Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 | Case summary

Supreme Court of NSW|2017-03-14|Before: Kunc J

Summary

Francis James Ryan ("Frank") died on 23 July 2014 at the age of 90. Without intending any disrespect, I shall refer to him and other family members by their given names.
The only issue in these proceedings is whether Frank had testamentary capacity so as to be a free and capable testator when he made a will on 24 January 2013 (the "2013 Will"). If he did not, there is no dispute between the parties that a will he made on 1 June 2011 (the "2011 Will) should be admitted to probate.
The plaintiffs are Frank's three surviving adult children. They share in Frank's estate equally under the 2011 Will. However, under the 2013 Will Frank divided his estate equally between the plaintiffs and his de facto partner Ms Deirdre Molloy ("Ms Molloy"). The plaintiffs were represented by Mr T Morahan of Counsel.
The defendant is a solicitor ("Ms Dalton"). Ms Dalton drew both the 2011 Will and the 2013 Will. She is the executor of the 2013 Will (but not a beneficiary). Ms Dalton was represented by Mr M Hadley of Counsel.
This is not a straightforward case. There is a great deal of reliable, contemporaneous evidence (including Frank's treatment notes at the nursing home in which he lived) and uncontradicted retrospective medical evidence that suggest Frank lacked testamentary capacity in January 2013. On the other hand, Ms Dalton's contemporaneous notes and her recollection of her attendances on Frank to take his instructions point in the opposite direction.
In looking at the totality of the evidence, the Court is not satisfied that Ms Dalton has satisfied the legal burden of demonstrating that the 2013 Will is the last will of a free and capable testator. That burden would be discharged by proof on the balance of probabilities, but allowing for the seriousness of the issue of the matter to be proven. Even taking into account the relative simplicity of the 2013 Will, the Court is not left with just a residual doubt. Rather the Court's doubt is so substantial as to preclude a belief on the balance of probabilities that the 2013 Will is the last will of a free and capable testator. While the Court readily accepts that Ms Dalton was careful in taking her instructions, her evidence does not decisively outweigh the other evidence. This is because while it demonstrates that Frank was able to give her instructions, it does not show that the she took those instructions at the time the 2013 Will was executed in a way that would have dispelled the doubt created by all the other evidence about Frank's mental state.

The witnesses

The plaintiffs and other family members were not challenged in cross-examination about their descriptions of Frank's condition from time to time. Their evidence is also broadly consistent with the various contemporaneous documentary records of his condition. I accept their evidence.
Ms Molloy accepted in cross-examination that there was an arrangement or understanding between her and Frank (albeit never formally recorded in writing) that they would be financially independent and would not have recourse to each other's estates. Her evidence was that "it was usually Frank that brought it up". I accept the plaintiffs' submission that she was trying to downplay her concerns about Frank's condition from time to time. Insofar as she did so, I prefer the contemporaneous notes of others made about her expressions of concern. Significantly, she did not give any evidence of her recollection about Frank's mental state at the time he gave instructions for and then executed the 2013 Will.
Ms Dalton was unshaken in cross-examination. No submission was put (rightly, in my view) that her evidence was a fabrication. I accept her evidence with one exception (as to which see paragraph [79] below).
Having regard to the matters set out in paragraphs [8] to [10] above, I find the facts to be as set out in paragraphs [12] to [59] below. I consider Associate Professor Wijeratne's expert evidence in paragraphs [64] to [84] below.

The facts

Frank was born on 3 September 1923 in Picton.
Ms Molloy was born on 15 April 1939.
Frank married Patricia Corcoran, who died in 1978.
In 1980 Ms Molloy separated from her husband.
Ms Molloy first met Frank in about 1983 when she was volunteering for the Salvation Army Red Shield Appeal. Frank was at that time the coordinator of the Blayney Shire Red Shield Appeal.
In 1988 Ms Molloy and Frank commenced a relationship.
