect of "Yes that's right but I am not happy with them any more after that last bill they sent me". I did not ask her how long ago it was she received this bill or what it related to. However it was clear to me that she no longer wished to use that firm of solicitors. I also discussed the generalities of a Medical Power of Attorney.

I then directed my attention to the draft will that had previously been provided to me and began discussing each clause thereof with Mrs Meller. The notes that I made during my attendance upon Mrs Meller consisted of both some hand written amendments to the draft will together with handwritten notes I made on a pad noting some of the things we discussed.

As I read through each clause of the will Mrs Meller listened closely and as I paused after reading each clause she confirmed her agreement to each such provision. I noted that when discussing the provision of clause 4(e) of the draft, Mrs Meller told me that Ray Foster had full details about all her share portfolio as he assisted her in managing those investments. Ray and Julie Foster were at this time unknown to me.

During the course of discussing with Mrs Meller each of the clauses of her draft will, she also made specific comments to me about certain people referred to therein. For example, when discussing the gift of shares to Julie Foster, Mrs Meller told me that Ray and Julie Foster had provided much assistance to her for many many years and that she wanted to include both of them in her will. She told me that Julie Foster had been a life long friend who had cared for her and looked after her interests during her lifetime. At this stage I had not met either Ray or Julie Foster.

I made some notes about some, but not all of the comments that Mrs Meller made about some of the beneficiaries referred to in the draft will. When I subsequently re-engrossed the will, I relied upon both the notes I had made and my recollection of the discussion I had had with Mrs Meller when drafting the explanatory qualification to some of the gifts referred to in her last will.

As I had previously been informed by Ricky that Mrs Meller was a widow and did not have any children nor did she have surviving siblings, I assumed that the legacies specified in her draft will to persons with the surname Meller were gifts to her relatives and I was particularly careful to ensure that the provisions contained in her draft will were exactly what she wanted in relation to persons who I assumed must be her closest relatives.

Although I was not aware of the exact size and nature of Mrs Meller's estate, I inferred from the facts that she had both a share portfolio and real estate investments and from the comfortable style of accommodation she was living in the Darnlee Nursing Home in Toorak that her estate would not be insignificant. In that context I assumed that legacies in the order of $2,000 (as provided to many of the Meller relatives in her draft will) would be likely to represent only a gift of a very small part of her estate.

I specifically asked Mrs Meller in relation to each of the legacies provided to David Meller, Denise Meller, Stephen Meller, Paul Meller and Nicholas Meller whether she was sure that she only wanted to provide a legacy of $2,000 to each of those persons and she was quite adamant that this was the case and she informed me that those persons only visited her in Darnlee on rare occasions. I then suggested to Mrs Meller that it would be appropriate to include some brief reasons in relation to the gifts she was making to some of the persons in her will and she agreed that such explanation should be included and I noted this accordingly.

Mrs Meller explained to me that the reason that she wanted to provide a legacy of only $2000.00 to each of the persons referred to in sub-paragraphs 4.(f), (g), (h), (i) and (j) of the draft will was that they had failed to visit her regularly and when they did so, it was only for a short period and that she really did not want to give them any more than $2,000.00. Accordingly I made the note that the gifts in those clauses of the draft will were to be qualified with a statement that they were being limited to those amounts because those persons had only made irregular and small visits to her and it was her sincerest wish that such bequests be limited to that amount.

When I discussed with Mrs Meller the legacy contained in clause 4(k) of the draft will to Maria Vrzina of $60,000, Mrs Meller told me that such amount was too high and she wanted to reduce it to $20,000. She told me that unlike the Meller's, Maria Vrzina had been to visit her each Friday and Saturday and had provided enjoyment to her and she was thankful for that.

When discussing the legacy contained in clause 4(1) of the draft will to Jean Holt, Mrs Meller said that Jean Holt was another good friend who had made the effort to come and visit her and had provided company to her.

When discussing the gifts of residue to Ray Foster and Ricky Borde Mrs Meller explained to me that the reason why she wanted them to share in the residue of her estate. She said that Ray Foster had been very helpful to her and had done all of her books and had helped her with her money. She said that Ray used to help at house in the past and that he was a good friend who had assisted her many times in providing handyman services and company to her without charge during her lifetime.

