Robertson v Barker

Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 Frizzo v Frizzo [2011] QCA 308 Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 Harrison v Rowan (1820) 3 Washington 585 Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74 Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 In re R (dec'd) [1950] 2 All ER 117 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181 Kerr v Badran; Estate of Badran [2004] NSWSC 735 King v Hudson [2009] NSWSC 1013 Kogan v Martin [2019] EWCA Civ 1645 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Kyros v Stavrakis [2009] NSWSC 163 Lewis v Lewis [2021] NSWCA 168 Longman v R (1989) 168 CLR 79; [1989] HCA 60 Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch) Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 McNamara v Nagel [2017] NSWSC 91 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Musa v Alzreaiawi [2021] NSWCA 12 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Norris v Tuppen [1999] VSC 228 Parton v Johnson (1868) LR 1 P and D 549 Payne v Parker [1976] 1 NSWLR 191 Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep)) Perrins v Holland [2009] EWHC 1945 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Re Hodgson (1885) 31 Ch D 177 Revie v Druitt [2005] NSWSC 902 Rowe v Sudholz [2019] QSC 306 Ruskey-Fleming v Cook [2013] QSC 142 Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 Smith v Tebbitt (No.2) (1867) L.R. 1 P&D 398 Starr v Miller; Starr v Miller [2021] NSWSC 426 State of New South Wales v Hunt [2014] NSWCA 47 Stevens v Vancleve (1822) 4 Washington 267 Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 Tu v Tu; Estate of Tu [2008] NSWSC 458 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 Webb v Ryan [2012] VSC 377 Weeks v Hrubala [2008] NSWSC 162 Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 Wesley v Wesley (1998) 71 SASR 1 Wintle v Nye [1959] 1 WLR 284 Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy (2nd ed, 1989, Law Book Co) Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3 John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks - Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) P McClellan "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655 Category: Principal judgment Parties: Janette Ruth Robertson (Plaintiff) Penelope Jane Barker (first Defendant) Andrew John Barker (second Defendant) Representation: Counsel: Mr C Birtles (Plaintiff) Mr G Waugh SC with Mr H Morrison (Defendants)

Solicitors: Turnbull Hill Lawyers (Plaintiff) Crowther Sim Lawyers (Defendants) File Number(s): 2019/371048 Publication restriction: Nil

Introduction

1. These reasons follow a five day trial of a Probate action about the validity of the last Will of Mabel (also known as Margaret) Claire Hogan (the deceased), which Will she executed on 29 October 2016. The original of that Will is Ex P1 in the proceedings and is propounded by the Plaintiff, Janette Ruth Robertson. It is not a case about the validity of the deceased's penultimate Will, which she executed on 3 May 2013. The original of that Will is Ex D1 and it is propounded as the last valid Will of the deceased by the Defendants, Penelope Jane Barker and Andrew John Barker. The Plaintiff does not dispute that, when made, the 2013 Will was a valid and effective Will, but she asserts that it was revoked by the later Will. (The deceased also made a Will, which she executed on 13 August 2010, but neither party propounded that Will and the original has not been produced to the Court.) I shall refer to each of the Wills by the year of its execution without prejudgment as to its validity.
2. The deceased died on 25 June 2019, at 96 years of age, leaving property in New South Wales.
3. Whilst when appropriate, I shall refer to the parties as "the Plaintiff" or "the Defendants", I also shall refer to family members, after introduction, by his, or her, first name. I do so without intending to convey undue familiarity or disrespect, and for clarity and convenience. I shall return to the relationships of the parties, other persons, and the deceased, later in these reasons.

