Plaintiffs v First Defendant

3 The plaintiffs in this proceeding are the executors to 2008 Will, namely Geraldine Le Bon, Walter Rapoport and Michael Kraus. They issued an originating motion for grant of probate on 17 November 2011. That application is opposed by Mrs Lili, the first defendant. The second defendant is the Attorney-General of the State of Victoria, joined for the purposes of representing the charitable interests under the 2008 Will. He has elected to take no part in this proceeding and to abide by any order of the Court.

4 For reasons that follow, I refuse the grant of probate.**

**5 Mrs Lane was born on 4 April 1914. She was a Holocaust survivor who came to Australia from Poland after the Second World War. Her husband, Martin Lane, predeceased her and they had no children.

6 Mr Rapoport was a friend of Mrs Lane. His parents were close friends with Benno Feuer and his wife, Branislawa Feuer, Mrs Lane's brother and sister-in-law respectively. Although Mr Rapoport only met Mrs Lane in the middle of 2005, he was greatly involved in her care from that time on.

7 Mrs Le Bon was a niece of Mrs Lane. She is the daughter of Branislawa Feuer's sister, Frederyka Cassidy. Like Mr Rapoport, she was greatly involved in the care of Mrs Lane as her health deteriorated.

8 Mr Kraus was the solicitor engaged by Mrs Lane to prepare her Will and powers of attorney. He was referred to her by Bronislawa Feuer in June 2005.

9 Mrs Lili, whom I will refer to as 'the defendant', was the younger sister of Mrs Lane. She is 93 years old and resides in the United States of America.

10 Each of the plaintiffs provided evidence in the form of affidavits and each was cross-examined. Mrs Lili, herself elderly, in poor health and a resident of the United States, provided evidence by affidavit. She was not required to attend for cross examination.**

**11 Instructions were given to Mr Kraus to prepare the 2008 Will in a conference at his office on 12 September 2008 attended by Mrs Lane, Mr Rapoport and Mrs Le Bon. But due to circumstances described in greater detail below, the Mrs Lane did not execute the Will until 3 November 2008, some 7 weeks later.

• $10,000 to the Women's International Zionist Organisation;

• $10,000 to Keren Kayemeth Le Israel (also known as the Jewish National Fund);

• $100,000 to Genia Motola (Mrs Lane's cousin) and Jack Motola (Genia's husband);

• $2,000 to each of the five children of Kevin Milstein (Mrs Lane's nephew); and

13 After those legacies, under the 2008 Will the residue of Mrs Lane's estate was bequeathed to :**

such educational institutions or schools as my Trustees in their absolute discretion think fit in such shares and in such manner as they in their absolute discretion think fit provided that my Trustees should ensure that both my late husband's and my name be memorialised in a suitable fashion.

14 As stated above, Mrs Le Bon, Mr Rapoport and Mr Kraus were appointed as executors to the 2008 Will.

15 The October 2005 Will gave legacies of $5,000 to the Women's International Zionist Organisation and $100,000 to Mr and Mrs Motola. The residue of Mrs Lane's estate was bequeathed to Mrs Lili. Mrs Lane appointed Mr and Mrs Feuer as well as Mr Rapoport and Mr Kraus as executors. It is common ground that Mrs Lane had testamentary capacity in respect of the October 2005 Will.

16 The meaning of testamentary capacity was conveniently summarised by Ashley J in Norris v Tuppen[1] at [330]:

1. be aware of and appreciate the significance of the act which she is embarking upon;
2. be aware in general terms of character, extent, and value of the estate with which she is dealing;
3. be aware of those who might reasonably be thought to have claims upon her bounty; and the basis for and nature of those claims;
4. have the ability to evaluate and discriminate between the respective strengths of those claims.

**17 It is for the propounders to prove that a testatrix had testamentary capacity.[2] This matter is to be proved on the balance of probabilities, however the Court must apply this standard with what Courts have termed a 'vigilant examination of the whole of the evidence'.[3]

18 The plaintiffs conceded that it was probable Mrs Lane did not have 'full' testamentary capacity on 3 November 2008, the date she signed the will. However they submitted that in this case, it would suffice if the Court found that Mrs Lane had testamentary capacity when instructions were given for her final Will on 12 September 2008. The plaintiffs contended that the evidence would enable the court to conclude that Mrs Lane met the test in Norris v Tuppen when she gave her instructions on 12 September, and that she at least understood, on 3 November 2008, that she was being presented for her signature with a will that had been prepared to give effect to her intention. If the court was so satisfied, the plaintiffs argued that the will had been proved.