Mrs Meller told me that Ricky sees her all the time and gives her care when no one's around. She said that Ricky was very helpful to her and that she helped her with her medication. She said that Ricky had been a true and sincere friend who had assisted her in resolving many problems and issues and had provided her with care and company.

When I reached the provision in the draft will containing the solicitors' charging clause Mrs Meller specifically asked me about how much it was going to cost for me to prepare the Will, a Medicial Power of Attorney and how much executor's commission would be. I explained all these cost issues to Mrs Meller and explained to her that it was up to her whether she wanted me to be a co-executor of her will. She replied that she did want me to be a co-executor in addition to Ray Foster and Ricky Borde and she said that her former solicitor had also previously indicated to her that it may be advisable for her to have a solicitor as executor or co-executor of her estate.

When dealing with the provision contained in clause 5 of the draft will that her ashes be forwarded to Wiener-Neustadt Cemetery, Wiener-Neustadt Austria where they were to be buried in accordance with the instructions of Peter Steyskal, Mrs Meller said that he knew what to do as he was a long time friend who lived in Austria and that he was aware of her wishes in this regard.

During this attendance I also informed Mrs Meller that I would need to see a letter from her doctor (general practitioner) confirming her current health and that she had the capacity to amend her will. I explained to Mrs Meller that the purpose of the doctor's letter was to ensure that any will she signed now would be held to be valid. Mrs Meller clearly understood and appreciated this and told me that she would get Ricky to help her organise such an appointment. She said that Ricky assisted her regularly and organised all of her medical appointments and needs and that Ricky attended upon her regularly.

Having spend approximately 45 minutes with Mrs Meller and noting how she was familiar with each of the persons referred to in her draft will and how she was able to provide comments about them to me, together with rational reasons for the provisions that she wanted to include in her draft will, I myself was confident that she had testamentary capacity. However, given her advanced age and the fact that I had not acted for her before, I still thought it prudent for a medical certificate to be obtained from her regular general practitioner.

During my attendance upon Mrs Meller I observed that she had thoroughly understood and followed the whole of our conversation and that subject to the amendments I had noted by way of explanations and variation to an amount that the contents of the draft will otherwise represented her direct instructions notwithstanding that the document had obviously originally been drawn by some other person. Accordingly, I was satisfied at the conclusion of my attendance upon her that I could properly prepare a will in accordance with that draft as I had noted and amended it.

86 Under cross-examination Mr Zucco conceded that the presentation to him of the draft document came as a surprise. He did not regard the document as one he could rely upon as constituting the instructions given by Mrs Meller. As a consequence, Mr Zucco said that he wanted to spend time with Mrs Meller and take instructions from her directly. As far as Mr Zucco was concerned he was preparing a new will. He was aware of a previous will but did not obtain a copy. In relation to the draft will, he said he made no assumption about where it came from. He said that he asked Ms Borde but her answer was not explored in cross-examination.

87 Mr Zucco assumed that the draft will had been prepared following discussion with Mrs Meller. He continued,

That's all I assumed, I didn't assume whether it was correct, because my intention was to directly see Mrs Meller to ensure that that is my understanding.

88 Mr Zucco said he was not concerned about the authorship of the document because he was going to satisfy himself about Mrs Meller's testamentary intentions. He said that he sat with Mrs Meller alone in the garden at Darnlee. She sat to his right on a bench and he read or paraphrased the clauses in the will to Mrs Meller. While the draft document was placed between them in a position where both could have read it, he could not say whether Mrs Meller in fact read the document as he was moving through it. He made notes as he did so. The duration of the discussion concerning the will took about forty minutes. There was also a discussion concerning the preparation of a medical power of attorney which took about five minutes.