The Proceedings

1. The Defendants and their mother, Valmai Barker (to whom I shall refer later), filed a general caveat on 13 August 2019 and a Withdrawal of Caveat on 18 October 2019. A letter dated 25 October 2019, enclosing the Withdrawal of Caveat, noted that it was done "without admission and for the purpose of avoiding the ongoing costs of this matter": Ex TBNM1/226.
2. Then, on 21 February 2020, the Defendants, alone, filed another general caveat. A general caveat is one filed under Supreme Court Rules 1970 (NSW) Part 78 rule 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167.
3. The Plaintiff, who is a niece of the deceased, commenced these proceedings by Statement of Claim filed on 22 April 2020. She sought Probate in solemn form of the 2016 Will and consequential orders.
4. The Defendants, who are described as "step-grandchildren" of the deceased, filed a Defence and a Cross Claim on 5 May 2020. In the Defence, they admitted, relevantly, that the deceased died on 25 June 2019 leaving property in New South Wales; that the deceased signed the 2016 Will; that the Plaintiff is the executor named in the 2016 Will; and that notice of her application was published in the NSW Online Registry on 25 November 2019. They denied, however, that the 2016 Will "is a valid testamentary document" and further asserted that "it is not liable to be admitted to probate".
5. In the Cross Claim, the Defendants sought an order that Probate in solemn form of the 2013 Will be granted to Carolyn Joyce Fletcher (now known as Carolyn Joyce Dale), one of the two executors, (with Janette) named in that Will. In the alternative, they sought an order that Letters of Administration, with the 2013 Will annexed in solemn form, be granted "to such other person as the Court sees fit". No such person was nominated.
6. The Defendants launched their attack on the 2016 Will in the Cross-Claim, rather than in the Defence, asserting that the deceased lacked testamentary capacity when she made the 2016 Will; that the 2016 Will "was executed in suspicious circumstances"; and that the deceased did not know and approve of the contents of the 2016 Will.

Summary

1. The central questions that needed to be determined, and my conclusions, are: 1. Did the deceased have testamentary capacity when she made the 2016 Will? I conclude that she did. 2. Did the deceased know and approve the contents of the 2016 Will? I conclude that she did. 3. Did the conduct of the Plaintiff give rise to the application of the doctrine of suspicious circumstances and, if so, does it displace any presumption of knowledge and approval? I conclude that her conduct did not give rise to the application of that doctrine.

The Hearing

1. The hearing commenced on 23 November 2021, continued until 25 November 2021, and then resumed on 30 November 2021 and continued until 1 December 2021. Mr C P Birtles of counsel appeared for the Plaintiff whilst Mr G Waugh SC, with Mr H Morrison of counsel, appeared for the Defendants. It was listed for 6 days and was completed within that time.
2. Prior to the hearing, the parties had discussed, and agreed upon, the order of witnesses. This necessitated some flexibility as witnesses were called to suit his, or her, convenience. Some of the witnesses were unable to attend in person and the oral evidence of these witnesses was given audio-visually, using the Microsoft Teams platform. Whilst audio-visual link technology is imperfect, this part of the hearing, also, was able to be achieved in an orderly manner and with the co-operation of the legal representatives. Since the outbreak of COVID-19, almost 2 years ago, the Court has heard many cases using this technology. There was no suggestion of any prejudice to either party or compromise to the quality of justice.
3. On the fourth day of the hearing, counsel provided an agreed list of error corrections to the transcript that have been included in it as error corrections.
4. The co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated, and that the matter proceeded without interruption, is to be commended. The Court was greatly assisted by that approach, and also by the written and oral submissions made by counsel at the hearing.

