READ v CARMODY

Although, in the Amended Statement of Claim which was filed on behalf of the Appellant in the proceedings, the attack upon the Will made on 5 February 1993 was based upon the deceased's alleged lack of testamentary capacity - said to be due to (inter alia) a combination of cognitive defects and overwhelming emotional distress - and the fact that, so it was alleged, the deceased's execution of the Will was procured by the undue influence of the Second Respondent - a concept of which the draftsman of the Amended Statement of Claim, in common with many members of the legal profession, clearly has little, if any, comprehension (see, for example, Winter v Crichron!) - and although, on the hearing of the appeal, counsel for the Appellant seemed determined to assert that the deceased's alleged lack of testamentary capacity was due to two material - "non insane - delusions" - on the part of the deceased - the phrase "non insane delusions" as I have on at least one prior occasion (Shaw v Crichron2) had occasion to point out, is an oxymoron, while the phrase "insane delusions" is a tautology - since delusions are pathognomonic of psychosis - in the end, the question which Brownie J was called upon to determine was whether, by reason of certain facts which the Appellant sought to establish, and upon which he sought to rely, it appeared that the deceased at 5 February 1993 no longer retained testamentary capacity. Bearing in mind that, although seeking to persuade Brownie J to the view that the deceased no longer had testamentary capacity on 5 February 1993, the Appellant nonetheless sought to propound, and to have a

1. (1991) 23 NSWLR 116
2. Court of Appeal 23 August 1995 (unreported)

grant of Probate made in respect of, the Wills made by the Deceased on 3 February 1993 and 11 December 1992 it is, in my view, hardly surprising that Brownie J concluded (AB 1286):

"T accept the view of Dr Phillips that the testator had testamentary capacity, as at 5 February 1993. He was frightened of and anxious about the pending surgery, and he was 91 years old, but he was an unusually fit, alert and aware 91 year old, and in particular, he understood that he was making his will, he understood the claims upon his bounty, and he understood what property he had. It may be the case, as Dr Phillips postulated, that the act of executing his will of 3 February, coupled with his anxiety, led him to reconsider the terms of that will; for what it is worth, this is consistent with the notion that his visit to Dr Pead on 10 December 1992 triggered his decision to alter his copy of his 1988 will, on 11 December 1992. However, I do not accept that there was any significant impairment of his cognitive functioning.

The sharp differences between the two wills of 3 February and 5 February raise what most people would regard as a presumption that there was something amiss with the testator, and his statements indicating what seems to have been a state of forgetfulness reinforce that view. If there is a legal presumption to this effect, the evidence displaces it."

Lest the fact that I have referred to the Appellant's attempt to persuade Brownie J to the view that, as at 5 February 1993, the deceased lacked testamentary capacity leads to some misapprehension as to the basis upon which the proceedings at first instance were conducted, I record that, despite that the fact that the Respondents did not, as it was open to them to do, file a Cross-Claim seeking a grant of Probate in Solemn Form of the Will of 5 February 1993, Brownie J, at the commencement of his Judgment (AB 1265), wrote (inter alia) as follows:

"The testator, John Wilson, died on 9 March 1993, aged 91. The defendants, the executors appointed by his will of 5 February 1993, obtained a grant of probate of that will in common form. The plaintiff is one of the executors named in another will made by the testator, on 3 February 1993, and he seeks probate of that will, in solemn form, saying that the testator lacked testamentary capacity as at 5 February. The defendants' concede that the plaintiff is entitled to proceed in this way, and that they bear the onus of proving that the testator had testamentary capacity, at the time of the execution of his will of 5 February."

(see also Re Hodges, Shorter v Hodges?) It is clear from the first of the passages in Brownie J's Judgment which I have set out above that his Honour was aware of the various matters which he was required to consider in determining whether or not at the relevant time the deceased had testamentary capacity. Those matters have, over the years, been expressed in varying forms and in differing language, but all formulations seem agreed that "testamentary capacity" encompasses the following concepts:

1. that the testator - or testatrix - is aware, and appreciates the significance, of the act in the law which he - or she - is about to embark upon;

2. that the testator - or testatrix - is aware, at least in general terms, of the nature, and extent, and value, of the estate over which he - or she - has a disposing power;

3. that the testator - or testatrix - is aware of those or may reasonably be thought to have a claim upon his - or her - testamentary bounty, and the basis for, and nature of, the claims of such persons;

4. that the testator - or testatrix - has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons.

The necessary corollary of this is that, if, at the relevant time the testator - or testatrix - is found to suffer from a condition - whether "mental illness" (or psychosis) in the strict sense or any other form of "mental disorder" (including, but not limited to, deterioration in higher intellectual function or dementia) - which detrimentally affects his - or her - consciousness or sense of orientation, or has brought about disturbances to his - or her - intelligence, cognition, thought content and thought processes, judgment and the like, then, even though that condition may be transient, or, if appropriately treated, reversible, the testator - or testatrix - will, more probably than not, be held to lack testamentary capacity.

This being the question which Brownie J was called upon to determine, and the basic principles which he was called upon to apply when determining that question, it is necessary now to consider the facts as he found them and upon which he based the conclusion which I have earlier set out.

The deceased who was born in Scotland was the eldest, and one of the seven, children - one daughter and six sons - of William and Jane Wilson. The family is said to have migrated to Australia in three groups in the period 1929 to 1931. Of the deceased's siblings, only four, his sister Elizabeth - seemingly known as Lily - and his brothers, William, George and Stanley - need be noticed.

The deceased married only once, his wife being Violet - whom he called Vi. There were no children of the marriage.

For a time the deceased and his wife conducted a café called "The Green Mill" at Parramatta. One of those who worked for the deceased and his wife at the café was the mother of one who gave evidence on the hearing before Brownie J, Mrs McCauley. Mrs McCauley's mother, who appears to have worked at the café for some 15-20 years, and her husband lived nearby. Mrs McCauley said that the deceased and his wife treated her like a daughter and that, even after the deceased and his wife moved to the Wollongong area where the deceased - or they - together with the deceased's brother Stanley later built, or had built, the block of flats in which they went to live about thirty years ago she (Mrs McCauley) and the deceased and his wife - and after the death of the deceased's wife, the deceased - kept in touched and remained on affectionate terms.

The deceased's sister Lily, who seems now to be well into her eighties, married one Thomas Carmody in December 1944. Mr and Mrs Carmody had one child, a son, Ian, who is the First Respondent. At the time of the deceased's death and at the time of the hearing before Brownie J, Mr and Mrs Carmody lived at Fairfield while the First Respondent lived at Northmead.