89 Mr Zucco said that he discussed his appointment as an executor and explained to Mrs Meller his entitlement to a fee. He informed Mrs Meller that it was not necessary that he be made an executor. She responded by saying that she had her previous solicitor as an executor and thought it would be a good idea. During his conversation with Mrs Meller, he did not make any enquiries as to the extent of her estate. He said that he was already aware that there were two blocks of flats and a share portfolio. He asked about the share portfolio but was told that Mr Foster had all those details. Mr Zucco said that he formed the view during the course of his discussion with Mrs Meller that she understood that she had a sizeable estate. They discussed in general terms the two components of the estate, the real estate and share portfolio. Mr Zucco discussed the Fosters with Mrs Meller because they were significant beneficiaries under the proposed will. Mrs Meller told Mr Zucco that she had known the Fosters for a long time and that Mr Foster had been a help to her.

90 Mr Zucco said that he discussed the minor gifts with Mrs Meller including those to members of her family which, he said, were in his opinion small. He specifically enquired about those proposed gifts. He said,

I asked her specifically, "why are they only getting $2,000" and she said, in general terms, that she hardly sees them and they don't come to see her, those sorts of expressions, and I advised her that "we need to insert something so as to make sure that the will is valid". And she agreed and I...

91 Mr Zucco gave evidence that in order to satisfy himself of Mrs Meller's capacity to make a new will he engaged her in conversation about Darnlee and Austria. He said that this was "my lay person's attempt to see if she was coherent". Mr Zucco was asked,

Counsel: Are you saying that through the entire interview with Mrs Meller that she was concentrating and alert and focussed on everything that was being discussed between you two?

Counsel: What led you to be satisfied that she was alert and aware of the conversation?

Mr Zucco: A number of components. The first component was when we were inside and I asked her about Darnlee and she said she enjoys it. She liked it. Too, when we were outside I specifically made the effort to ask her about Austria. That was part of my again, lay person's test to see whether, with all due respect, Mrs Meller knew where she was.

92 The circumstances in which the draft will was prepared by Mr Foster is not explained by the plaintiff's evidence and not explored by the defendants. Had the defendants pressed their "undue influence" ground, initially raised but abandoned at trial, the evidentiary vacuum may have been filled with some details. In the absence of any such allegation, and having regard to Mr Zucco's evidence, the evidentiary vacuum diminished in importance.

93 I accept the evidence of Mr Zucco concerning his meeting with Mrs Meller on 10 or 11 February 2004. It was on that occasion that Mr Zucco took instructions for the 2004 will, using the draft prepared by Mr Foster as a template and aide mémoire. I also accept that on that occasion the instructions taken were detailed and ultimately reflected in the document prepared by him for execution by Mrs Meller.

94 Mr Zucco would not permit Mrs Meller to execute a new will without a medical opinion supporting her testamentary capacity. He conveyed that requirement to Ms Borde. He was ultimately provided with a note from Dr Szental dated 18 February 2004 in the following terms:

In my opinion Maria Meller is mentally capable of adjusting her will. I have discussed this with her at length today.

95 There was no contact between Mr Zucco and Dr Szental. It appears that Ms Borde discussed the requirement of a medical certificate with the Fosters who together took Mrs Meller to meet with Dr Szental for that purpose on 18 February 2004. Mr Foster deposed that Dr Szental spoke with Mrs Meller while Ms Borde and the Fosters remained in the consulting room, although the consultation and conversation took place between Mrs Meller and Dr Szental.

96 Dr Szental said that, whilst he could not recall, it was conceivable that everyone present in his consulting room was involved in a broad discussion concerning Mrs Meller's general health. Mr Foster had no recollection of saying anything at all when in the surgery, nor could he recall Mrs Foster saying anything.

97 Mrs Foster was cross-examined about the visit to Dr Szental's surgery. She recalled Mrs Meller talking very quietly with Dr Szental. She said she did not participate in any discussion with Dr Szental, nor did her husband or Ms Borde. They sat there in complete silence.

98 Mrs Meller had been Dr Szental's patient since 1982. She was well known to him. His practice was to visit her monthly when she was at Darnlee. I will deal in more detail with Dr Szental's evidence below. As to the consultation on 18 February 2004, Dr Szental deposed that he discussed with Mrs Meller her intention to change her will and had a general discussion with her about why she was unhappy with her current will and wished for it to be changed. He discussed the legal implications of making a new will. Dr Szental deposed that Mrs Meller appeared to clearly understand this although he does not explain how he reached that conclusion. In his evidence he confirmed his written opinion that Mrs Meller had the mental capacity to understand the nature and effect of the act of signing a will. He deposed,

Mrs Meller had the mental capacity to comprehend and understand what gifts she wanted to make to certain persons and the reasons for making those gifts and that she was mentally capable of making a rational determination as to which beneficiaries she wished to include in her will and to what extent.