Some Factual Background

1. In order to set the dispute in its proper context, it is first necessary to set out an overview of the background which led to the dispute. As with all probate disputes, a proper understanding of the events is critical.
2. Some of the information referred to below, is taken from a family tree (Ex TBNM1/257) which I do not understand to be controversial. If any facts set out hereunder are controversial, I am satisfied that they have been established by the evidence relied upon in the proceedings.
3. The deceased was born in September 1922 and was 94 years old when she executed the 2016 Will; she was about 91 years old when she executed the 2013 Will; and about 88 years old when she made the 2010 Will. Clearly, she was an elderly will-maker at the time she executed each of her Wills, although there was no suggestion that she did not have testamentary capacity at the time she made the 2013 Will or when she made the 2010 Will.
4. Little evidence was given, by either of the parties, about the deceased's life or about her character. For example, the Court knows nothing about her education, employment history, or her personality traits. There was, however, some information provided about her.
5. The deceased was married once only. Her husband, John Kennedy Hogan (also known as Ken), died on 28 August 2009. They were married in September 1955. At the date of his death, they had been married for about 54 years. There were no children of their marriage. However, Ken had two children from a previous marriage, being Valmai and Julie McPhee (who predeceased the deceased). Lachlan Xavier McPhee is a child of Julie.
6. After Ken was admitted into care in 2007, the deceased continued to live in their matrimonial home, in Eleebana, a suburb of the City of Lake Macquarie, in New South Wales, about 18 kilometres from Newcastle's central business district, on her own.
7. Ken made a Will in which the deceased was the sole executor and universal legatee. This Court granted Probate of his Will to the deceased on 23 August 2010. Following the grant of Probate, title to the Eleebana property was transmitted into the sole name of the deceased.
8. The deceased had three siblings being Frederick Powell, Joan Powell, and Robert Baden Powell. None of them is alive. Only the date of death of Robert, being 21 September 2017, was the subject of evidence. It appears that he, alone, had children, being Janette and Carolyn.

The Wills made by the deceased

1. It is necessary, next, to describe the three testamentary instruments made by the deceased, which were the subject of evidence.
2. There was no dispute that each of the Wills to which reference has been made satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased; (b) the signature was made by the deceased, in the presence of two, or more, witnesses present at the same time; and (c) two of those witnesses attested and signed the Will in the presence of the deceased.
3. Each Will had an attestation clause. It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80]. In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71].
4. As will be read, each Will is explicitly testamentary in character. Each appoints an executor, or executors, contains incontrovertibly clear specific gifts, and disposes of the entirety of the estate of the deceased.
5. The last Will in time made by the deceased is the 2016 Will. Relevantly, it provides for: 1. the revocation of all wills and testamentary dispositions previously made by the deceased (Clause 1); 2. the appointment of Janette as the sole executrix and trustee of the Will (Clause 2); 3. a pecuniary legacy to Penelope ($75,000); to Andrew ($75,000); to Leona (Faye) Letts ($10,000); to Pamela Lockhart ($10,000); to Robert Baden Powell ($200,000); to Carolyn Joyce Dale ($200,000); to Andrew Lawrie Robertson ($200,000); to Stuart Andrew Robertson ($100,000); to Lachlan Andrew Robertson ($100,000) (Clause 3); and 4. the rest and residue of the deceased's estate, both real and personal of whatsoever nature and wheresoever situate, to pass to Janette, but in the event that she predeceased the deceased, or failed to survive for 30 days, to be shared between Andrew Lawrie Robertson, Stuart Andrew Robertson and Lachlan Andrew Robertson, as shall survive the deceased, and if more than one, as tenants in common in equal shares (Clause 4).

The estate of the deceased

1. According to the Inventory of Property, a copy of which was annexed to Janette's affidavit sworn on 13 December 2019, the deceased's estate, at the date of death, comprised two bank accounts with a combined balance of $1,457,766, and the proceeds of an accommodation bond, with an estimated value of $396,874. The gross value of the estate was estimated to be $1,854,640. There were liabilities being income tax ($4,300), fees due to a firm of accountants ($990) and a reimbursement to the Plaintiff for a payment made on account of funeral expenses ($401), leaving an estate with a net value of $1,848,949.
2. At the date of hearing, the gross value of the estate was estimated to be $1,883,863: Tcpt, 25 November 2021, p 276(23-29).