19 In substance, the parties disagreed on the content of what must be established at the moment of execution of the will even if it could be established that the testatrix had testamentary capacity on the occasion that instructions were given for its preparation. Although the defendant generally agreed that the required proof of capacity at the date of execution might be less than that required at the date of giving final instructions, she submitted that it would still be necessary for the Court to find that Mrs Lane knew and approved of the contents of the will on the day it was signed.

20 In In the Estate of Wallace, decd; Solicitor of the Duchy of Cornwall v Batten[4] Devlin J said at 930:**

The defendants therefore rely on the principal which according to the authorities has been well established that if a testator gives instructions for a will to be drawn and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved of the contents of the will provided that the circumstances were such as would enable the Court to say that he knew the will had been drawn according to his instructions.

I can deal with the principle quite shortly because the essential part of it so far as I am concerned has been summarized by Lord Macnaghten in giving the judgment of the Privy Council in Pereira v Pereira [1901] AC 345 at 361. In the relevant passage Lord Macnaghten approved the rule as laid down by Sir James Hannen in Parker v Felgate (1883) 8 P D 171 in the following terms:

If a person has given instructions to a solicitor to make a will and the solicitor prepares it in accordance with those instructions all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out.

21 The rule in Parker v Felgate was the subject of recent specific challenge in the Court of Appeal of England and Wales in Perrins v Holland.[5] In a judgment by the Chancellor (Moore-Bick LJ and Jackson LJ agreeing) the origins of the rule were carefully traced. A succinct expression of the rule was cited from Theobold on Wills 3rd Ed. 1885 in these terms:

But a will prepared in accordance with the testator's instructions is valid, though at the time of execution the testator remembers only that he has given instructions and believes the will to be in accordance with them.

22 The Court of Appeal observed that, since Pereira v Pereira the principles in Parker v Felgate had been -

...applied without comment in Kenny v Wilson (1911) 11 State Reporter (NSW) 460; Thomas v Jones [1928] P. 162, 163; Battan Singh v Amirchand [1948] AC 161; Re the Estate of Wallace [1952] 2 TLR 925; Re Flynn [1982] 1 WLR 310, 320 and Clancy v Clancy [2003] WTLR 1097. In two of them, Re the Estate of Wallace and Re Flynn, the principles of Parker v Felgate were applied in relation to the separate requirement of knowledge and approval.[6]

23 After rejecting the proposition that the law requires both testamentary capacity and due execution to co-exist at the same time, the Chancellor continued:

What is required is due execution of a will which the court can be satisfied expressed the wishes of a testator at a time when he did have full testamentary capacity and has not been subsequently revoked. The reasons lie, I believe, in the freedom of testamentary disposition which the law favours, as explained by the court in Banks v Goodfellow, the usual preference of the court, if reasonably possible, to uphold transactions (cf in the context of the interpretation of contracts the maxim res magis valeat quam pereat) and the pragmatic recognition in that context that the testator has no further opportunity to give expression to his wishes. Whatever the reason, the decision of the Privy Council in Pereira v Pereira is strong persuasive authority for upholding the decision in Parker v Felgate. Further the decisions to which I have referred demonstrate a proposition of some antiquity acted on for over 250 years.[7]

**24 In my view, I should follow and apply the principles of Norris v Tuppen and Parker v Felgate. Adapting those principles to the present case, in order to find the Will proved I need to be satisfied that:

• first, on 12 September 2008, Mrs Lane was aware of and appreciated the significance of giving instructions for the preparation of her Will; was aware, in general terms of the character, extent and value of her estate; was also aware of those with a claim on her bounty and the basis and nature of those claims; and, finally, had the ability to evaluate and discriminate between the respective strengths of those claims;

• second, that the will presented to Mrs Lane on 3 November 2008 faithfully reflected the instructions given to Mr Kraus on 12 September 2008; and

• third, on 3 November 2008, she was able to understand, and believed, that she was signing a will that had been prepared by Mr Kraus to make disposition of her property in accordance with instructions given by her on an earlier occasion.