In 1990 Ms Molloy divorced her husband.
In February 1990 Frank moved into Ms Molloy's house in Mandurama, New South Wales.
Frank had four children, one of whom died of cancer in 1990. The surviving children are the plaintiffs: Joseph (known as Joe) (now 67), Bernadette (now 66), and Jacinta (now 58).
In 1994, Frank retired from running his own bakery. One legacy of Frank's working life was poor hearing. He wore hearing aids in both ears.
In 2009-2010, Joe noticed that some of Frank's normal habits appeared to be changing. He appeared to be tired, sleepy and often fell asleep where he was for long periods of time.
In May 2010, Frank had a knee replacement at Dudley Hospital in Orange, New South Wales. His discharge summary of 4 June 2010 states: "Mild post-op confusion - mild cognitive impairment - partner concerned for several mnths (sic) about his short term memory. Dementia screen including ct brain arranged and referral to memory clinic as out-patient. … Mini mental - 29/30."
On 27 July 2010, Ms Molloy took Frank to see a geriatrician, Dr Ireland. The doctor's report of that date includes: "Mr Ryan admits to some minor concerns about his memory but he dismisses these as appropriate for his age. With his permission, I spoke with Deidre privately and she outlines much more serious difficulties. These had been coming on gradually over the last 2 or 3 years and are really having quite a significant impact on both of their lives. He is struggling to remember names and at times also to recognise less familiar faces. His short term memory is poor. He is not always aware what day it is or what has happened recently. He has a lot of trouble finding things around the house and has been quite unable to learn how to use a previously familiar piece of baking equipment. He is focusing on the past and repeating stories many times without apparently being aware. Perhaps the most disabling symptoms however have been a growing inertia and apathy. Deidre frequently comes home from a long day of physical work to find nothing done and Frank will be sitting snoozing with no attempt to entertain himself. For a long time he has also been completely disinterested, in Deidre's mind, in his own finances and future planning. She feels there is some disharmony amongst Mr Ryan's children which will only make this more complicated. He does have a Will but no Power of Attorney. … Mr Ryan does have sleep apnoea but is extremely sleepy by day and can fall asleep mid sentence. He will nap readily if left unstimulated. … … On examination Mr Ryan scored 28/30 on MMSE and had done similarly well in hospital. He remembered the test from hospital. He performed poorly on copy design although claims this has always been an area of difficulty for him. He remembered adequate information from a short story and retained it after a delay. His tests of immediately memory were normal as was his ability to find similarities between items … … A CT brain in early June showed fairly pronounced atrophy and some microvascular ischaemic change. Summary and Management Suggestions Mr Ryan is an 87 year old man with cognitive changes becoming increasingly evident over the last few years. These predominantly affect short term memory and more frontal type feature of motivation and initiation. Despite his excellent scores on formal testing, these features could represent an early dementia, although with his pronounced sleepiness and the long duration of his use of CPAP I did think a review of that was appropriate with a sleep physician. … Assistance with the legal issues surrounding Mr Ryan's finances is important but I believe he would be competent to discuss the issues of a Power of Attorney which he should obtain. I am very hopeful that improved management of his sleep apnoea (if that is found to be deficient), less alcohol and a more engaged and active life will help Mr Ryan overcome many of his cognitive difficulties. I am however concerned that there may be underlying early dementia present and would certainly like to review him early next year."
On 1 June 2011, Frank made the 2011 Will appointing Joe, Bernadette and Jacinta as executors and trustees and dividing his property between them in equal shares. There was a gift over to Jacinta's son Max if she did not survive Frank. At the same time he also executed an advanced care directive and an enduring power of attorney. The enduring power of attorney was in favour of Ms Molloy. All of these documents were made in the presence of Ms Dalton.