The deceased's brother William, who died in 1988, and his wife had a daughter, Robyn, who, in 1969, married the Appellant, Frank Read. Mr and Mrs Read have had a son of their marriage, Anthony, who appears to have been born in 1974. Mrs Read claims that, throughout her life, she maintained a close and affectionate relationship with the deceased who, on many occasions, spoke of the provisions which he had made, or which he intended to make, for her after his death.

The deceased's brother George had two sons, Grahame and Kenneth. The deceased's brother George lived in the Katoomba area until 1990, when he went to live with the testator in his flat at Wollongong and where he continued to live

up until some time in 1991 when, because of failing health, he was admitted to hospital. At the time of the hearing before Brownie J, the deceased's brother George was living in a nursing home, his son Grahame lived at Katoomba and his son Kenneth lived in the United States, where he had lived since 1976.

The deceased's brother Stanley did not marry but, as it seems, lived with his parents until the death of his mother, and thereafter with his father, in what had been his parent's home at Jessie Street, Westmead. Ultimately, after the death of his father, the deceased's brother Stanley became registered as the proprietor of the Westmead property.

Although the materials which are before the Court are less than clear, it would appear that, following the death of the deceased's mother, housekeepers were, from time to time, engaged to care for the deceased's father and the deceased's brother Stanley. One of those housekeepers appears to have been the grandmother, while another appears to have been the mother, of Fiona and Gary Evans who appear to have been the, or at least among the, beneficiaries of the estate which the deceased's brother Stanley left when he died in 1989. For the last four years of the life of the deceased's brother Stanley, Fiona Evans appears to have acted as his housekeeper.

At least during the last four years of the life of his brother Stanley, the deceased saw him regularly. The deceased, who, as it would seem, followed the Parramatta Rugby League football team would often visit his brother on week-ends, particularly during the football season when the Parramatta team played "home matches" at Parramatta. On such occasions he often stayed with his sister and brother-in-law Mr and Mrs Carmody at their home at Fairfield.

Because of her position, Fiona Evans came to regard the deceased and his brother Stanley as the two major male figures in her life. Following the death of the deceased's brother Stanley, Fiona Evans, in particular, and her brother Gary Evans, continued their relationship with the deceased, who continued to manage the flats and who kept them, as the beneficiaries of Stanley's interest in the flats, informed of his management of the flats and accounted to them from time to time for their share in the proceeds of lettings.

Although it would appear that, after the death of the deceased's father in about 1954, there was a falling out between Mrs Carmody and her brother William, following which Mrs Carmody had little if any contact with her brother William or his daughter Mrs Read or any of her family, it would seem that the deceased attempted to maintain contact with both the Carmodys and the Reads although, in his Judgment, Brownie J expressed the view that that contact was not particularly frequent.

In addition to members of the deceased's immediate family there were others who played a part in the deceased's life in his later years, and some of whom gave evidence at the hearing before Brownie J. Those others included:

Mrs Baker was the deceased's wife's sister. She and her husband for some fifteen years lived in the flats at Wollongong which were owned by the deceased and his brother Stanley before they moved out to a unit which was but a short

distance away from the flats. Mr Baker's evidence was, if I may say so, a little odd. In the Affidavit which he swore in support of the Appellant's case, Mr Baker gave the impression that he and his wife saw the deceased regularly over the years. In the same Affidavit, Mr Baker deposed to what he claimed was the deterioration in the deceased over the eighteen months prior to his death, that deterioration, so he said, being reflected (inter alia) in the deceased's ill -kempt appearance and the deterioration in his speech. However, in his oral evidence, Mr Baker said that, although he and the deceased had been on good terms for about fifteen years prior to 1978 when, so he said, the deceased had struck Mrs Baker, thereafter, and until the day when the deceased died, he regarded the deceased as an enemy. In the same evidence, Mr Baker seemed to suggest that the deterioration in the deceased's appearance and speech may have commenced at about the time - in 1980 - when he and Mrs Baker left the flats at Wollongong.

Mr Bell, who met the deceased some seven or eight years prior to the deceased's death, lived with his wife a short distance away from the flats at Wollongong. Mr Bell was interested in rugby league football and it was because of that interest that he came to meet the deceased and it was through that interest that the relationship between the deceased and Mr and Mrs Bell developed. They often travelled with the deceased to football matches particularly when the Parramatta team was playing "home games" at Parramatta and it was more probably than not on such occasions that Mr and Mrs Bell came to meet Mr and Mrs Carmody. Although Mr Bell gave evidence of the fact that the deceased appeared to be slightly deaf and wore a hearing aid, his impression was that the deceased's general health was good, that he appeared to be mentally alert and that he was able properly to carry on conversations and discuss general affairs.

Mr Simonato was a retired mechanical engineer who owned the block of flats adjacent to that owned by the deceased and his brother Stanley and who, for about ten years, had lived in one of the flats. Despite the fact that, some ten years or a little more prior to the deceased's death, he (Mr Simonato) had moved from the block of flats which he owned, he regularly attended the flats on several days a week. On such occasions, so Mr Simonato said, the deceased would often come to his (Mr Simonato's) block of flats for a chat. They were both interested in sport and they regularly spoke about the Parramatta football team. Mr Simonato's observations were to the effect that the deceased appeared to be healthy, that he did not appear to be subject to any mental disorder and that he regularly drove himself in his car even doing so in the week prior to his being hospitalised,

Mr Dignan, a retired bank manager, who lived near the deceased had known him for about thirty years prior to his death. Both Mr Dignan and the deceased were keen swimmers and played bowls at the Wollongong City Bowling Club which seemed to have ceased to operate but a short time before the deceased's death. Mr Dignan observed that the deceased was a very active man. Mr Dignan, who, as a retired bank manager, was a Justice of the Peace, was accustomed from time to time to witness documents for the deceased at his request. Mr Dignan's observations of the deceased were that he was clear minded, that he did not talk inappropriately, that he appeared well fed and healthy and that his clothing was appropriate at all times.

Mr Dollin, who had died by the time the matter came on for hearing before had known the deceased for about twenty years prior to his (the deceased's) death. It would seem that, for much of that time, Mr Dollin lived in a home unit not far from the deceased's flats, but that, some years prior to the deceased's death, he moved to another home unit a further distance away. Mr Dollin appears to have

been accustomed to visit the deceased every second night. Mr Dollin and the deceased appear to have played bowls together over the period of seven years or so prior to the Wollongong City Bowling Club ceasing to operate. In addition, they shared a common interest in rugby league football and regularly attended matches in Sydney together.