99 In a supplementary affidavit sworn by Dr Szental he gave further evidence in relation to the consultation with Mrs Meller on 18 February 2004. He deposed that he had previously dealt with Ms Borde and was aware that she was a long time friend of Mrs Meller and was her enduring power of attorney. He said that Ms Borde and the Fosters remained present during his consultation with Mrs Meller but were some distance away from where he sat, next to Mrs Meller. Dr Szental said he was able to converse closely and directly with Mrs Meller and directed all his questions to her. When he did so she was unable to turn her head to look at any other person in the room. While he did not recall and did not record the matters discussed with her he did recall that the purpose of his examination was to form a view as to whether Mrs Meller was capable of altering her will. He deposed that it was his practice in such circumstances to question the patient closely as to why they wanted to change their will and generally establish that they understood what the effect of the changes were and that they had rational reasons for making such changes. He did not ask Mrs Meller about her assets as he did not believe that it was any of his business. He assumed that Mrs Meller was wealthy as she was able to afford full-time care prior to going to Darnlee. While Dr Szental did not recollect precisely the discussion he had or responses that Mrs Meller gave to him, he had no hesitation in concluding that Mrs Meller had rational and understandable reasons for changing her will. He concludes, although without explanation,

I was readily able to reach the conclusion that she understood what a will was and that it was her desire to change her will in the manner she had indicated to me.

100 At the time of the consultation it would appear that whatever passed between them, Mrs Meller did not inform him that the proposed changes to her will would result in significant benefits to Ms Borde and the Fosters who were present in Dr Szental's consulting room at the time. He did not think it was necessary to exclude Ms Borde or the Fosters from his discussion with Mrs Meller. He did not observe that Mrs Meller seemed anxious in their presence. Dr Szental deposed that in his discussions with Mrs Meller she was not prompted in any way by Ms Borde or the Fosters.

101 Dr Szental was cross-examined about the consultation on 18 February. He said that he did not carry out any formal examination but had a conversation with Mrs Meller and was satisfied that she explained to him fully why she was attending his surgery that day. He required her to describe in her own words why she was there.

102 Mr Zucco gave evidence that at some time prior to 27 February 2004 he was informed that Mrs Meller's doctor had provided a letter which confirmed that Mrs Meller had capacity to make a new will. He requested that the letter be made available to him on the day it was arranged for Mrs Meller to execute her will. He received and read the note from Dr Szental the day Mrs Meller came to his office in West Brunswick to execute her new will. She was accompanied by Ms Borde and the Fosters. Because Mrs Meller was in a wheelchair Mr Zucco met with her on the ground floor of the building in which his office is located. He arranged for two clerks from his office, Ms Jose Marchio and Ms Patricia Mastromanno, to attend as witnesses. He requested Ms Borde and the Fosters to leave the room prior to reviewing and discussing the will with Mrs Meller. He read through every clause of the will, highlighting the amendments he had made to the draft will which he had discussed with Mrs Meller on 10 or 11 February 2004. Mrs Meller signed the will in the company of Mr Zucco, Ms Marchio and Ms Mastromanno.

103 Mr Zucco deposed that Mrs Meller listened intently when he read through the will and occasionally interrupted him. In particular, she mentioned Maria Vrzina stating that she was only to get $20,000. Mr Zucco deposed that he confirmed that this is what the will provided. Mr Zucco deposed that Mrs Meller asked him about the costs of the will and the executor's commission and interrupted him when he read the clause providing gifts to Peter McCallum Institute and the Waisenhaus Old Peoples' Home in Vienna and the clause providing for the maintenance of the family grave. Mr Zucco deposed that Mrs Meller asked her questions slowly, giving him confidence that she was following all that he was saying and comprehending it.