25 I turn to evaluate the evidence in the light of these principles.**

Medical Evidence as to Mrs Lane's Testamentary Capacity in 2008

**26 In a case such as this, medical evidence as to testamentary capacity would usually be of central importance and so I will deal with the medical evidence provided to the Court first. Two affidavits from medical practitioners were provided, sworn by Dr Inessa Stinerman (Mrs Lane's treating general practitioner) and Dr Harold Hecht (a consultant psychogeriatrician) respectively. Neither doctor was able to provide a concluded view as to Mrs Lane's testamentary capacity in 2008. As such it was conceded by all parties that the medical evidence was of only limited usefulness and neither of the doctors was called to give evidence or be cross-examined.

27 Dr Stinerman wrote a report addressed to Mr Kraus dated 15 December 2008 (a month after the execution of the 2008 Will) following her general review of Mrs Lane that day. There was no evidence that she had seen Mrs Lane in September or November 2008. In her report, Dr Stinerman confirmed that Mrs Lane had previously been diagnosed with dementia. Dr Stinerman stated that Mrs Lane had been tested using the 'Mini Mental State Examination' in 2006, 2007 and 15 December 2008 receiving scores of 19/30, 16/30 and 10/30 respectively. Dr Stinerman said, 'Of particular concern was Klara's poor testing of orientation and calculation. Klara could not tell me what the year was, and told me we were in Poland.'

28 Ultimately, Dr Stinerman was reluctant to provide an opinion as to testamentary capacity in her report, saying:**

I don't feel that I am sufficiently qualified to give an opinion as to Klara's capacity to execute a will, given that she does have significant cognitive decline and, specifically performs poorly on testing of orientation to place, time and person.

If I had to give an opinion, I would say that Klara does not have sufficient mental capacity to execute a will. However, it is possible that Klara has had a further cognitive decline due to an organic cause.

**30 Dr Stinerman ended her report by saying she would defer giving an opinion to a specialist and she referred Mr Kraus to Dr Hecht, a consultant psychogeriatrician who had examined Mrs Lane on several occasions in 2006 and 2007.

31 Dr Hecht prepared a report dated 18 November 2011. In his report, Dr Hecht noted that he had examined Mrs Lane in June 2006 and November 2007. He said that in 2006 'she showed evidence of dementia and emotional lability'. He said that Mrs Lane's 'Mini Mental State Examination' scores in 2006 and 2007 (see paragraph 27 above) demonstrated some cognitive deterioration. He noted that on neither occasion had an assessment of testamentary capacity been carried out.

32 Dr Hecht said that he was not able to make any comment as to Mrs Lane's testamentary capacity in 2008 but stated that 'her level of dementia would in all probability have deteriorated further given her previous loss of cognitive function between June 2006 and November 2007'.

33 Neither doctor's opinion provides positive support for a conclusion that Mrs Lane had testamentary capacity in either September or November 2008, although neither entirely negates such a conclusion. It is clear that Mrs Lane suffered from dementia since 2006 and had experienced cognitive decline since. Only a month after the will was signed, Dr Stinerman's best estimate was that Mrs Lane did not then have testamentary capacity, although the doctor conceded that there may have been some further decline over recent months making it difficult to express a view about her capacity a month or so earlier.

34 I was not provided with any evidence to enable me to interpret the significance, if any, of the various mini mental state examination scores with respect to the question of Mrs Lane's testamentary capacity.**

Evidence of Mr Kraus - Circumstances Surrounding and Leading up to the October 2005 and 2008 Wills

**35 In his affidavit dated 28 February 2012, Mr Kraus detailed meetings and discussions in relation to the preparation and execution of the October 2005 and the 2008 Wills. As Mrs Lane's solicitor, Mr Kraus had kept detailed notes of his interactions in relation to the preparation of the Wills. Neither the affidavit of Mr Rapoport nor that of Mrs Le Bon provided any further specific detail of these events, nor was Mr Kraus' evidence contradicted by any evidence led by Mrs Lili.

36 Given the ambivalence of the medical evidence and the significant differences between the 2008 Will and the October 2005 Will, it is necessary to examine in some detail the sequence of events leading to the execution of the Wills.**

**37 In 2005, Mrs Lane executed a Will in August 2005 and a further Will in October 2005.

38 In June 2005, Mr Kraus met Mrs Lane at her home in Toorak and took instructions to prepare for a will. At the time, Mrs Lane was suffering from bad health and was subsequently admitted to Cabrini Hospital for surgery.