The costs of the proceedings

1. There was no evidence given concerning the costs of the proceedings. However, when asked about costs, Mr Birtles informed the Court, from the Bar table, without objection, that Janette's costs, calculated, on the indemnity basis, were estimated to be $270,000: Tcpt, 25 November 2021, p 210(03-05). Mr Waugh SC informed the Court, from the Bar table, without objection, that the Defendants' costs, calculated, on the indemnity basis, were estimated to be $189,000: Tcpt, 25 November 2021, p 210(14-15).
2. Counsel for Janette, without disagreement, stated from the Bar table that the costs of the proceedings should not be dealt with, whatever the result of the proceedings, and the question of how costs should be borne should not be resolved until submissions on costs were made after these reasons are published: Tcpt, 25 November 2021, p 211(23-30).
3. Naturally, I shall abide the request and not deal with costs in these reasons. However, I commend to the parties that, if possible, further argument, with the obvious increase in costs, and the consequent delay in administering the estate, should be avoided.

Dramatis Personae

1. The question of the deceased's testamentary capacity and her knowledge and approval falls to be assessed as at 29 October 2016, when she made the 2016 Will. Naturally, not all of the evidence is limited to that date. Events surrounding the making of the 2016 Will, in that month, in the 12 months before, and the few months after that date, are of some relevance to an evaluation of the deceased's capacity. It would be wrong to confine the evaluation narrowly to the events of October 2016.
2. There is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker's capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.
3. This does not mean that there is no wisdom in the view that "the vital evidence is very often not given by medical experts, but is given by experienced lay observers … [and] that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes" (Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Young JA)); or that an experienced solicitor's evidence is capable of being "valuable evidence of testamentary capacity" because an "experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path": Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).
4. The following persons played a part as a party, or a witness, or have been referred to, otherwise, in the proceedings. First, I shall identify the witnesses who gave evidence in the Plaintiff's case. Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined.
5. The Plaintiff is the niece of the deceased. In her affidavit sworn on 10 June 2020, she described her occupation as "Criminal Investigator". She explained her job as being "in the area of fraud … So we intercept fraudulent behaviour, investigate fraudulent behaviour, prepare briefs of evidence for the Commonwealth Director of Public Prosecutions, and refer briefs of evidence, and take those matters to court. Sometimes we appear in court": Tcpt, 24 November 2021, p 158(02-09). She attended the hearing in person.

Persons who did not give evidence and documents that were not produced

1. Because of submissions that were made, it is necessary, next, to identify some persons who did not give evidence and refer to documents that were not produced.
2. As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.
3. In Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, Kitto J observed, at 308, that: "… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. …"
4. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.
5. In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.
6. Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party's case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party's case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.

Documentary evidence

1. In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material tendered, particularly going to the deceased's medical condition. There were hospital records, some records from Maroba, and some contemporaneous documentary material produced by Mr Hodgins, that was relied upon, and which go to events leading to the execution of the 2016 Will.
2. There was no dispute as to the authenticity of any of the documents, and all but one, were tendered without objection: Ex TBM (the bundle containing the medical documents) and Ex TBNM1 (the bundle containing the non-medical documents). Other than on one matter, to which Dr Simpson referred, neither party suggested the underlying records were incorrect or unreliable.

Documents that were not produced

1. There is one issue relating to the failure to produce documents that requires detailed consideration.
2. A subpoena to produce documents was served on Mr Hodgins on 26 March 2020. It required various documents to be produced, including any will or testamentary instrument, of the deceased; documents being, or purported to be, documents relating to the preparation, or execution, of a will or other testamentary instrument, by, or on behalf of, the deceased; and documents relating to fees charged for services provided in connection with the preparation or execution of a will or other testamentary instrument on behalf of the deceased.
3. Initially, the only document Mr Hodgins produced, in answer to the subpoena, (other than the original of the 2016 Will), was a tax invoice dated 28 October 2016. He had responded to the subpoena by sending it to the Registrar: Ex TBNM1/238-239. The tax invoice was included in Subpoena Packet S1.
4. Later, there were some other documents produced by Mr Hodgins to which reference will be made later in these reasons.
5. Evidence was given by Mr Hodgins, and otherwise, that Janette had attended his office in October 2016 and that she had given him "two sets of - of written notes which were contained in separate sealed envelopes and she also gave me some email correspondence from Greg Wilson, solicitor, together with a copy of a draft will that - that Wilson had prepared for - for Mabel": Tcpt, 23 November 2021, p 31(30-33).
6. Mr Hodgins has been unable to locate, and produce, the instructions, said to be in the handwriting of the deceased, provided to him by Janette. He stated that these handwritten instructions had been clipped together, with his own handwritten file note from the day the 2016 Will was executed, but none of these documents have been able to be found either: Tcpt, 23 November 2021, p 38(40)-(42). He gave evidence that the documents were then taken back to his office, on the following Monday, and were put with the file with written instructions for his assistant, Mr Creamer, on what to do with the documents and the Will: Tcpt, 23 November 2021, p 39(04-09). (There was unchallenged evidence given that he had taken notes on the day the 2016 Will was executed.).
7. Two separate files were opened at his office for the deceased's matter: Tcpt, 23 November 2021, p 33(25-26). Mr Hodgins explained that there should only have been one file opened, but for some reason, two files had been opened in the matter and given the same file number. The documents were not able to be found in either of the two files: Tcpt, 23 November 2021, p 39(26-30).