On 24 June 2011, Frank underwent examination by an aged care assessment team which recommended him for low level residential care. The assessment states: "42. Comments regarding the overall assessment and care recommendation for the client Mr Ryan lives in the village of Mandurama with his partner (Deirdre). They have a large house block, with numerous animals. Mr Ryan enjoys cooking at times, has been a baker by trade. He also like to chop the wood for their wood fire, but this is becoming increasingly risking [sic]. Unsteady on his feet on rough surfaces. Deirdre is often away at the farm, and leaves Mr Ryan home alone. He enjoys attending Legacy, Lodge & RSL meetings, he is also on the local Hall Committee. Mr Ryan continues to have an interest in his Bakery in Blayney. He uses a walking stick at times, and has had several falls in the last 6 mths. Mr Ryan requires assistance to climb stairs. His vision is poor; he is known to Vision Australia. He has bi-lateral hearing aids. Deirdre has been doing the housework, laundry etc. Uses a CPAP at night for sleep apnoea; naps during the day. Mr Ryan would like to be on the waiting list for Lees Hostel in Blayney, and may consider respite if it is available. A CACP at home may reduce Deirdre's concerns re safety when she is at the farm. Meds - Warfarin, Isoptin, Vastin, Vit D, Fish Oil, Glucosamine, Macuvision, Bio Magnesium."
In July and August 2011, Frank took his annual holiday with his children. First he visited Joe in Sydney and then flew up to Brunswick Heads to visit Bernadette and Jacinta (who lived there together), then flew back to Joe in Sydney before returning to Mandurama. During the visit to Brunswick Heads, Jacinta records that Frank told her and Bernadette "I want to talk to you girls about my will arrangements. I have appointed all three of you as my executors and the estate will be divided equally between the three of you. I have made provision for Max. Just in case something happens to you, Jacinta, Max will finish his education."
Bernadette says that during that 2011 visit, Frank said to her "I've left everything to the three of you equally [referring to his children]. I didn't include Deidre as we agreed to keep our finances and property separate. Deidre has a lot more than me and we agreed not to leave anything to each other."
Frank's grand-daughter Yvette Kellett (who was not required for cross-examination) also deposed that in July 2011 Frank told her, in relation to his 2011 Will, that he was not providing for Ms Molloy because he had already provided for her.
Joe says that Frank told him in or about July or August 2011, in relation to the 2011 Will: "I want the three of you (meaning my sisters and myself) to be executors and to share everything equally. I have already looked after my friend Deirdre." Joe also says Frank said "Deirdre and I have had an agreement for years to be completely separate financially and neither of us will make a claim against the other's assets".
In relation to the visit with Joe in July to August 2011, Rosslyn (Joe's wife and not required for cross-examination) also gave evidence that Frank reiterated the agreement that he and Deidre had maintained for years to be completely separate financially, and that neither of them would make a claim against each other's assets. She recalled Frank saying words to the effect "I have already looked after my friend, Deidre Molloy".
As Ms Molloy ultimately acknowledged in cross-examination, there was an agreement or understanding between Frank and her to the effect of that referred to in paragraphs [28], [30] and [31] above.
On 8 September 2011, Frank was admitted to Lee Hostel, Blayney.
On 20 October 2011, Frank underwent a cerebral MRI which was reported as showing small vessel cerebrovascular disease and moderate cerebral atrophy.
In that same month Frank completed a claim form in relation to his disability pension. This included a diagnosis by his GP, Dr Hazelton, dated 29 October 2011 that Frank had "micro vascular ischaemic cerebral disease with significant memory loss" and "visual impairment".
From around mid-2012 Joe says that Frank, in the course of telephone calls, would ask which son he was speaking to. Joe's brother Francis had died in 1990 and had been dead for about 25 years. From this time on Joe says that Frank often called him Francis.
On 24 August 2012, Frank was reported in his hostel notes as wearing his pyjamas over his daytime clothes. Thereafter he was regularly described as confused, for instance believing that any visitor was for him, and that at times he was overfamiliar with some female residents.