39 On 7 August 2005, Mr Kraus attended Cabrini where Mrs Lane executed the Will he had prepared. The August 2005 Will gave the same legacies as the October 2005 Will (set out at paragraph 15 above) except that under the August 2005 Will, Mrs Lane had only appointed her brother and sister-in-law, Mr and Mrs Feuer as executors.

40 In August, Mrs Lane was discharged from Cabrini and she went on to stay at a residential care facility called Sheridan Hall.

41 On 9 October 2005, both Mr Kraus and Mr Rapoport attended upon Mrs Lane at Sheridan Hall. Mrs Lane provided instructions that she wished to alter her Will by having Mr Rapoport replace Mr Feuer as an executor of her Will as she was concerned about the ability of her brother to administer her estate, given his health and age. These instructions formed the basis of the Will executed on 16 October 2005.

42 As stated above, the October 2005 Will appointed Mr and Mrs Feuer, Mr Rapoport and Mr Kraus as executors. Mr Feuer predeceased his sister and Mrs Feuer has chosen to take no part in these proceedings.**

**43 On 17 October 2007 Mrs Le Bon attended Mr Kraus' office where Mrs Le Bon passed on instructions that Mrs Lane was considering changing her bequest to Mrs Lili in the October 2005 Will.

44 On 5 November 2007, Mrs Lane attended Mr Kraus' office with Mrs Le Bon and Mr Rapoport. Mrs Lane said that she intended to change her Will but that she was still giving consideration to the matter.

45 On 4 December 2007, Mrs Lane attended Mr Kraus' office with Mrs Le Bon. Mrs Lane gave instructions for the preparation of a new Will. Mrs Le Bon provided a handwritten note detailing changes to the Will. Mr Kraus read the changes back to Mrs Lane. He noted that the bequest to Mrs Lili was reduced to $250,000 and asked for the reason for the change. Mr Kraus' recollection was that Mrs Lane said something to the effect of, 'Roney Lili is cold to me, and treats me like stone.'

46 The note provided on 4 December 2007 set out the following legacies:

• $5,000 to the Women's International Zionist Organisation;

47 Mr Kraus' assessment of Mrs Lane on 4 December 2007 was that she understood each change to the Will and was 'happy with the changed gift' but also 'seemed a little confused'. Following this meeting, Mr Kraus sent a letter dated 12 December 2007 to Mrs Lane enclosing a draft Will and recommending:**

If there is any doubt as to your capacity to execute the documentation or if you envisage any dispute, we recommend that you obtain a medical report or certificate from your treating doctor evidencing such capacity.

**48 In cross-examination, Mr Kraus agreed that he had given this advice due to his own concern as to whether Mrs Lane had testamentary capacity at that point in time.

49 The draft Will sent on 12 December 2007 was never executed and Mr Kraus did not see Mrs Lane again until 12 September 2008, although, as Mr Kraus said in cross-examination, he received a number of phone calls from Mr Rapoport and Mrs Le Bon in relation to this matter.

50 On 12 September 2008, Mrs Lane attended Mr Kraus' office with Mr Rapoport and Mrs Le Bon who gave the instructions, on Mrs Lane's behalf, as to changes to the Will. Mr Kraus said that Mr Rapoport and Mrs Le Bon spoke in the presence of Mrs Lane who was able to hear everything they said to him. Mrs Lane then told Mr Kraus that she agreed with the instructions given and that they were her own wishes.

• the executors were to be Mr Rapoport, Mrs Le Bon and Mr Kraus;

• the pecuniary legacies were to be changed to those set out in paragraph 12 above;

• the residue of the estate was to be given to educational charities.

52 Mr Kraus said that although Mrs Lane did not say very much at this meeting, she indicated her approval of the discussions and the new bequests. He formed the view that Mrs Lane recognised the name of each beneficiary as they were mentioned and that she agreed with what Mr Rapoport and Mrs Le Bon said about each bequest.

53 Mr Kraus recounted inquiring about the reason for reducing the earlier bequest to Mrs Lili. Mr Rapoport and Mrs Le Bon told him that there had been little contact between Mrs Lane and Mrs Lili and that Mrs Lili's two daughters were both wealthy. Further, he recalled that Mrs Lane 'clearly communicate[d] to me that she was angry with her sister ... because she was not displaying sufficient interest in her welfare'.

54 Mr Kraus also wrote in his notes of the meeting that Mrs Lane was 'not clear' and that he was 'not sure she has test[amentary] capacity'.