The Principles regarding Evidence

1. I next turn to some legal principles that I have remembered in my assessment of the witnesses who gave evidence.
2. As in most probate disputes, the personality, state of mind, desires, and prejudices, of the central person, namely the deceased; the relationship with persons for whom she, or he, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).
3. It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]: "… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. 'Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough': John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66: 'Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.' Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will."

The Witnesses

1. It is necessary next to examine the evidence bearing upon instructions for, and the execution of, the 2016 Will. In most probate suits, and in this one, the outcome of the proceedings turns largely upon an assessment of the evidence of the witnesses. I shall also set out my impression of each of these witnesses.
2. The first witness called to give evidence was Mr Hodgins, the solicitor who drafted the 2016 Will. On 24 February 2020, Lindsay J had made an order that required him to file and serve an affidavit going to the circumstances of the preparation and execution of the 2016 Will.
3. Of course, he is an attesting witness to the deceased's signature on the 2016 Will. As such, he is a witness of the Court: Boyce v Bunce [2015] NSWSC 1924 at [122], [178], [180]. In this regard, Lindsay J wrote at [184]: "The evidence of an attesting witness, as a witness of the Court, is in the control of the Court. An attesting witness, in that character, is not in the service of any adversarial party."
4. I also remember that where, as in this case, the solicitor is aware, prior to meeting with the deceased that there is a potential issue as to capacity, the cautionary words found in a Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98, of Kroft J in the Manitoba Court of Queen's Bench, (at 107) are important: "Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood."
5. Mr Hodgins made two affidavits that were read in the proceedings. The first was one sworn on 17 December 2019, being one which might be described as a general form of affidavit of attesting witness going to the due execution of the 2016 Will. It really did no more than authenticate the deceased's execution of the 2016 Will and set out the formalities of the process involved in its execution.

The medical evidence

1. In Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [195] - [196], Campbell JA wrote: "Even when medical evidence is available that bears upon whether a person had capacity, for some legal purpose, it is frequently expressed in terms appropriate for a medical diagnosis. Expert evidence can be very helpful in identifying the circumstances from which the diagnosed condition arises, and how it manifests itself in the patient's life. But the legal test for incapacity that is applicable in some particular litigious circumstance is usually not expressed in terms of medical diagnosis. It is for the judge to decide, on the basis of the totality of all the evidence, both lay and expert, whether the particular relevant legal test for incapacity has been satisfied. In Re Estate of Griffith (Dec'd); Easter v Griffith (1995) 217 ALR 284 at 295, Kirby P said, concerning testamentary incapacity: 'In judging the will propounded, and the challenge to it, the court must consider all of the facts proved which are relevant to the testamentary capacity of the testator. It must not be deflected into a consideration of medical evidence, still less of jargon, as to whether particular conditions such as "delusion" or "paranoia" have been established.' Though these remarks were made in a dissenting judgment, they are a correct statement of principle. … The need for more than medical evidence to be taken into account in deciding whether incapacity has been established has been recognised, in litigious contexts outside that of limitations, in Kerr v Badran [2004] NSWSC 735 at [48] ‑ [50]; Revie v Druitt [2005] NSWSC 902 at [34], Ric Developments Pty Ltd (t/as Lane Cove Poolmart) v Muir (2008) 71 NSWLR 593 at 598 [22], 603 [48] and Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]."
2. Thus, even with an assessment by a medical expert, the question of testamentary capacity, ultimately, is a question of fact for the trial judge, and that lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303 at [86] and [128] (White JA, Bathurst CJ and Gleeson JA agreeing).
3. Expert medical evidence, or the opinion of an attesting witness, as to competency, on its own, is not decisive: Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).
4. Dr Sales was the only relevant medical expert who had seen, and treated, the deceased who was cross-examined. He appeared remotely as a witness in his professional capacity. He clearly had no axe to grind in the case. I am completely satisfied as to his veracity and that I can rely on his evidence in support of my conclusions. He was a genuine and convincing witness.