In the Affidavit which he swore on behalf of the Appellant prior to his death, Mr Dollin, who appears clearly to have been very frail at the time, deposed to his being involved in a motor accident when a passenger in a car driven by the deceased in December 1992 - the correct date appears to have been March 1990. Although each of Mr Dollin and the deceased was admitted to hospital following the accident, Mr Dollin did not observe any changes in the deceased's conduct or behaviour following the accident.

In his Affidavit Mr Dollin further deposed to having observed the relationship between the deceased and Mrs Read and her family and, as well, deposed to statements indicating that the deceased intended to make provision for Mrs Read after his death.

In the same Affidavit Mr Dollin deposed to having met the Second Respondent, whom he described as "a good bloke", and who, so he said, assisted the deceased around the flats as a general handyman and attended to many items requiring repair or maintenance. In the Affidavit Mr Dollin described the relationship between the deceased and the Second Respondent as a friendly one.

The Second Respondent, who was born in Korea, and who, at the time of the hearing before Brownie J, was 38 years of age, immigrated to this country in 1984. At first he lived in Melbourne where for a time he worked for Westinghouse System Ltd as a technician. The Second Respondent appears in 1987 to have moved to New South Wales where, in March 1988, he commenced a full-time course at Wollongong University, graduating in May 1991 with a Diploma of Computer Application.

The Second Respondent met the deceased in August 1988 apparently as the result of his carrying out some work on a washing machine in a flat at the deceased's block of flats which was being rented by a friend of the Second Respondent. From time to time thereafter the deceased engaged the Second Respondent to carry out maintenance or repairs which were needed around the flats.

About a year later the deceased offered the Second Respondent an opportunity of living in one of the flats upon the basis that he (the Second Respondent) would help the deceased with the general maintenance of the various flats. The flat which was offered was that which was located next to the deceased's flat and needed first to be renovated with the materials which the deceased had bought and which materials the Second Respondent then used for that purpose. When the renovations had been completed, the Second Respondent and his wife moved to occupy the flat and continued to do so until mid-1990 when they were offered Housing Commission accommodation to which they then moved, with the approval of the deceased. At some time - which is not clear - after the Second Respondent and his wife had moved into the Housing Commission accommodation, the deceased gave the Second Respondent the use of the flat which he and his wife had previously occupied and encouraged him to let it, for his own benefit, at a normal commercial rent.

Despite the fact that the Second Respondent and his wife had moved to the Housing Commissioner accommodation, the relationship between the deceased and the Second Respondent appears to have become progressively more close,

the Second Respondent not only continuing to carry out repairs and maintenance for the deceased but also being given the task of collecting the rent of the flats when the deceased was on vacation; as well, the Second Respondent began to assist the deceased with keeping his accounts, preparing an accounting programme for the deceased to use on a computer which he had bought and teaching the deceased how to use the computer.

Mrs Grozde and Mr Graham - neither of whom gave evidence at the hearing before Brownie J - were tenants in the deceased's flats. At one time when the Second Respondent returned to Korea for a short time, the deceased engaged Mrs Grozde and Mr Graham to carry out cleaning and maintenance work in the flats.

It is convenient that, before I turn to record the events of the last few months of the deceased's life, I record some information as to the four formal Wills which were known to have been made by the deceased prior to the two Wills which were the main focus of the proceedings.

The first of such Wills was made in November 1966, prior to the death of the deceased's wife. It provided, as one might have expected, for the appointment of the deceased's wife as his executrix and, in the event that she survived him by three months, constituted her his universal legatee. The Will further provided that, in the event that the deceased's wife did not survive him or did not survive him by three months, Mr P J McGrath, who appears as if he were then the deceased's solicitor, be appointed the executor of the Will, and, after providing for some small legacies and bequests, directed that the income from the flats be divided between Mrs Baker and a Mrs Harrison - who was a cousin of the deceased - during their joint lives and thereafter be paid to the survivor of them during her life, and that thereafter the income to be paid to the First Respondent and a Mr Northey, a nephew of the deceased's wife, who were also constituted the deceased's residuary beneficiaries.

The second Will which appears to have been prepared by Mr K W Ewart, a solicitor at Parramatta, who appears, by then, to have become the deceased's solicitor, was made in June 1977. It provided for the appointment of Mr Read and the First Respondent as executors and, after providing for some small legacies in favour of Mrs Harrison, Mrs Carmody, Mr Northey and Mrs Baker, provided for the residuary estate to be divided into six equal shares, two of which were devised to each of Mrs Read and the First Respondent and one of which was devised to each of Grahame Wilson and Kenneth Wilson.

The third Will, which again appears to have been prepared by Mr Ewart, was made in November 1982. As with the second Will it provided for the appointment of Mr Read and the First Respondent as executors. After providing for small legacies in favour of Mrs Harrison and Mr Northey, the Will provided for the residue of the estate to be divided into six equal parts, three of such parts to be bequeathed to each of Mrs Read and the First Respondent. The Will also provided for the postponement of the sale of the Wollongong flats for a period of ten years "to permit the same to be retained for the use of (his) brother Stanley Wilson during that period of time".

The fourth such Will, which appears also to have been prepared by Mr Ewart, was executed in July 1988. As with the second and third Wills, this Will provided for the appointment of Mr Read and the First Respondent as executors. It provided for legacies of $5,000.00 to each of Grahame Wilson and Kenneth Wilson and to Patricia McCauley and directed that the rest and residue of the estate be divided into six equal shares, three of such shares to be devised to each of Mrs Read and the First Respondent. On this occasion the Will provided for the

postponement of the sale of the flats at Wollongong for a period of up to six years after the deceased's death, but subject to the proviso that, if Stanley Wilson, Mrs Read and the First Respondent were to agree, the property might be sold earlier.

Subsequent events would seem to suggest that Mr Ewart provided an unsigned copy of this Will to the deceased who still had it in his possession in December 1992.

In light of the case which the Appellant sought to make out in the proceedings, it is proper that, before recording the events of the last few months of the deceased's life, I note that in his Judgment (AB 1272), Brownie J found that "on any view of the matter, (the deceased) was unusually fit, active, alert, and aware, for a person of his age, 91 in late 1992".