55 Mr Kraus then sent a letter to Mrs Lane dated 15 September 2008, enclosing a draft will and advising:**

We note that we have had numerous discussions conferences with you regarding your Will since October 2007. Due to your age and present medical condition, we strongly urge you to finalise this matter as soon as possible.

Please provide our office with current contact details for your medical practitioner so we may obtain confirmation of your testamentary capacity.

**56 During October 2008, Mr Kraus had discussions with Mr Rapoport and Mrs Le Bon in order to make arrangements to have the new Will executed. On 31 October 2008, Mr Kraus called Dr Stinerman, in order to obtain information about her testamentary capacity, however he was unable to speak to her at that time.

57 On 2 November 2008, Mr Kraus attended Mrs Lane at her dementia care unit, Amity. She recognised him as her solicitor. He read aloud a summary of the Will and formed the impression that Mrs Lane recognised the names but that her understanding of the new Will was 'rather vague'. He found her 'confused and forgetful'. After he had finished reading the summary of the new Will which included the legacy of $1,000,000 to Mrs Lili, Mrs Lane said, 'What about my sister?'. In cross-examination, Mr Kraus explained further about Mrs Lane's understanding of bequests, 'It seemed to me at the time she understood it and then she'd forget it.'

58 After Mr Kraus had explained the gift to her sister, Mrs Lane told Mr Kraus that she was satisfied with the Will and was ready to sign it. Mr Kraus said in evidence he was not sure that Mrs Lane knew what she was about to sign. His handwritten note made at the time recorded his view this way, 'I'm not sure if she understands what [or why] she is signing but happy to sign'. However, 'on the basis that she probably did [understand]', he went looking for two persons who could witness Mrs Lane's signature, unsuccessfully as it turned out. In cross-examination, he explained that although he found one nurse who was willing to witness the signature; the other nurse he found was unwilling as she said that Mrs Lane had dementia. Mr Kraus said that he did not sign himself as it was not his practice to do so where he was an executor. Accordingly, the Will was not signed on that day.

59 On 3 November 2008, in the afternoon, Mr Kraus spoke to Dr Stinerman who told him that Mrs Lane had dementia and may not have testamentary capacity although a report from Mrs Lane's psychogeriatrician ought to be obtained to confirm this. Later that day, Mr Kraus attended Amity with Mr Rapoport, Mrs Le Bon and her friend Carolyn Bruce. He was told by them that although Mrs Lane 'had her ups and downs', the terms of that new Will had been discussed numerous times and that they were confident that it represented Mrs Lane's current and considered wishes.

60 On this occasion, Mrs Lane did not recognise Mr Kraus and she asked Mr Rapoport and Mrs Le Bon who he was. When they explained who he was, Mrs Lane 'appeared' to recognise him. Mr Kraus went on to explain that he had brought her Will for the purpose of having it signed by her, which she 'appeared' to understand. Mr Kraus also said that, Mrs Lane appeared to be tired.

61 Mr Kraus did not read or summarise the Will to Mrs Lane. It was then signed by Mrs Lane and witnessed by Mr Rapoport and Carolyn Bruce, as Mr Kraus was unable to find independent witnesses.

62 After the Will had been signed, Mr Kraus spoke to Mrs Lane in private. Mr Kraus found it difficult to have a conversation with her. His handwritten note records, 'Difficult to have a rational conversation with her'. She appeared to recognise all the names in the Will but it was not clear that she understood the distribution of her estate or the extent of her assets. During their conversation, Mrs Lane said, 'I have a few hundred dollars,', 'I am not rich,' and 'I give presents.'

63 By affidavit, Mrs Le Bon, Mr Rapoport and Mrs Lili each described their respective relationships with Mrs Lane, particularly in the period from 2005 to her death in 2011.**

**64 Mrs Le Bon and Mr Rapoport each said that they were close to Mrs Lane - Mrs Le Bon as the niece who had known Mrs Le Bon her entire life and Mr Rapoport as a 'de facto minder' who became a 'confidant and friend'. Both Mrs Le Bon and Mr Rapoport said that they had been discussing changes to the final Will with Mrs Lane for many months before its execution.

65 Further, they both describe the two main factors behind the changes to the Will as being that:

• Mrs Lane was benefactor to a number of charities, largely Jewish organisations. She was passionate about Jewish education. She wished to have a tangible reminder of her and her husband's existence in Melbourne, by providing a substantial part of her estate to Jewish educational institutions. In Mrs Le Bon's words, Mrs Lane was 'vain'.