Submissions

1. I have dealt with some of the submissions made by both counsel in relation to some of the aspects of the matter.
2. In relation to other aspects not already dealt with, counsel for the Plaintiff made the following submissions: 1. the Banks v Goodfellow test does not necessarily require knowledge of each particular asset and the value of that asset particularly where a testator is assisted in management of their affairs by others: Kerr v Badran; Estate of Badran [2004] NSWSC 735 at [49]; 2. the deceased's conversation with Mr Hodgins, the way in which the instructions were recorded (in the deceased's own hand) and the terms of the Will itself show that she satisfied the affirmative elements described in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65; 3. no delusion is pleaded; 4. the 2016 Will is rational on its face, simple in terms of legacies and a gift of residue, and does not exclude any person naturally having a claim on the deceased's bounty; 5. the 2016 Will is duly executed and the presumptions arising from due execution apply; 6. the crucial period for determination of the issues in this case is October 2016; 7. the lay evidence of the activities, conversations, family circumstances and the relationships of the deceased, and evidence of treating doctors are usually of far more value than reports of retrospective experts: Revie v Druitt [2005] NSWSC 902 at [34]; Kerr v Badran [2004] NSWSC 735; 8. the evidence of Mr Hodgins is valuable when considering testamentary capacity, as solicitors become attuned to recognising when the capacity of a client may be suspect: Drivas v Jakopovic at [52] (Macfarlan JA with whom Bell P and McCallum JA agreed); Zorbas v Sidiropoulous at [65]; [89] 9. to the extent to which it is found that the deceased suffered from a medical condition which affected her cognition, it was not of such a degree and severity to make her unequal to the task of disposing of her property by her Will; and 10. if suspicious circumstances exist, they are met by the fact that the Will was read over and explained before it was executed; 11. the Plaintiff submitted that, given the deceased was disorientated when she was in the Acute Care Ward of John Hunter Hospital from 5 to 16 September 2015 and the Montreal Cognitive Assessment was administered, but was not disorientated when she saw Mr Hodgins on 29 October 2016, there was an obvious improvement in the deceased's cognition over that time frame; 12. similarly, the Plaintiff submitted that the deceased's functional abilities prior to admission to John Hunter Hospital and her functional improvement after she obtained her own room and hearing aids demonstrate that she did not suffer from a moderate to severe dementia in October 2016; 13. according to the Plaintiff, the deceased's conversations with the Plaintiff, Mr Hodgins, Mr Creamer, and other witnesses, demonstrate that she had an appreciation of the act of will making, she understood the nature and in general terms the value of her estate and she had an appreciation of the natural objects of her testamentary affection. The spontaneous giving of reasons by the deceased shows that as a matter of fact she engaged in a reasoning process in reaching her testamentary decisions; 14. the Court should not find that the deceased suffered from a moderate to severe dementia at the time she made her 2016 Will: Tcpt, 1 December 2021, p 331(12-15).