It would appear that, in the latter part of 1992, there was a proposal before the Wollongong City Council for the erection of a motel near the deceased's flats, a development to which the deceased was opposed and which led him to incur expenses in endeavouring to prevent it. According to Mrs Read the deceased told her that the solicitor for the Council was Mr Brodie and that he hated Mr Brodie

• subsequent events would seem to cast more than a shadow of doubt over that part of Mrs Read's evidence. Be that as it may, it would appear that the proposed development was very much in the forefront of the deceased's mind and prominent in his conversation during the latter months of 1992.

On 11 November 1992, the deceased saw his general practitioner, Dr Pead, who, so it seems, he had consulted from time to time over the preceding years. It should be noted that in the Affidavit which he swore in support of the Appellant's case, Dr Pead recorded (AB 159) that "the deceased was a remarkable man who enjoyed good health". In the course of a routine physical examination conducted by Dr Pead on that day, he found what he thought was an aortic aneurism, to confirm which diagnosis he referred the deceased to the South Coast Vascular Laboratory.

Dr Pead saw the deceased again on 23 November 1992 when he referred him to Dr Huber, a vascular surgeon.

In early December 1992, so Mrs Read said (AB 55), she spoke to the deceased who said that George Wilson had suggested to him that it was unfair for Mrs Read and the First Respondent to inherit the whole of the deceased's estate, and that the deceased said that he thought he would leave a little extra to Grahame Wilson and Kenneth Wilson.

It was part of the Appellant's case at trial that, at about this time, it was proposed that the Reads should go to live in Wollongong near the testator, a proposal which had been mentioned over the years, despite which it had not suited the Reads to move earlier.

On 10 December 1992, Dr Pead saw the deceased once more. On that occasion he recorded the result of a report which he had received from the South Coast Vascular Laboratory and referred the deceased to Dr Novotny, a general physician, with a view to obtaining an opinion as to whether or not the deceased was fit to undergo the general anaesthetic which would be needed if the aneurism were to be surgically repaired.

Since it was dated by the deceased in his own hand "11 December 1992", it would appear that it was on that day when the deceased took the unsigned copy of his 1988 Will to which I have earlier referred and made a number of alterations to it, which alterations he then initialled. The principal alterations, clearly enough, indicated that the deceased intended to increase the legacies to Grahame Wilson and Kenneth Wilson from $5,000.00 to $10,000.00 but to make no

provision whatsoever for a legacy to be paid to Patricia McCauley. The other alteration involved the deletion from the provision for postponement of the sale of the Wollongong flats of the words:

"As the property comprises a block of units jointly owned by with my brother STANLEY WILSON who is registered as owner of one quarter share, it is my wish that the property be retained during his lifetime subject, however, that if all parties agree to the sale of the property then my trustees know and empower to do so (sic)."

the latter part of that provisions having become otiose as the result of the earlier death of the deceased's brother Stanley. Despite having made those alterations, the deceased did not communicate that fact to anyone until later in the month.

On 18 December 1992, the deceased saw Dr Huber who, on conducting a physical examination, confirmed Dr Pead's diagnosis. In the letter which he wrote to Dr Pead on that day (AB 965), Dr Huber wrote:

"T agree that one should consider this gentleman for repair. I understand that he quite elderly, but has now been well demonstrated that aneurism repair in the elderly does indeed prolong life and therefore should be seriously considered. His aneurism is (greater than) 5.0cms and I would therefore consider him for repair. Ihave taken the liberty of arranging for him to be seen by Dr Etheredge for work up and I have sent off some blood investigations. I have arranged a C T scan to confirm the diagnosis and to assess the relationship to the renal arteries. I will review him in the rooms in one month's time."

In his oral evidence, Dr Huber indicated that he did not contemplate carrying out any required surgery in January as the hospital was closed to elective surgery in January 1993.

According to Mrs Read, she telephoned the deceased on 19 December 1992 and that he appeared to be vague and she had to tell him three times who she was. Later during the course of the conversation, however, he told her that he had seen Dr Huber the day before and that he had to have an operation. She, for her part, expressed concern and told me that her husband might have cancer. At that stage, her mother was terminally ill and the deceased expressed his concern and inquired if she needed financial help. He then spoke again of the development proposal and again invited the Reads to live with him. She, for her part, invited him to go to her house for Christmas but he said that he was going to the Carmodys.

In the late evening of 20 December 1992, the deceased telephoned the Second Respondent and told him that he had seen "some funny lighting on the wall when he got to sleep in the bed". The Second Respondent then drove to the deceased's home and took him to the Casualty Department of the hospital. The hospital records (AB 971) recorded the presenting symptoms as:

"91 y o (man) noticed ground colour is the same as the wall when it is dark

Some bright red colour blood on paper toilet." and (AB 970):

Old slightly deaf old man 90 above + and the fact he sees cobwebs when the room is dark. Seeing Dr Huber with aneurism

The deceased appears to have been discharged at about midnight having said that he felt better (AB 972) and was instructed to see his general practitioner on the following day. On discharge the deceased was provided with a letter addressed "Dear Dr G P" which recorded (AB 969):

Clinical findings: neurologically stable, no signs, orientation etc all good BP 130/70 PR 80 no abdominal tenderness BS = (N) AAA is felt- CVS - (N) Resp - (N)

Instructions: continue to follow up before elective surgery" The deceased saw Dr Pead on 21 December. Dr Pead's notes record (AB 912): "Aneurism more definite O/E Referred physician opinion (Etheredge) Reports minor visual symptoms BP satis Generally well but shaking Prob for aneurism repair in early 93"

Between 24 and 28 December 1992, the deceased stayed with the First Respondent at his home at Northmead. On Christmas Day, after lunch, the deceased told the First Respondent that he was to go into hospital and wished to discuss some personal matters with him. By arrangement, that discussion (AB 252-256) took place the following day while the deceased and the First Respondent were at Mr and Mrs Carmody's home.

During the course of the discussion the deceased spoke of the flats and told the First Respondent of his wishes for his funeral telling him that he (the First Respondent) was a co-trustee of his Will. He then produced the copy of the 1988 Will (AB 945-946) which bore the alterations to which I have earlier referred and asked the First Respondent to take the document to Mr Ewart so that a new Will could be drawn up and executed. At the same time he gave instructions as to a provision he wanted inserted concerning the co-ownership of the flats by Fiona Evans and her brother. The First Respondent wrote out a summary of those instructions (AB 953) and the testator approved of it. The deceased then had Mr Carmody sign the copy will and the instructions for the purpose of identification.

The deceased saw Dr Pead again on 29 December 1992, on which occasion Dr Pead found that the deceased had an enlarged prostate for which he appears to have prescribed some form of medication. An operation for the deceased's prostate condition was proposed, but not until after the operation for the repair of the aneurism.