• Mrs Lane wanted to make substantial provision for Mrs Lili but she was disinclined to make gifts to Mrs Lili's daughters. She was irritated by her American nieces who, she felt, had little concern for her brother's and her health and well being.

66 They both said that although at times Mrs Lane did appear confused, incoherent or compromised to casual observers, lawyers or doctors, to those with whom she was closest she was 'alert, focused' (in Mrs Le Bon's words) and 'expressive [and] capable of understanding what was said to her' (in Mr Rapoport's words). Mr Rapoport recalled Mrs Le Bon being examined by Dr Hecht (although it is unclear whether this was 2006 or 2007) and he said that Mrs Lane's answers were uncharacteristically vague and imprecise during that examination.

67 Mrs Le Bon and Mr Rapoport both were confident that the 2008 Will represented Mrs Lane's wishes which she had communicated to them over the previous months. Although each of them expressed that confidence, neither gave specific evidence of what occurred on the occasion of the signing of the Will on 3 November 2008.**

**68 Mrs Lili had been separated from her sister since the Second War War, although they had each visited the other several times. She recalled that Mrs Lane had said on a number of occasions, when they were together or speaking on the telephone, things such as 'everything goes to you my sister'.

69 Mrs Lili said that the last clear consistent conversation she had with Mrs Lane was before her surgery in 2005. Mrs Lili described that since that time, she had difficulty getting in touch with Mrs Lane and, when they did speak, Mrs Lane's conversations were vague. Mrs Lili said that her sister was unable to give detail about where she was and to understand the importance of family members she was being told about.

70 Mrs Lili said that she believes that from 2006 to 2007, Mrs Lane was in mental decline and was displaying significant signs of dementia - she appeared to have forgotten that her brother had passed away, that Mrs Lili was younger than her or who other family members were. Mrs Lili said that this was completely out of character for the sister she knew.

71 Finally, Mrs Lili said that as far as she was able to establish by speaking to Mrs Lane, there were no feeling of ill will, resentment or animosity between them.**

Did Mrs Lane have the requisite testamentary capacity on 12 September 2008?

**72 Following argument from the parties, it appears that the controversial aspects of testamentary capacity in this case are those inherent in questions three and four of Ashley J's summary in Norris v Tuppen set out at paragraph 16 above. That is, was Mrs Lane able to discern who might have claims to her estate (and the nature of such claims) and was she able to discriminate between those claims as at 12 September 2008?

73 As conceded by the plaintiffs, on the medical evidence and the evidence of Mr Kraus alone, there would be a slim basis for finding a prima facie case that Mrs Lane had testamentary capacity on 12 September 2008.

74 As discussed earlier, the medical evidence is, at best, ambivalent and in any case does not speak specifically to Mrs Lane's mental state on 12 September 2008.

75 Mr Kraus was of the opinion that on 12 September 2008, Mrs Lane did understand and approve of each bequest as they were read back to her. He also recalled Mrs Lane explaining her reasons in relation to the reduced gift to Mrs Lili. Although Mr Kraus may have been displaying the customary caution of a solicitor in his concern about Mrs Lane's capacity, nevertheless he expressed doubts as to Mrs Lane's capacity at that time.

76 The plaintiffs rely on the evidence of Mrs Le Bon and Mr Rapoport to 'tilt the scales' in their favour. They said that Mrs Lane had been considering changes to her Will since at least 2007. As Mr Kraus said, in December 2007, a draft Will was prepared which was never executed. Although that particular draft has substantial differences to the 2008 Will (for example, it does not bequeath the residue of the estate to charitable causes), it also bears significant similarities (it leaves a reduced legacy to Mrs Lili ($250,000) and contains legacies to a number of the same beneficiaries as the 2008 Will).

77 In my view, the draft 2007 Will can be viewed as a step in an incremental but coherent change in thought between the October 2005 Will and the 2008 Will. Put another way, the draft 2007 Will provides an explanatory context for the significant differences between the October 2005 and 2008 Wills. The discernible process of change lends some corroborative support for the conclusion that the instructions given to Mr Kraus in Mrs Lane's presence on 12 September 2008 represented the culmination of her specific testamentary intentions at that date.

