36 Drs McMurdo and Peisah were the experts called by the defendant. Dr McMurdo considered that the deceased was on a downhill path with progressive dementia. This was compounded by regular alcohol consumption and an epileptic phenomena causing periods of confusion. His difficulty was to determine the time at which the deceased became incapable of making a will. He had no doubt that she was incapable in 1995. Having regard to the opinion of Dr Storey of 7 February 1992, he thought it more probable than not that she was not fit to prepare a will on that date and almost certain that she was not fit to do so thereafter because of "progressive further mental deterioration". His doubts about his opinion came about to some extent as a result of the affidavit evidence of Mr Davenport, but as I have said that evidence is of little value apart from the fact that the deceased presented to him as being in control of her faculties and understanding what she was doing, but that was really upon appearance and some small conversation rather than upon any examination by questioning. The fact that Mrs Godfrey had discussed her requirements for her March will with Mrs Spratt did not cause him to change his view.
37 Dr Peisah came to the conclusion that the deceased would not have had capacity in 1990 and she did not have capacity in 1995. Like the others she was less certain about the position in 1993. She considered that the deceased would, in 1993, have understood the purpose of a will and I think that is not in doubt. She thought that as Mrs Robinson had been managing the deceased's affairs for some years prior to 1993, it was more probable than not that Mrs Godfrey did not know the nature and extent of her assets, although she noted that Mr Davenport was satisfied that she did. In view of the evidence of Mrs Spratt as to conversations about the units and discussing the outgoings and payments for outgoings I do not think that Dr Peisah's opinion as to lack of knowledge of the nature and extent of her assets was correct so far as Mrs Godfrey was concerned in 1993. I would find that it was more probable than not that Mrs Godfrey understood the assets which she had, which were basically real estate assets, although it was probably unlikely that she understood their value. That is, however, not unusual in persons as they get older, knowledge of the location and identity of particular real estate assets and some general understanding of their value would be sufficient. The more serious question was whether or not Mrs Godfrey "disposed of her assets with understanding and reason". In other words did she understand the effect of the dispositions: Timbury v Coffee (1941) 66 CLR 277 at 280. Without the evidence of Mr Davenport, Dr Peisah thought it unlikely she would have done so. She noted that the significant changes between the November 1990 and the 1993 wills. She thought that it would have been important for Mr Davenport to satisfy himself that Mrs Godfrey understood fractions and roughly what the changes in the shares of the estate represented and why she made these changes. As I have said, contrary to the views of Mr Davenport I regard the change of fractions as significant and not necessarily easy to comprehend so far as changes in actual benefits were concerned. She thought that the change of wills between March and June showed a lack of consistency, perhaps brought about by family conflicts and that her frontal impairment would make her susceptible to such family conflicts. Even accepting the evidence of Mr Davenport in his affidavits, Dr Peisah considered it was more likely than not that the deceased did not have capacity in June 1993. There was certainly no reason for her to change this opinion having regard to the evidence which Mr Davenport gave from the witness box.
Discussion
38 The first matter which I think is of some significance is to decide whether or not the copy of will upon which the changes were made, which brought about the June 1993 will, was the 1990 will, or the March 1993 will. I have come to the conclusion that it should be found that it was the 1990 will. The reasons for this are that Mr Davenport said that there were numerous changes made on the copy will in question. There were six on the 1990 will and three on the 1993 will. He said that one share changed from one half to one quarter. It was only from the 1990 will that, by the wording, this might be thought to have happened, although in fact it was not such a change, but from the one-ninth to one-sixteenth. There were changes to beneficiaries named in the 1990 will and there was only a change of one beneficiary in the two 1993 wills. On the other hand Mr Davenport gave no evidence as to discussions about the Wamberal property and of course it was not mentioned in the March 1993 will. There is, however, also to be taken into consideration the fact that in the residuary clause 4 of the 1990 will and in the dispository clause 3 of the June 1993 will, the word "wheresoever" appears and does not appear in the March 1993 will. I find that the 1990 will was the one upon which the June 1993 will was based.
39 There is a further question as to the significance of this , if any. Counsel for Mrs Spratt says that the difference is significant as it shows that the testatrix overlooked the will which she had made less than three months earlier when giving instructions for her June will to Mr Davenport. As against that it was put that she may not have wanted Mr Davenport to know that she had gone to a different solicitor to make her will in March, but it is just as likely that she would have said she made a mistake and had come back. There is also to be taken into account the fact that the deceased made a will in September 1994, precisely in the terms of the 1993 will. Looking at this from one perspective it might tend to show that the June 1993 will was a rational one if fifteen months later the deceased purported to make one in precisely the same terms. As against that the deceased must have thought in 1994 that she was altering something and, if she had no memory of the 1993 will, it might indicate either that she had deteriorated substantially in the fifteen months or that she never really understood the effect of what she was doing in June 1993.