Joe says that in about October 2012 he and his wife drove up to Lee Hostel to visit Frank. On that occasion Joe says that the care manager had said to him words to the effect "Frank's dementia had progressed and is significantly impacting him". During that visit Joe reported that Frank's behaviour seemed unusual at times, demonstrating agitation and aggression.
In relation to the October 2012 visit, Rosslyn confirms Joe's evidence that the manager at Lee Hostel requested to speak privately with them regarding Frank and said words to the effect that his dementia had progressed and was significantly impacting on him.
Frank's notes at Lee Hostel for 7 December 2012 record "Frank left hostel for holiday with Deirdre and son at 10.30am ...". The evidence of both Joe and Rosslyn was that, while he had discussed with them changes to the 2011 Will, during the 2012 holiday with them he did not mention that he was thinking of changing the 2011 Will.
On 14 December 2012, Joe used a wheelchair to put Frank on a plane to stay with Bernadette at Brunswick Heads over Christmas. He stayed until Bernadette accompanied him back to Lee Hostel in Blayney at the start of January 2013. Bernadette's observations of Frank during that visit were that "He was constantly struggling and suffering with serious dementia related problems. He had very serious memory and cognitive problems and much more". Joe says that when he called Frank during Frank's stay at Brunswick Heads, Frank was confused and didn't seem to know who he was, who Joe was or where he (Frank) was.
In relation to Frank's visit to Brunswick Heads in late 2012, Bernadette's partner Greg Wilding also gave evidence as to how disoriented Frank was during his visit. Mr Wilding was not required for cross-examination. His evidence was that Frank was "in a state of almost permanent disorientation, not knowing where he was or who was around him".
Jacinta's evidence about the Brunswick Heads visit was that Frank was completely reliant and dependent on her and her sister. He needed care and assistance for all of his needs, such as toileting, washing, dressing, moving, teeth and hearing aids. He only spoke in short sentences and appeared quite confused. On one occasion Jacinta found him holding the remote control for the air conditioner to his ear, yelling into it as if it was a mobile phone saying words to the effect of "Speak up will you. These bloody hearing aids (adjusting his aids with his other hand). Hang on, speak up, who do you want?". During the visit Jacinta says that Frank was confused, disoriented and had trouble staying awake. He was not able to recognise her sister or herself and was not capable of holding a conversation.
While Frank was with them at Brunswick Heads in December 2012, Bernadette and Jacinta arranged for Ms Sandra Gregory, an aged care level 3 trainer with a speciality in dementia and palliative care to come and help them care for Frank. Ms Gregory was not required for cross-examination. Her evidence was that Frank "required constant care and attention … couldn't stand without assistance and even with a walking frame required assistance to move about … could not be left alone at any time he was awake. He required constant care."
Frank's Lee Hostel notes record him returning the Lee Hostel on 2 January 2013 at 4.00pm. Those notes record various matters about Frank in the following days which are as follows. To give a sense of how those notes fit against the chronology of Frank making his 2013 Will, I have interpolated events in relation to the 2013 Will in square brackets: "03.01.13 2.30pm … very confused and doesn't know where he should be and needs guidance. … 5.1.13 2045 Frank buzzed x 2 very confused couldn't work out how staffing worked and why they were here at all. Reassurance given that staff were here 24/7 to look after him. Frank appeared agitated stated that if he got breathless he would buzz three times. Reassured he only had to press his buzzer once … 7.1.13 05.00 Frank having a shower at 12.30am. Very confused, assisted to put PJ back on and into bed. … 8.1.13 03.00 Frank buzzed at 12.30am asking staff what time he was to have a shower. Staff informed him they would wake him up at 0600 to have a shower. Frank is very confused as to daily routine, on his return from holiday … Addit 04.30 When staff checked Frank 04.20 he was having shower … very confused. Difficult to