78 Mrs Le Bon and Mr Rapoport attested to the reasons that drove Mrs Lane to change her Will: her disaffection with Mrs Lili's daughters on one hand (tempered by a wish to provide for Mrs Lili) and her passion for Jewish education coupled with her desire for the Lane name to be memorialised in some way, on the other. That Mrs Lili was not cognisant of her sister's thinking in this regard is not surprising in the circumstances. They had not been in close contact for some time and Mrs Lane may not have been inclined to discuss her feelings about her nieces to her sister.

79 Having seen the cross-examination of Mrs Le Bon and Mr Rapoport, I accept that they were both people who were devoted to the care of Mrs Lane for some period of time and are genuinely concerned to give effect to her true intentions. Both Mrs Le Bon and Mr Rapoport said that Mrs Lane was able to be clear and expressive to them, even if she did not appear to be so to those she was not close to. I also accept their evidence in this regard.

80 Neither Mrs Le Bon or Mr Rapoport appeared to have been driven by any self-interest in their involvement in the preparation of the 2008 Will. In cross-examination, Mrs Le Bon denied that she had any special interest in Jewish education. This question was not put to Mr Rapoport. Mr Rapoport said Mrs Lane offered him a bequest of money but he declined. Mrs Le Bon is also a beneficiary under the 2008 Will, but I note that the gift of $100,000 appeared in the draft 2007 Will, so it could not be said to be a last minute change. Moreover, it was never put to Mrs Le Bon in cross-examination that she was motivated by self-interest.

81 Ultimately, I accept the evidence of Mrs Le Bon and Mr Rapoport that Mrs Lane conveyed to them, over time, her wishes in relation to the distribution of her estate and that these instructions were encapsulated in the instructions given to Mr Kraus on 12 September 2008.

82 This finding, of itself, still leaves open the question of what Mrs Lane's mental state was on 12 September 2008. Did she have the necessary awareness of the claims on her bounty and the ability to discriminate between them?

83 The existence and content of the draft 2007 Will demonstrates that Mrs Lane was engaged in a process of consideration and refinement of her Will over a period of many months. Her reasons, enduring over a period of time, for effecting that change point to a coherent basis, and thus a capacity, to discern differing claims and discriminate between them. That the process of conveying instructions to her confidants in Mrs Le Bon and Mr Rapoport was long and sustained also lends weight to the inference that Mrs Lane had testamentary capacity at the time that her instructions were conveyed to Mr Kraus.

84 Mrs Le Bon and Mr Rapoport both expressed considerable confidence, based upon their long experience and knowledge of Mrs Lane, that on the day instructions were given to Mr Kraus Mrs Lane well understood to whom she was giving her estate, in what amounts, and why. The fact that instructions were primarily conveyed by Mrs Le Bon and Mr Rapoport, and not Mrs Lane herself, does not if itself cause me undue concern. In such matters, elderly people may be more comfortable having their wishes explained by a trusted confidant especially if they feel they will not be able to express themselves succinctly or might even be embarrassed.

85 This is a finely balanced issue. However, and not without some hesitation, having considered all of the evidence, I find that Mrs Lane did have the requisite testamentary capacity on 12 September 2008 and knew and approved of the contents of the instructions that were conveyed, on her behalf, to Mr Kraus.

86 Accepting that the instructions given to Mr Kraus on 12 September 2008 did represent the instructions of Mrs Lane on that day, and that Mrs Lane had testamentary capacity to give those instructions, I also accept that the Will prepared by Mr Kraus and presented to Mrs Lane on 3 November 2008 faithfully reflected those instructions. Indeed there was no suggestion to the contrary.

87 Accordingly that leaves for decision whether on 3 November 2008 Mrs Lane had the requisite understanding as described in Parker v Felgate.**

On 3 November 2008 did Mrs Lane understand, and believe, that she was signing a will that had been prepared by Mr Kraus in accordance with her instructions?

**88 One begins with the proposition that Mrs Lane had been suffering from diagnosed dementia for at least two years before 3 November 2008. On that day she was housed in a dementia unit and not well enough to attend the solicitor's office. It was clear that there had been a marked decline in her condition since 12 September. A month later her general practitioner, if pressed, would say she did not have testamentary capacity.