40 While it is true that the deceased discussed with both Mrs Robinson and Mrs Spratt some financial matters such as a payment of accounts, those discussions do not reveal any deep understanding of these matters other than that the deceased agreed that the accounts should be paid. The making of the two wills in 1993 so close to each other in itself indicates some question about capacity. Apart from the fact that one sister might have been in more control than the other on the two occasions, there is no explanation for the significant change in the proportionate share going to Eileen. If the deceased had some discussions with Mrs Spratt about the beneficiaries under the March will, and I accept that she did, then the change of proportionate share to Eileen, less than three months later, is difficult to understand. Taking the estimated values at the date of death, the approximate change in entitlement between a share of 25% and one of 12 ½% is the difference between $375,000 and $187,500. The difference between 6.25% share and an 18.75% share is the difference between $93,750 and $281,250. These are not minor adjustments. Though counsel for the plaintiff constantly spoke about the adjustments being just fine tuning, they are far more than that.
41 I have come to the conclusion that the deceased was aware that she was making a will in June 1993; I think the evidence of Mr Davenport is sufficient to establish that. I think it likely that the deceased was aware in general terms of the nature and extent of her estate insofar as she was aware of the nature of her assets and might have had some general idea of their value, although that is not established. As the identity of the beneficiaries did not change significantly over the period, it is likely that the deceased was aware of those who might be thought to have a claim on her bounty. I do not think that it has been shown that Mrs Godfrey was able to evaluate and did evaluate the strength of the claims of those persons who took under the 1993 wills. In other words I do not think it has been established that she sensibly evaluated the claims and that she had any sensible basis for making the changes that she made to the will in March 1993 and the next will in June 1993. As I have said, contrary to the evidence of Mr Davenport, the changes between the 1990 and the 1993 wills are quite difficult to comprehend. When the effect of Mr Davenport's evidence on the reports of Dr Rosenfeld is taken into account then the strength of that doctor's opinion - to a large extent falls away. The evidence of medical practitioners who saw the deceased around the important times is often more valuable than the evidence of those who are relying on reports of others. In that regard I consider the reports and letter of Dr Storey to be very significant. There is no basis to suggest that she would have written a false letter in 1992. What she said there is of considerable significance and goes against a finding of capacity in 1993 as the condition is of decline, not recovery. I accept the lay evidence as to good days and bad days and take note of the fact that the expert witnesses accept this as well. It is, however, difficult to understand how, if 23 March 1993 was a good day, 4 June 1993 was a good day as well, without any explanation being given for the changes made from one date to the other. The clear psychiatric evidence is that the deceased was on a downhill path from 1989 onwards as a result of dementia. There were some better periods but the path was always downwards. I accept that the court should be careful in determining that a deceased person did not have testamentary capacity at the date of making a will. It is easy to cast doubts upon that capacity in respect of people as they get older. The average age of the community is increasing and people wish to continue to be thought responsible for their own affairs and not to have people casting doubts upon this by reason some particular matters of somewhat strange behaviour. Re Estate of Griffith (deceased) Easter v Griffith (unreported NSW CA 7 June 1995). I must, however, bear in mind that had it not been for the affidavit evidence of Mr Davenport it is unlikely that any of the medical witnesses would have considered that the testatrix had capacity in 1993 and insofar as they have doubts about this they would have expressed those doubts in far stronger terms had they known that there were really no facts upon which Mr Davenport's statements in his affidavit were based. I am not satisfied that the requirements for capacity as set out in Banks v Goodfellow [1870] LR 5 QB 549 and followed since have been made out. That is because I am not satisfied the deceased understood the nature and effect of the dispositions in the will and the changes made by it. I consider this lack of understanding was caused by dementia. The medical evidence leads to this conclusion. Insofar as the plaintiffs stated that there was a clear and obvious change in the capacity of the deceased from the beginning of 1994 I do not accept that evidence.
42 It follows from this that the claim for probate of the will dated 4 June 1993 should be dismissed and a grant of probate in solemn form of a copy will dated 26 November 1990 should be made. Due execution of that will was proved through the evidence of Mr Davenport and clear evidence of the destruction of the original will was given; that destruction taking place on the execution of the will dated 4 June 1993.
43 The plaintiffs are entitled to elect whether to take a grant of probate of the 1990 will or renounce. This can be left in the hands of the Registrar. I will hear submissions on costs. Orders will otherwise be made as follows.
Orders
44 Order the statement of claim be dismissed.
45 Order that probate in solemn form be granted of a copy of the will of the deceased dated 26 November 1990.
46 Order that it be referred to the Registrar to complete the grant.
47 Exhibits may be returned other than Exhibits A and B.