explain any routine to him. 10.1.13 11.30am … Frank is becoming more and more confused with ADL's, buzzing for staff all the time for simple things like wears(sic) my socks. … 12.1.12 (sic) 2110 Frank left at 5pm with Deidre Molloy for weekend. Back Monday morning. Deidre concerned about Franks mental state. Stated that she speaks to him daily and has said that staff make him sleep in a paddock of a night and he has to beg them to let him in to have a shower and given him some food. Deidre has requested to speak to care manager about further details … 13.1.13 Resident partner Deidre informed me Frank had a fall whilst away, also she is concerned about his increasing confusion. Deidre stated she would make Frank an appointment with his doctor ASAP … [14 January 2013 - Ms Molloy telephones Ms Dalton asking her to see Frank about making a new will: see paragraph [47] below.] 14.01.13 11.30am V/A attended due to confusion … 15.1.13 10pm … Frank confused needs direction and reassurance. Time confused kept asking what time he would shower … 16.01.13 9.30pm … Frank more confused … 17-1-13. 12.30pm Frank requires reassurance, support & guidance due to increased confusion. Frank needs reminding to attend activities more often [17 January 2013 - Ms Molloy takes Frank's instructions about a new will: see paragraph [48] below.] … 18.1.13 11.20am Frank self showered needing a lot more guidance and emotional support due to his increasing confusion … 21.1.13 3pm Frank came to afternoon activities over dressed. He had another long sleeved shirt over his long sleeve shirt he already had on. … .. [24 January 2013 - Ms Dalton attends on Frank at Lee Hostel and he executes the 2013 Will.] 24.1.13 11.45am … High falls risk as walks around room and down hallway forgetting his 2/stick or walker. Very confused changing shoes and shirt a few times a day … 24-1-13 12.45pm Frank attends most activities but sleeps a lot now during them. Staff intervention required. Frank is often quite confused, reassurance and support given. … 28.1.13 0500 Frank up and showered himself dressed and back into bed when staff checked at 0220. Frank very confused as to time of the day … 31.1.13 12pm … Frank is reminded to use his walker high risk of falls walks around with no w/stick. Confused at times requires direction …"
The evidence also included Frank's Lee Hostel behaviour chart for various periods. While there was no chart for 24 January 2013 his chart for 28 January 2013 (and on earlier dates) lists him as "Verbally disruptive, Generally noisy, Repetitive Speech, Disoriented, Confused, Pacing, Wanders/absconds, Attention seeking, Paranoid, Antisocial, Manipulative, Restlessness, Bothering residents, Anxious, Depressed, Refusing care, Abnormal sleep pattern, Risky, Chronic complainer, Interferes".
Ms Molloy telephoned Ms Dalton on 14 January 2013. Ms Dalton's evidence is set out in paragraph [61] below. Ms Dalton's file note of that conversation made at 10.11am states: "Frank is now in a nursing home at Blayney. His middle/main eyesight is lost and he has only peripheral vision. He can no longer write or read which he if (sic) finding very frustrating. He wants to make some changes to his Will. There is still dissension between his children and he wants to make Deirdre the Executor. Asked Deirdre if she really wants the grief. It will be a thankless task, especially if there is dissension between the beneficiaries. Made an appointed to meet with Frank at Café Latte on Thursday morning at 11.00am. Frank can no longer negotiate our stairs. Get out Frank's Advanced Care Directive. Half file in 2011 drawn."
On 17 January 2013, Ms Dalton met Frank to take his instructions for the 2013 Will. Her affidavit evidence of that occasion is set out in paragraph [61] below.
On 17 January 2013, Ms Dalton sent Frank's draft will under cover of a letter addressed to him at Ms Molloy's property at Mandurama (notwithstanding that she knew Frank was living at Lee Hostel). The letter stated: "We refer to the above matter and enclose herewith a copy of the Will re-drafted pursuant to your instructions taken on 16th January [sic] last. Please read the Will carefully and let us know if you require any changes. If the Will is acceptable to you as drafted please have Deirdre telephone our office so we can arrange a date and time for Lee to visit you at Lee Hostel in Blayney and have you execute same."