On 31 December 1992 the deceased went for his usual early morning swim. In some way which is anything but clear he injured his head. When he returned home, he telephoned the Second Respondent at about 6.00am telling him that he was not well and asking him to go to the deceased's flat. The Second Respondent, while there, noticed a mark on the testator's head "like a scratch". The Second Respondent asked the deceased to go to hospital, but the deceased said that he would make an appointment to see a doctor himself. The deceased then gave the Second Respondent instructions as to his banking.

It would seem that Mrs Grozde and Mr Graham took the deceased to the hospital shortly afterwards. The hospital notes (AB 973) record:

"Superficial lac frontal scalp sl venous ooze For-clean

The deceased saw Dr Pead again on 8 January 1993, on which day Dr Pead referred him to Dr Skyring for a pre-operative report in respect of the prostate condition (AB 912).

On 12 January 1993, Dr Etheredge saw the deceased and, after examination, reassured him that he was fit for an anaesthetic if necessary. At the time Dr Etheredge noted that the deceased "was certainly quite deaf" (AB 966).

On the same day, and presumably after the deceased had seen Dr Etheredge, Mr and Mrs Carmody travelled to Wollongong to stay in the deceased's flat while he was in hospital and to look after him whilst he recuperated. This, so it seems, may well have been due to some misunderstanding by the deceased of what he had been told by Dr Huber or some misunderstanding on the part of Mr and Mrs Carmody as to what the deceased had told them - it being the fact that the deceased had an appointment to see Dr Huber on 15 January 1993.

On 12 January 1993 the First Respondent saw Mr Ewart and passed on to him the deceased's instructions for his new Will.

On the following day, Mr Ewart wrote to the deceased commenting on the instructions which he had been given as to the proposed new Will and, in particular, on the proposal that the flats be retained until six years after his death. At the same time, Mr Ewart advised that he had arranged for the First Respondent to collect the Will when engrossed and advised that it would be inappropriate for the Will to be witnessed by the First Respondent (AB 950-951).

On the following day, the deceased told Mr and Mrs Carmody that there was no bed available in the hospital at the time and they returned home.

On the same day Mr Read called to see the testator, whom he described as being uncharacteristically badly dressed and who, so he claimed, exhibited other uncharacteristic behaviour. Although mentioning his prostate problem to Mr Read, the deceased did not inform him that he was to see Dr Huber on 15 January 1993.

On 15 January 1993 the deceased was seen by Dr Huber who, on the same day, wrote to Dr Pead a letter (AB 964) which was as follows:

I have reviewed this gentleman in the rooms today following the CT scan.

This has confirmed the presence of a moderately large abdominal aortic aneurism. I have discussed surgery with Mr Wilson, especially following Dr Etheredge's consult. It appears he is perfectly fit for surgery.

I would still advise resection of the abdominal aortic aneurism as it has been clearly demonstrated that aneurism surgery in the elderly does prolong life. I have explained the risks and benefits, and Mr Wilson is happy to go ahead.

I have arranged for the resection to be done on 15.2.93. I will let you know how he gets on."

In the course of his cross-examination on the hearing before Brownie J, Dr Huber gave the following (inter alia) evidence (AB 442):

"Q. Those considerations of course would mean that when you were discussing the matter with the patient you would have been extremely careful to ensure that he was comprehending what you were saying about the operation and its risks? A. Yes.

Q. And you were so satisfied? A. I was satisfied that he understood what the operation was about, why it was being done and the potential for complications.

Q. You indicated that he appeared to you to be a remarkably fit, aware 91 year old? A. Yes, that is correct.

Q. What did you mean to convey by the expression 'aware 91 year old'?

A. Well, I see a number of 91 year olds who are unaware, who are mentally fairly hazy and he appeared remarkably aware. I would not have contemplated surgery on someone who was not aware of what was going on and for the average 91 year old I would not advise surgery.

Q. He appeared so far as his awareness and cognition was concerned to be above average for his age? A. Yes, that is correct.

Q. And considerably above average? I don't want to put words in your mouth? A. Yes. There is no doubt that he was a very aware 91 year old. I only see sick 91 year olds so don't know if the average 91 year old is as good as he was.

On 3 February 1993 the First Respondent travelled to Wollongong by prior arrangement with the deceased, to have the latter execute the Will which had been prepared by Mr Ewart. When he arrived he found that the Second Respondent, who, so it seems (AB 334), had been requested by the deceased to be there, in the flat. After the deceased and the First Respondent discussed the Will, the deceased went out and returned with Mrs Grozde. When he did so, he executed the Will which he had then witnessed by Mrs Grozde and the Second Respondent.

On the following day, the deceased saw Dr Pead for the last time. When he did so he complained of constipation for which the doctor appears to have prescribed an enema. The doctor's notes (AB 911) record that he "passed (the deceased) okay for surgery".

Late that afternoon, in accordance with arrangements which they had earlier made, the Second Respondent drove to the deceased's home to pick him up in order that they might go out for an evening meal. As they were driving to the restaurant, the deceased, so the Second Respondent - whom Brownie J accepted as a truthful and reliable witness (AB 1265) - said, told him that he (the deceased) had been thinking of giving his property to the Second Respondent. When he did so, the Second Respondent protested and said that the deceased's family would hate him (the Second Respondent), a sentiment which he repeated during dinner.

On the following day, at the deceased's request, the Second Respondent went to the deceased's flat. When he did so he, at the request of the deceased, using the deceased's computer, typed and printed out a document (AB 129) which was in the following form:

add: 26 Harcourt St, Killara 2071 2. Grahame Wilson

After he had done so, the deceased then consulted the telephone directory and appeared to make a telephone call.

Later that morning, the deceased called at the office of Mr Brodie, apparently without an appointment. As Mr Brodie was then engaged, an appointment was made for the deceased to see him at 2.00pm that day.

When the deceased returned that afternoon, he told Mr Brodie that he was shortly to enter hospital for surgery and that he wanted to make a Will. At the time, the deceased said to Mr Brodie - who had previously acted for the deceased in relation to a matter involving the Wollongong Bowling Club - "Do you remember me". After some general discussion, Mr Brodie commenced to make notes of his instructions. Those notes, when completed took the following form (AB 128):

T'tor JOHN WILSON Flat 7/10 Harbour St WOLLONGONG RETIRED BUSINESS PROPTR

EXERS: Tan Carmody and In Deok Jun (see attached sheet for address ect)

LEGAC Y $10,000 each to: Robyn Read : Graheme Wilson & : Ken Wilson (see attached sheet)

RESIDUE: The residue of my estate to my nephew Ian Carmody & my friend IN DEOK JUN in = shares [illegible]

ASSETS: Real Estate: 3/4 share as T & C in Flat @ 10 Hartow St W°GONG Personal Estate: Moneys on Deposit in Bank ETC. "nothing unusual."