104 The circumstances surrounding the execution of the 2004 Will are of particular relevance to the "knowledge and approval" ground advanced by the defendant. They also inform the question of Mrs Meller's testamentary capacity.

105 While it is true that the written opinion or certificate prepared by Dr Szental was brief and he did not undertake any formal testing of Mrs Meller, his evidence and opinion provide the best contemporaneous insight by a medical practitioner into Mrs Meller's testamentary capacity at the relevant times, namely, when providing instructions to Mr Zucco and when executing her will.

106 When Dr Szental first began treating Mrs Meller in 1982 she was widowed. Dr Szental was instrumental in having Mrs Meller admitted to the Alfred Hospital in late 2001. Whilst a general practitioner, Dr Szental said that 55% to 60% of his patients are geriatric. He was familiar with the Folstein Mini-Mental State Test which is conventionally administered by experienced mental health professionals to measure a person's cognition at the time of administration. He did not administer such a test to Mrs Meller when making his assessment during the consultation on 18 February 2004. His reasons for not doing so was that,

I'd known Mrs Meller for many years and I'd had frequent conversations with her over that period of time. And no, I didn't administer the Mini-Mental State because her description of why she was there and what she wanted to achieve was fairly clear.

107 Dr Szental deposed that he first visited Mrs Meller at Darnlee on 13 February 2002. That was shortly after her admission. He visited her regularly, about monthly. During her residency at Darnlee, Dr Szental noticed a slow and gradual decline in her mental ability. By reference to his notes Dr Szental deposed that staff at Darnlee reported to him on 4 January 2004 that Mrs Meller was experiencing increasing psychotic symptoms and he advised that she should resume taking antipsychotic medication. He deposed that Mrs Meller had been quite ill in October 2003 and had been on doses of various medications but these had been eased back. On 5 January 2004, Dr Szental visited Mrs Meller at Darnlee. She reported that she was seeing poltergeists at night and she exhibited signs of paranoia. She was suspicious of staff at Darnlee and was suspicious of medications that they were providing to her fearing that she was being poisoned. Dr Szental referred Mrs Meller to Dr Hyland, a psychiatrist, for further examination and diagnosis in relation to her psychotic symptoms.

108 Dr Szental deposed that he next saw Mrs Meller on 4 February 2004 at Darnlee. His notes reveal that Mrs Meller was "now on Avanza" which is a sedating antidepressant medication that had been prescribed to her by Dr Hyland. Dr Szental's observation of Mrs Meller at that time was that she was stable and that no further medication was required. His next consultation with Mrs Meller was on 18 February 2004.

109 Dr Szental next saw Mrs Meller on 2 March 2004 at which time he observed that she was mentally quite good, however, on 24 March 2004 he was called by Darnlee nursing staff because Mrs Meller was very agitated and paranoid about the night staff. He was informed by the Darnlee nursing staff that Mrs Meller was saying that the staff were trying to kill her. Dr Szental attended on Mrs Meller that day and discovered that she had a chronic urinary tract infection and was in pain. Dr Szental said that urinary tract infections often lead to confusion and cognitive decline in elderly people.

110 The defendants rely heavily upon the medical evidence given by the nurses employed at Darnlee, Ivan Hochberg, the social worker at the Alfred Hospital who made application to the Guardianship and Administration Board of the Victorian Civil and Administrative Tribunal in November 2001; Dr Forlano, Director of Neuropsychology at the Monash Medical Centre, who assessed Mrs Meller on 31 October 2001; Dr Sutcliffe, psychiatrist, who gave an opinion as to Mrs Meller's capacity to make the 2004 Will and Dr Hyland who attended on Mrs Meller at Darnlee on 16 January 2004, 23 January 2004 and 16 April 2004.

111 The defendants rely upon the fact that from time-to-time Mrs Meller was treated for psychotic episodes, paranoia, anxiety, depression and hallucinations and that as a consequence of her age and state of dementia suffered a loss of memory, disorientation as to time and place and was often confused. They submit that Mrs Meller did not have the mental capacity to make decisions as to the disposition of her estate based on rational considerations. They rely upon events, often described in progress notes made by nursing staff at Darnlee or a diagnosis by a medical practitioner, for the purpose of prescribing medication as well as lay-evidence of her failing memory and confusion.