On 21 January 2013, Ms Molloy telephoned Ms Dalton. Ms Dalton's file note of that conversation at 12.23pm records: "She has received the Will and she will take it into Frank. I misspelt her name so I changed it on the original. Made an appointment to travel out to Blayney this Thursday so Frank can sign."
On 24 January 2013, Ms Dalton attended Frank at Lee Hostel, where he executed the 2013 Will. Her affidavit evidence about this occasion is set out in paragraph [61] below. Her file note made at 2.56pm that day records: "Took out the Will I had prepared from Frank's instructions so that he could sign it. He was happy to sign. He said he was pleased that I was executor as he thought his children may not be very co-operative with her. He told me Joe did not get on well with his two sisters and he was worried about that. We chatted for a while in his room and I went through the Will with him to make sure it reflected what he wanted. He agreed it did. We then went to find somebody who could be the second witness to the Will. I told him I would send a copy of the Will to Deirdre to put among his papers. He was happy with that as Deirdre looked after all his paper work."
By the 2013 Will Frank appointed Ms Molloy as his executrix and trustee, left certain personalty to Ms Molloy and otherwise divided his property equally among Joe, Bernadette, Jacinta and Ms Molloy.
In or about February or March 2013, Joe says that Ms Molloy rang him and said words to the effect that "Lee Hostel are finding it difficult to handle Dad's continued aggression and at risk behaviour requesting that he be appointed a local GP in Blayney and that he will need to be moved in the near future to a facility that could accommodate his advancing dementia and care needs".
In a letter of 25 July 2013, Dr Ruth Arnold noted that Frank was developing increasing problems with confusion, weird dreams and occasional aggression to nursing staff at Lee Hostel.
On 13 August 2013, a PAS cognitive impairment scale test was administered to Frank at Lee Hostel. A raw score of 10 and prorated score of 10 were obtained. According to Dr Wijeratne, the latter is equivalent to a percentile rank between 95 and 100 and the higher the percentile rank, the more impaired the person is.
In September 2013, Yvette deposed that she telephoned Frank at the hostel to wish him a happy birthday. However Frank was very confused and kept asking who it was that was calling him.
On 9 September 2013, Frank underwent a CT scan, which was reported as demonstrating severe generalised cerebral atrophy with marked enlargement of the ventricles and chronic small vessel cerebrovascular disease.
On 12 September 2013 Frank had an episode of wandering. He was moved to Bilyara Hostel, Cowra, shortly after this episode.
Frank died on 23 July 2014 at the age of 90. The cause of his death is recorded as bilateral pneumonia, advanced dementia and old age.

Ms Dalton's evidence

Ms Dalton's evidence was that Frank and Ms Molloy had been clients of hers for many years and she had come to know them both well over the intervening period. Acting on Frank's instructions, she had drafted his 2011 Will.