The T'or wish that his interest in the Flats not be sold or disposed of for 6 yrs after his death. Explaining that this "WISH" may not be capable of fulfillment depending on the [Elilegible] of the estate generally, at his death & the Elilegible] duties + obligations to administer his estate. He understands but

wants it mentioned in his will anyway.[Mr Brodie's signature]

The reference in those instructions, to "'attached sheet" is a reference to the document which had been printed out by the Second Respondent earlier that day and which document the deceased had handed to Mr Brodie saying "I have typed this out personally. This is what I want in my Will. It ought to help you fix it up in legal form". As he read the note, Mr Brodie said:

"Please identify for me the persons you have named as 'Executives' and which should read "Executors ".

"No 1 Ian Carmody, that's my nephew and No 2 In Deok Jun that's my friend."

"What are the nature of the assets you've got now. I don't need to know their values necessarily, but I do need to know if there is anything special we should look at."

'Tve got a three-quarter share in the block off flats at Harbour Street, moneys on deposit and nothing unusual, by way of assets. I want you to be sure to put in the will that I don't want the flats sold or disposed of in any way for 6 years after my death. "

"Do you want to have your trustees to have the right and the power to deal with any of the estate assets as they deem fit for the purposes of attending to the affairs of the estate generally and winding up the estate?"

"Yes that's what I want them to be able to do but I just want them to hang onto the flats for six years after I die and not sell them straight away following my death. "

(The inventory of property (AB 19) which was filed in connection with the application by the Respondents for the grant of Probate of the Will made 5 February 1993 discloses that the estate comprised the deceased's interest in the flats, which was valued at $750,000.00, moneys in Banks or on deposit with financial institutions totalling about $60,000.00 and the deceased's 1990 Mazda 626 motor vehicle estimated at about $23,000.00)

Having taken instructions for the Will Mr Brodie then asked the deceased to wait in the waiting room while he dictated the Will and had it engrossed. When that had been done he took the engrossed Will to the waiting room where the deceased was sitting and asked the deceased to read it. After he had done so, Mr Brodie asked the deceased "Is it okay? Do you have any questions", to which the deceased replied "No, this is just what I want'. The two then returned to Mr Brodie's office where the deceased executed the Will and Mr Brodie and a secretary, Miss Tonkin, witnessed it.

Mr Brodie (AB 126) described the deceased as being a remarkably active man for his age, in complete control of his faculties, cheerful of manner and with a distinct and jaunty air about him, walking with a noticeable spring in his step; Miss Tonkin said (AB 118) that the deceased appeared to her to be much younger in appearance than one of his age, fit and alert; Miss Carrie, Mr Brodie's secretary, who had made the appointment for the deceased to see Mr Brodie and who saw the deceased again on 8 February 1993 when he called at the office to pay his account, agreed with Miss Tonkin's observations (AB 121). Mr Brodie (AB 126) also said that, in providing his instructions for the Will, the deceased appeared to him (Mr Brodie) very clear as to what he wanted done, was quite emphatic about the manner in which he gave his instructions and was anxious to have the matter dealt with on the day.

On 12 February 1993, Mr and Mrs Carmody returned to Wollongong to stay in the deceased's flat to look after the flats generally for so long as was necessary. Mr and Mrs Carmody both described the deceased as if he were quite well, although Brownie J held (AB 1280-1281) that, on the totality of the evidence, the deceased was plainly quite anxious about going into hospital but otherwise he was apparently quite well.

The deceased swam on each of the following two mornings and in the afternoons he and Mr Carmody went for a long walk. The deceased gave Mr Carmody detailed instructions as to the conduct of the flats.

On 14 February 1993, during the afternoon of which the deceased was to enter hospital, Mrs McCauley went to Wollongong to visit him. At that time, so Mrs McCauley said - and Brownie J accepted (AB 1282) - the deceased was very anxious.

The deceased appears to have been admitted to hospital at about 3.00pm on 14 February 1993. On examination he was recorded (AB 982) as being

"Pleasant 91 yo man, quite deaf, lying comfortably in bed NAD P 72Af T afebrile RR 18"

The deceased appears to have been taken to theatre during the morning of 15 February 1993. Following surgery he was taken to the recovery ward at 1.00pm and then to the Intensive Care Unit later that afternoon in a serious but stable condition (AB 984). The nursing notes (AB 985 et seq) appear to record an apparently satisfactory recovery in the early stages. At various stages during the early days following surgery the nursing notes record such things as that the deceased was alert (AB 987), co-operative (AB 985), easy to nurse (AB 988) but very deaf (AB 985).

Despite the early apparently satisfactory recovery, on 19 February 1993 (AB 994) the deceased developed an atypical right basal pneumonia. Despite intensive care over the course of the following two weeks, the deceased's condition deteriorated and he died on 9 March 1993, as the result of staphylococcal septicaemia which, although originally thought to have been due to an infected abdominal aortic aneurism graft, was, after an autopsy, said probably to have been due to staph epidermidis pneumonia (AB 975-976). It should be noted that, despite the onset of pneumonia and the deceased's deteriorating physical condition, the nursing notes at least into the early days of March 1993 recorded the deceased as being alert (AB 996, 999), orientated (sic) (AB 1002), co-operative (AB 1003, 1004).

In what I have written above I have endeavoured to summarise, as best one might in such circumstances - the reading of the affidavit evidence and the taking of the oral evidence alone having occupied some eight hearing days - the general nature of the evidence given by the lay witnesses on the hearing before Brownie J.

The expert evidence which was given on the hearing directed to the question of the deceased's testamentary capacity was that of Dr R B Milton, a psychiatrist who, of more recent years, has practised exclusively in the area of forensic psychiatry - he being called on behalf of the Appellant - and Dr J Phillips, a consultant psychiatrist in private practice who was called on behalf of the Respondents.

As will be apparent from what | have earlier recorded, neither Dr Milton nor Dr Phillips had ever examined the deceased and, in forming their respective opinions, each was dependent upon material which had been provided to them.