112 Dr Forlano made an assessment of Mrs Meller on 31 October 2001. She deposed that Mrs Meller showed signs of significant memory difficulties and was unable to provide her with a medical or personal history. She lacked insight into her cognitive impairment. She was oriented as to place but not time. Her concentration skills were poor and she was easily distracted. She exhibited significant deficits in her executive and intellectual functions and significant comprehension difficulties. Dr Forlano concluded at that time that Mrs Meller had severe generalised cognitive impairment and was not competent to make decisions such as changing her power of attorney.

113 At the time of assessment by Dr Forlano, Mrs Meller was seriously ill. Dr Forlano said in her report that it was possible that Mrs Meller's condition would improve with an improvement in her medical condition, although given her age and her pre-existing Parkinson's disease and dementia she concluded that it was unlikely that any improvement would be considerable enough to enable Mrs Meller to make or amend any legal document.

114 Dr Forlano assessed Mrs Meller again on 9 November 2001. She noted that Mrs Meller continued to exhibit significant comprehension difficulties and was unable to provide details of the reason for her admission and the length of her stay. She was not oriented as to time and not adequately oriented as to space. For instance, she could not name the hospital or suburb but simply referred to "the city". Although her cognition had improved overall, her significant deficits remained, as well as her planning and organising difficulties. Consequently, Dr Forlano decided that Mrs Meller's capacity to make competent decisions was significantly reduced. Dr Forlano's reports formed the basis for Ivan Hochberg's application to the Guardianship and Administration Board of the Tribunal for the appointment of an administrator and a guardian. On 6 December 2001, the Tribunal appointed a guardian and permitted Ms Borde and Mrs Foster to remain Mrs Meller's attorneys.

115 While the assessment by Dr Forlano, the application of Ivan Hochberg to the Tribunal and the outcome of that application is important evidence of the frailty and decline of Mrs Meller, they are of limited assistance in relation to the question of her capacity at the time of giving instructions to make her new will and her knowledge and approval of the contents of the will at the time of execution.

116 Glen John Sutcliffe is a psychiatrist specialising in psychogeriatrics. At the time of giving his evidence he had approximately 24 years' experience as a psychiatrist and 22 years' experience in psychogeriatrics. Dr Sutcliffe first became acquainted with Mrs Meller when requested by Dr Szental to assess her in 2002. Dr Szental had expressed his concerns to Dr Sutcliffe about Mrs Meller's paranoia and hallucinations and Dr Sutcliffe attended on Mrs Meller at Darnlee on 9 August 2002. On that occasion Mrs Meller stated that she wished to return home and believed that there were poltergeists in league with the nurses. Dr Sutcliffe concluded that Mrs Meller suffered from mild cognitive deficits and had an organic delusional disorder. She lacked insight into her condition, both physically and mentally. As a result, Dr Sutcliffe prescribed Seroquel an antipsychotic tranquiliser, to treat her psychosis which included hallucinations and delusions. Dr Sutcliffe deposed that Seroquel would also assist Mrs Meller with her agitation and aggression and was also suitable for suffers of Parkinson's disease.

117 Dr Sutcliffe reviewed Mrs Meller's condition on 26 August 2002 noting that there was some improvement. She appeared less intensely delusional. He increased her dosage of Seroquel. He saw Mrs Meller again on 18 September 2002 and noted further improvement although she continued to speak of poltergeists. He last reviewed Mrs Meller on 21 October 2002 noting that she was much more settled although still slightly delusional. It was his opinion that it was unnecessary to review her again unless she became unsettled and intensely delusional.

118 Dr Sutcliffe was asked by the defendants' solicitors to provide an expert report as to the testamentary capacity of Mrs Meller. He had not attended on Mrs Meller or reviewed her condition since 21 October 2002. His instructions are found in a letter dated 6 October 2006. The opening paragraphs of the letter are as follows:

Thank you for your assistance so far in the preparation of the caveators' case in the Supreme Court proceeding in which they are contesting the application for probate of the will of Mrs Meller ("Mitzi") dated 27 February 2004.