The Law

1. The object of the Court is to identify the instrument, or instruments, which represent the last will of the deceased as a free and capable testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [44]. The focus for attention is upon identification of her final, formally expressed testamentary intentions.
2. I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141: "The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details."
3. In order to obtain probate in solemn form, a person who propounds a will has the legal, or persuasive, burden of satisfying the court that it is the will of the will-maker. The standard of proof is the balance of probabilities. The propounder of the will must show, on the balance of probabilities, that it is the last valid will of the will-maker.
4. The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory, but is derived from case law. Nor does the Court adhere to the language of testamentary capacity in the case law as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham at [6] and [133]-[134].
5. Furthermore, how the elements would be regarded as having been established, in a given situation, must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.
6. Before proceeding further, it is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."

Knowledge and approval

1. In addition to showing that the deceased had testamentary capacity, the Plaintiff, as the propounder of the 2016 Will, must also show that she knew and approved its contents. This means no more than that the relevant Will represented the deceased's testamentary intention.
2. The requirement for knowledge and approval is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. The requirement of knowledge and approval only arises for consideration if the Court is satisfied that the will-maker had testamentary capacity.
3. Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. … Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."

Suspicious circumstances

1. The principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement reference to authorities. His Honour said (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
2. I have also found the following passage in Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017, A Cheung J, at [71] - [74] to be useful: "Before I move on to deal with the facts, it is necessary to observe that the whole point of the second rule in Barry v Butlin, when properly understood, is to ensure that the testator did know and approve of the contents of the will. That is the ultimate aim. The rule is a rule of evidence and indeed a rule of good common sense. … All circumstances that are relevant to the issue of knowledge and approval must be examined with vigilance and jealousy. But the standard of proof remains the civil standard, rather than proof beyond reasonable doubt. It is important to remember that what brings the second rule in Barry v Butlin into operation must be circumstances attending, or at least relevant to, the preparation and execution of the will itself: Re R, deceased [1951] P 10, 17. However, once the suspicion of the court is aroused, the court would look at the entire evidence with the appropriate degree of vigilance and jealousy, in order to determine whether, on the balance of probabilities, the testator did know and approve of the contents of the will. The entire evidence must, by definition, include matters and circumstances not attending, or even relevant to, the preparation and execution of the will itself. Sometimes, those extraneous matters and circumstances are also referred to as "suspicions" or "suspicious" circumstances. Indeed, in the present case, counsel on both sides have used those expressions rather liberally. I have no objection to the usage of such expressions so long as it is remembered that the "triggering" circumstances are those attending, or at least relevant to, the preparation and execution of the will itself. Once such triggering circumstances are present and the court's suspicion as to whether the testator really knew and approved of the contents of the will is aroused, the court must examine the entire circumstances of the case. Some of these circumstances may give rise to "suspicions" in the very general sense of the word regarding whether the testator did know and approve of the contents of the will. But whether they do have such an effect or not, it is really a question of weight to be attached to all the relevant circumstances in determining where the balance of probabilities lies in terms of the issue of knowledge and approval. One must not be misled by the requirement that the court's "suspicion" be dispelled into thinking that unless each and every relevant or "suspicious" circumstance has been satisfactorily explained, a will can never be successfully propounded, or more particularly, the court can never be satisfied that the testator has known and approved of the contents of the will. To do so would be to forget the ultimate aim of the exercise, namely to find out whether the testator really knew and approved of the contents of the will. Relevant or "suspicious" circumstances are pointers. They are not the end in themselves. For the court's ultimate task is to see whether the court's "suspicion" can be removed, ie the suspicion that the testator did not really know or approve of the contents of the will. Its task is not to see to it that each and every "suspicious" circumstance surrounding the making of the will is satisfactorily explained, even though the two are to some extent, depending on the facts of each case, inter-related. One can easily imagine situations where because of the paucity of the evidence available or otherwise because very little is known about a testator, the court simply does not understand why a testator chose to dispose of his estate in the way set out in his will, yet there is the clearest evidence that he knew and approved of the contents. In those cases, the court's duty is to pronounce in favour of the will."

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