In the report (AB 182-197) which he provided to the Appellant's solicitors, Dr Milton concluded (AB 197):

"T consider, from the material presented to me, that the Will on 5 February 1993 was signed while Mr John Wilson was in an abnormal cognitive and emotional state, and in consequence he was not able to reason with clarity regarding the disposal of his assets."

Although the report is discursive, it would seem that, in reaching that conclusion, Dr Milton relied upon the following matters:

what he described as "two significant head in injuries prior to making the Wills in February 1993", the first said to have been sustained in the motor accident and the second said to have been sustained on 31 December 1992, which accidents, so he said (AB 196), "probably occurred because of decreased cognition, but they in turn could have caused minor cerebral damage which contributed to cerebral difficulties from other causes.";

the fact that, so he said (AB 196), "(the deceased) attended hospital in December 1992 suffering visual hallucinations. Visual hallucinations are characteristic of organic brain damage, and are extremely rare otherwise.";

the fact that there was evidence of vascular deterioration (AB 196):

the fact, so he said (AB 196), that "it is common for people who pride themselves on their health and fitness, and who have enjoyed health and fitness for many years, to be seriously affected by the knowledge they have a life threatening condition, especially one that could cause death by such a dramatic event as the sudden rupture of the largest blood vessel in the body.";

the cognitive changes to which he referred, which changes, appear to have been little more than occasional forgetfulness and vagueness. In this regard, however, it should be noted that Dr Milton observed (AB 192) that, in respect of some of the matters upon which the Appellant sought to rely as evidence of the deterioration of the deceased's mental state, "these events are typical of mild confusion resulting from organic brain changes" and, later, (AB 196) that "(the deceased's) cognitive changes might not of themselves have been sufficient to cause him to act in an irrational fashion. However, he was, in addition, suffering severe emotional distress, principally from the news of his serious medical condition and the requirement for surgery.".

In the report (AB 422-433) which, in June 1994, he provided to the Respondents' solicitors, Dr Phillips, after reviewing the material which had been provided to him - that material including all the Affidavits and reports which had prior to that time been filed in the proceedings, and the available medical records

• concluded (AB 432-433):

"Putting the above together, I believe it should be accepted that (the deceased) at/about 5 February 1993 was an elderly man in generally good physical health (excepting the abdominal aortic aneurism). He probably did not have advanced arterial disease given the comments of his examining physicians. He probably was experiencing considerable anxiety at the time, this being understandable and appropriate in the circumstances. He may also have had symptoms suggestive, but not indicative, of early frontal brain atrophy. The major pointers were his diminishing care of the household and some loss of interest in his choice of clothes.

There is evidence that (the deceased) had significant impairment of emotional control and/or cognition at/about 5 February 1993. It is highly unlikely that he was clinically depressed or suffering a psychotic disorder at that time and it is improbable that he had any organic brain disorder prior to his post-operative

deterioration. Finally, there is no evidence of significant memory impairment at that time. He might, however, have had minor problems of recall consistent with benign forgetfulness, rather than a chronic dementing process.

It is only at this point where I can link (the deceased's) mental state at/around 5 February 1993. with issues essential for testamentary capacity. The following can be stated with a high degree of probability:

(The deceased) understood the issue of making his Will and the effects of that Will on others.

He had a firm knowledge of the extent of his bounty including the properties which he owned.

He understood the expected claims in the sense of the usual claim of relatives and in particular the relatives who had previously anticipated becoming beneficiaries.

He had no psychological illness or significant cognitive impairment which would have affected his capacity to understand the foregoing points.

In my opinion and on my reading of the two files of documents, (the deceased) was of clear mind on/about 5 February 1993 and had the capacity to properly make his last Will. He proceeded with deliberation and no apparent uncertainty. (The deceased) had full testamentary capacity."

In the course of his cross-examination, Dr Phillips' attention was drawn to the incident which occurred late in the evening on 20 December 1992 and which led to the Second Respondent taking the deceased to hospital. While agreeing that that incident involved a visual hallucination on the part of the deceased, Dr Phillips (AB 825-827) described the incident as an "hypnagogic event" as to which he said (inter alia) (AB 826):

"Hypnagogic event is an hallucination, it is a visual hallucination, so Dr Milton is absolutely correct. This is a visual hallucination but I wish to make it perfectly plain that this is a visual hallucination which is occurring at a particular point in time, as he is going off to sleep and as such is a visual, it becomes a visual hallucination of very little importance."

"To make it quite clear, hypnagogic event is a true hallucination. I do not want to suggest it is not because it is as much as an hallucination as any other hallucination, but what I had said earlier, and I repeat it, that the hypnagogic hallucination will occur in the twilight season when a person is not fully awake and when a person is not fully asleep. Now that is usually when a person is lying in bed and drifting off to sleep. It can occur if a person gets up in a half awake, half asleep state, goes to the toilet or whatever, and walks back to bed, almost asleep as he goes, and the hallucination appears at that moment.

(I am saying that (a hypnagogic event) is not indicative of organic cerebral damage). It is not indicative of any permanent organic change. It is an example, however, of a malfunction, a transient malfunction of the brain, something that passes. Now, in the ultimate this must be an organic event. There is some chemical error at that moment in time but it is transient, it is unique, and it is unlikely to occur again.

If a person has a true visual hallucination, they see something which does not exist and it occurs in clear consciousness, in a wakeful state, that is a visual hallucination and there will be an organic origin, either because of significant error within the brain or because the person has taken perhaps a drug which induces hallucinations. "

In the course of his Judgment, Brownie J recorded - as I have attempted to do

• and sought to analyse, the evidence of all the lay witnesses and of Dr Milton and Dr Phillips insofar as it bore upon the question of the deceased's alleged lack of testamentary capacity because of what were alleged to be the significant cognitive defects which were said to have been revealed by the evidence. Having done so, his Honour concluded on this aspect of the matter (AB 1285):

"Both Dr Milton and Dr Phillips say that the testator had some vascular changes, as was to be expected, given his age and family history, but on the whole, I prefer the view of Dr Phillips. These vascular changes are not shown to have caused any cognitive defect, or to be related to any significant cerebral change.

In summary, I find that, more likely than not, the testator did not suffer from organic brain damage, or significant cognitive defect."