• On 2 November Mr Kraus had thought Mrs Lane to be confused, vague and forgetful;

• He had not been able to obtain a second willing nurse at the dementia facility to witness the will;

• On 3 November Mrs Lane had not recognised Mr Kraus has her solicitor until it was explained to her at which point I have only Mr Kraus's opinion that Mrs Lane 'appeared' to recognise him;

• After he explained what he was there to do Mr Kraus said only that Mrs Lane 'appeared' to understand: nothing was said by Mrs Lane to signify that understanding;

• Mr Kraus noted it was difficult to have a rational conversation with her;

• Neither Mr Rapoport nor Mrs Le Bon gave evidence about Mrs Lane's condition on that day, or what occurred, and Carolyn Bruce was not called to give any evidence.

90 Despite the fact that the test of Mrs Lane's capacity at the point of execution of the Will is, in the circumstances, limited to whether she understood and believed she was signing a will prepared on her instructions, I find myself quite unable to reach that level of satisfaction. Not only is there an absence of affirmative evidence to suggest that she did have the requisite understanding, the objective circumstances point in the opposite direction.

91 It follows from this conclusion that the Will has not been proved and application for grant of probate must be refused.

92 I stress that none of my findings imply any criticism of any of the plaintiffs. I accept each of them unreservedly as witnesses of truth who each did their best to carry out Mrs Lane's wishes. Assuming, if legally capable of doing so, Mrs Lane would have wished to validly execute the Will as presented to her on 3 November, the passage of time and the steady march of her condition conspired to thwart that wish.

93 For completeness I will briefly deal with some further matters raised in argument on behalf of Mrs Lili.**

94 In oral submissions, the defendant raised a caution in this case, referring to the doctrine of 'suspicious circumstances'. This principle was described by Tadgell JA in McKinnon v Voigt[8] at [20]:

... where there is cast upon a propounded Will a well founded suspicion that it might not represent the mind and will of the person whose will it is represented to be, no grant will be made before the circumstances which raise the suspicion are explained so as to dispel it.

**95 The defendant submitted, and the plaintiffs agreed, that this is a prima facie case of 'suspicious circumstances', given that Mrs Le Bon is an executor, a beneficiary to the 2008 Will and was instrumental in the process of bringing the Will into existence -factors that give rise to a suspicion that the 2008 Will may not represent the mind and will of Mrs Lane.

96 For the reasons set out above, that suspicion has been dispelled. The nature of Mrs Le Bon's and Mr Rapoport's involvement has been adequately explained.**

The plaintiffs deliberately refrained from obtaining medical evidence

97 The defendant submitted that the plaintiffs, in particular Mrs Le Bon and Mr Rapoport, deliberately refrained from obtaining a medical report as to Mrs Lane's capacity, or that they knew that Mrs Lane had no capacity. Neither of these points was put to the plaintiffs in cross-examination. I have already commented on the veracity of the plaintiffs and I find no reason to draw any such inference.

**98 The plaintiffs did not call Ms Bruce, the second witness to the 2008 Will. The defendant invited me to draw a Jones v Dunkel inference in relation to this failure. Although Ms Bruce may have given evidence as to what she observed of Mrs Lane on 3 November 2008, in my view that evidence would have been very limited in scope. Moreover, neither Mrs Le Bon nor Mr Rapoport was cross-examined as to their observations of Mrs Lane on that day.

99 For reasons which I have explained, whether I draw the inference urged by the defendant or not, I have not been satisfied by the plaintiffs' evidence. It is therefore academic for me to consider whether such inference should be drawn and, if so, what effect it would have on my reasoning.

100 For the reasons above, I am not satisfied that the Will has been proved. The plaintiffs' application will be refused.

[1] Norris v Tuppen [1999] VSC 228.

[2] Nicholson v Knaggs [2009] VSC 64 [91]-[94].

[3] See for example Kantor v Vosahlo [2004] VSCA 235 [11], [16], [21]-[22] and [55].

[4] In the Estate of Wallace, decd; Solicitor of the Duchy of Cornwall v Batten [1952] 2 TLR 925.

[5] Perrins v Holland [2011] Ch 270; see also case note (2011) 85 ALJ 337 (Mr Justice PW Young).

[6] Ibid [22]; the rule in Parker v Felgate has been cited without criticism in two recent Australian decisions: Harrison v Peterson [2000] QSC 415 (Mullins J) and Lacerenza v Calautti [2005] WASC 46 (Jenkins J).

[7] Ibid [23] (citations omitted in original).

[8] McKinnon v. Voigt [1998] 3 VR 543.