In a proceeding like this, where the principal issue is the testamentary capacity of the testatrix at the time she gave instructions for the will and made the will, the Court examines the evidence as to her mental condition by the legal practitioners who acted on behalf of the testatrix, the lay people who knew and were involved with the testatrix and, if possible, the medical staff and medical practitioners who treated her. In some cases, a non-treating medical practitioner will give an opinion or "expert evidence" as to the testatrix's capacity based on the evidence of the persons already referred to and the relevant medical records.

In this case, I would like you to provide expert evidence as to the testamentary capacity of Mrs. Meller. You were a medical practitioner treating Mrs Meller in 2001 and 2002 but did not treat her subsequently. However, I understand that you have had considerable experience in giving expert evidence in relation to the issue of testamentary capacity and I wish to engage you as our expert witness in this proceeding.

119 After advising Dr Sutcliffe of the grounds of objection and the legal formulation of testamentary capacity, the letter called for his opinion as to Mrs Meller's testamentary capacity on 27 February 2004 and whether Mrs Meller knew and approved of the contents of the will. To assist Dr Sutcliffe in furnishing those opinions he was provided with some factual background said to constitute "suspicious circumstances" and a raft of materials comprising the Alfred Hospital medical records for the period 25 September 1995 to 16 January 2002, Darnlee medical records from 16 January 2002 to 13 July 2005 and the records of Dr Szental. Dr Sutcliffe was also provided with a copy of Mr Zucco's file in relation to the preparation of the will together with all of the defendants' affidavits sworn in 2006.

120 In my opinion the approach taken by the defendants in their request for an expert opinion from Dr Sutcliffe was misconceived. First, it is apparent that he had been engaged by the defendants to assist them in the preparation of their case prior to his engagement as an expert witness. Second, he was asked to express opinions which are in truth the ultimate issue for the determination by the court, involving questions of mixed fact and law. He was not confined to the expression of a medical opinion based upon his qualifications and experience as a medical practitioner and psychiatrist. Third, he was asked to express his opinions based upon an evidentiary foundation which was incomplete. He did not have available to him the plaintiff's evidence. In my opinion it was wholly inappropriate to engage Dr Sutcliffe to express an opinion as to Mrs Meller's testamentary capacity on 27 February 2004 and to expect him to express that opinion based upon only part of the evidence. The approach taken by the defendants to this evidence demonstrates a fundamental misunderstanding of the role of an expert witness. The position is not remedied by his adoption of the expert witness code of conduct.

121 Dr Sutcliffe prepared a report dated 9 November 2006. Because of the fundamentally flawed approach to his evidence in this regard, the report has little utility save insofar as it is qualified by the observation, obvious though it be, that the opinion of Dr Hyland who treated Mrs Meller at a time close to the date when the will was made would be important. Dr Sutcliffe concludes in his report,

... from what I know of Mrs Meller and the documents I have cited, there is a multitude of evidence of cognitive impairment particularly those who had day-to-day contact with her ie nursing staff. As such it would be my conclusion that it is very likely Mrs Meller did not have testamentary capacity at the time she signed the will in question ie 27th February 2004, as a result of preoccupation with delusions and hallucinations and cognitive impairment. However, it must be remembered that this is a clinical impression only based on many years of experience. No one including myself could be definitive about the matter unless undertaking the required assessment.

122 I do not regard this tentative expression of opinion as useful. That is not to say that I disregard the evidence given by Dr Sutcliffe. He provided useful observations concerning the cognitive ability of Mrs Meller at the time of his assessments and during his further examination and cross-examination, provided some insight into the significance of temporal observations made by others, including nursing staff. For example, Dr Sutcliffe described the Folstein Mini-Mental State test and its utility as a measure of cognitive function. Dr Sutcliffe said that when he examined Mrs Meller in 2002 it was his opinion that she had a mild degree of dementia. When asked to review the medical records provided to him and express an opinion from that material as to the stage of dementia that Mrs Meller had reached in January and February 2004, Dr Sutcliffe responded by saying,

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