Then, having dealt with the question of the deceased's "emotional distress" Brownie J recorded his ultimate conclusion in the paragraph which I have earlier set out (see p2-p3 ((above)). His Honour then recorded (AB 1286):

"T therefore dismiss the summons. The plaintiff asked for an order that her (sic) costs be paid out of the estate. The defendants did not oppose this, and it seems quite proper in the circumstances. I order that the costs of the parties be paid out of the estate, the defendants' on an indemnity basis. "

(I record this latter matter for two reasons: first, since the order as to costs which his Honour made was not one which was one which would, in the circumstances revealed by the evidence, normally be made in a contested probate suit (see, Re Hodges; Shorter v Hodges*); and second, since, in a Notice of Cross-Appeal filed on their behalf, the Respondents sought an order that the Appellant pay the Respondents' costs of the proceedings before Brownie J as well as the costs of the appeal and cross-appeal - in the end, however, no argument in support of the cross-appeal was advanced on the hearing of the appeal (T 22)).

In the Notice of Appeal which was filed on behalf of the Appellant, a number of grounds of appeal were taken. In addition to those grounds of appeal which asserted that Brownie J had failed to given any, or sufficient, weight to the evidence of Dr Milton, the following particular grounds might be noted: 1. that his Honour failed to find that the deceased, at the time of his execution of the Will of 5 February 1993, was suffering from a combination of cognitive defects and overwhelming emotional distress

that his Honour gave no, or insufficient, reasons for accepting the evidence of Dr Phillips over that of Dr Milton.

8. that his Honour failed to consider the submission of the Appellant that the deceased was suffering from an 'insane delusion'.

9. that his Honour failed to find (or make any finding on the Appellant's submissions) that the deceased's explanation for removing Mrs Read from his Will of 5 February 1993 was one which was 'not capable of rational explanation or amenable to reason and not explicable by reference to the subject person's education or culture.' - language, or language similar to, which is commonly used

when one is seeking to define a delusion (see, for example, Re Hodges; Shorter v Hodges5 In addition to seeking an order that the appeal be allowed the Notice of Appeal sought an order that Probate of the Will of the deceased made on 3 February 1993 be granted to the Appellant and the First Respondent.

What I have recorded above will make it clear that it was not asserted that Brownie J misdirected himself as to the principles of law to be applied to the determination of the questions arising in the proceedings and that, except for the complaint that his Honour did not give any, or gave but insufficient, reasons for preferring the evidence of Dr Phillips to that of Dr Milton (see Pettitt v Dunkley® Soulemezis v Dudley (Holdings) Pty Ltd') the appeal did not involve an question of law and that the main complaint of the Appellant was that Brownie J had made errors in fact finding.

Bearing in mind that fact, the fact that, as I have earlier recorded, the hearing before his Honour was a protracted one in which the principal lay witnesses and both Dr Milton and Dr Phillips were cross-examined at length, and the further fact that the findings which his Honour recorded in his Judgment were based at least in part on his Honour's assessment of the credibility of witnesses and, in particular, of the Second Respondent, the appeal would seem clearly enough to invite the observations of Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission':

"More than once in recent years this Court has pointed out that a finding of fact by a trial judge based on the credibility of a witness is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his (or her) advantage' or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable'.

So far as concerns the Appellant's complaint that Brownie J did not, either at all, or at least adequately, record his reasons for preferring the evidence of Dr Phillips to that of Dr Milton is concerned, I say no more than that the duty of a judicial officer to give reasons for the decision to which he ultimately comes is, as I understand it, not one which requires him to examine and determine every issue which has been raised in the proceedings, or to record in extreme detail the reasons which have led him to any particular conclusion, or the process of reasoning which has led him to his ultimate conclusion; it is enough if the judicial officer sufficiently exposes the facts which he has found which are relevant to his ultimate conclusion and the process of reasoning based on those findings which led him to his ultimate conclusion (Soulemezis v Dudley (Holdings) Pty Ltd!0; Apps v Pilet!!). In my view, the Judgment which Brownie J delivered did record

(1993) 177 CLR 472, 479; 112 ALR 641, 645-646 (1990) 171 CLR 167; 96 ALR 354

the facts which his Honour found and which provided the basis for the conclusion to which he ultimately came, and sufficiently recorded the process by which he came to that ultimate conclusion.

So far as the second matter of complaint upon which the Appellant seeks to rely is concerned, it is my view that the evidence which was tendered on the hearing before Brownie J provided an ample foundation for the conclusion to which his Honour ultimately came. In this regard I note the following:

despite the Appellant's persistent attempts to assert that the deceased's alleged lack of testamentary capacity was due to delusions - whether "insane delusions" or "non-insane delusions" does not matter - there was not the slightest evidence before the Court that, at the relevant time, the deceased was subject to any "delusions"; at most, Dr Milton, as I have earlier pointed out (see p32-p33 (above)), seemed to accept that the deceased's apparent, and intermittent, forgetfulness and vagueness evidenced no more than mild confusion consistent with his age;

in this regard it is to be noted that, in the course of his Judgment in Banks v Goodfellow!2 (upon which judgment counsel for the Appellant sought to rely)

"Tt may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that although the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his book on executors, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.'" (see also Hughes v Public Trustee!4)

the evidence of, in particular, Mr Brodie, in my view is more than sufficient to demonstrate that, on 5 February 1993, the deceased's mental state was more than adequate to meet the test so described by Cockburn CJ;

the fact - if it were the fact - that, at that time, the deceased may have been "in emotional turmoil" because of his anxiety over his forthcoming admission to hospital did not, in my view, render the deceased lacking in testamentary capacity (see Re Hodges; Shorter v Hodges!) for such an emotional state would not affect one's capacity to reason but would at most affect one's motivations for action;

finally, the Appellant's persistent attempts to assert that, notwithstanding the deceased was lacking in testamentary capacity on 5 February 1993, he nonetheless had such capacity on 3 February 1993, is to say the least incongruous.

The Appellant having, in my view, failed to demonstrate that Brownie J failed to use, or palpably misused, his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable, it follows, in my view, that his second challenge to his Honour's Judgment must fail.

14. Court of Appeal 19 August 1990 (unreported)
15. supra at 708-719

I therefore propose the following Orders: 1. ORDER that the Appeal be dismissed. 2. ORDER that the Cross-Appeal be dismissed. 3. ORDER that the Appellant pay the Respondents' costs of the Appeal. 5 4. MAKE NO ORDER as to the costs of the Cross-Appeal.

ORDER that the Appellant pay the Respondents' costs of the Appeal. MAKE NO ORDER as to the costs of the Cross-Appeal.

Counsel for the appellant: A W Street SC 15 - Solicitors for the appellant: John R Quinn & Co Counsel for the respondent: P W Neil SC and R S Bell

Solicitors for the respondent: Ewart & Ewart (Parramatta)