Because of its importance to the outcome of these proceedings, it is necessary to set out her affidavit evidence in detail: 5. On or about 14 January 2013 at about 10.11 am Deirdre telephoned me at my office and we had the following conversation:- Deirdre: "Frank is now in the Blayney Nursing Home. He has lost his middle/main eyesight and only has peripheral vision. He can no longer see well enough to read or write which he finds very frustrating. He wants to make some changes to his Will and as there is still dissent between his children he wants me to be the executor." I said: "If the children are going to be difficult it will be a thankless task. Do you really want the grief?" Deirdre: "To be perfectly honest, no I don't want to be executor.... "I also need to collect Frank's Advanced Care Directive from you as they need it at the nursing home." 6. An appointment was made during this telephone conversation with Deirdre for the deceased to come and see me. Owing to the steep staircase to our first floor office we arranged to meet at Cafe Latte on Thursday morning at 11.00 am on 17 January 2013. 7. The deceased, Deirdre and I meet as arranged on 17 January 2013 at the Cafe Latte in Orange and enjoyed a cup of coffee and general conversation before Deirdre left the Cafe to do some shopping leaving the deceased and I alone. 8 I observed the deceased to be bright happy and talkative. We talked about all sorts of things such as Frank's service in New Guinea during the Second World War. I asked the deceased: "That was a terrible area of conflict. Were you on the Kokoda Track?" I recall Frank thought this was funny. He said: "No. I was a cook. Never got anywhere near the fighting." ... "It was an adventure for me." I recall Frank telling me some amusing stories about baking disasters while in the army but I cannot recall the specifics of those stories now. I just recall laughing with him as he told his stories. I enjoyed Frank's company and would best describe him as an absolute gentleman of the old school. 9 After Deirdre left the Cafe the deceased and I discussed what changes he wanted to make to his Will. I said to him words to the effect: I said: "Frank, Deirdre does not want to be the executor. Do you have anybody else you trust that you can appoint as your executor?" The deceased: "I don't really. Joe has a difficult relationship with his sisters and Deirdre doesn't want to be executor. Could you do it for me? It would be a relief for me if you did and then Deirdre would not have to worry about it."... "It would take a weight off my mind." I agreed to do so. 9. I took hand written notes contemporaneously with my conversation with the deceased during our conference on 17 January 2013. He gave instructions that his estate was to be left to his three surviving children and Deirdre. Attached at pages 9 and 10 is a copy of the handwritten file note I made during that meeting. As I was leaving the cafe I said to the deceased: "I'll draft the Will and send it to you. Do you want me to send it to the hostel or to your home address?" The deceased replied: "Not the hostel. Send it to my home address and Deirdre will bring it in to me." 10. On or about 17 January 2013 a letter was forwarded to the deceased's home address attaching a copy of the Will for him to read and approve before I drove to the Lee Hostel in Blayney to witness him sign. 11. On or about 21 January 2013 Deirdre telephoned me. She said words to the effect: "I've received Frank's Will and I will take it in to him." I arranged a time to call and see the deceased at the Lee Hostel on Thursday 24 January 2013. Deirdre said: "I'll let Frank know when to expect you." 12. On or about 24 January 2013 I drove to the Lee Hostel in Blayney with the deceased's draft Will. He was up and dressed in his room waiting for me. We chatted for a while about general matters. I said words to the effect: "Do you know why I am here this morning?" to which the deceased replied. "Yes, of course I do. You have my Will for me to sign. Deirdre bought it in to me. You misspelt her name." I said: "Yes, I know. I've corrected it now." I read through the Will paragraph by paragraph with the deceased to ensure that he still agreed each paragraph properly reflected his instructions. He said to me words to the effect: "I'm pleased you're the executor Lee as I don't think my children will be very cooperative with Deirdre, and Joe does not get on well with his two sisters."... "I'm happy to sign this now." 13. The deceased and I then left his room and went to the front office of the hostel to find a suitable second witness to witness Frank sign his Will. I was introduced to an adult female named Lyn Wallace who worked at the hostel as a case manager. She agreed to act as the second witness. The three of us found a suitable table and the deceased signed the Will and Lyn Wallace and I witnessed the deceased and each other sign each page of the Will. I dated the Will at the same time. Attached at pages 11 and 12 is a copy of the Will executed by the deceased on 24 January 2013. 14. After the Will had been signed I said to the deceased words to the effect: I said: "When I get back to the office I will photocopy your Will and send the copy to Deirdre to keep with your papers. The original will be kept in a Deed Packet in my office." The Deceased: "Yes, thank you Lee. Deirdre looks after all my paperwork." 15. During my visit with the deceased on 24 January 2013 I observed the deceased to be his usual self, maybe a little slower on his feet then I had previously noticed and frustrated with his impaired vision. He appeared alert but more sombre then I had observed him to be when we met at Cafe Latte the week before. The deceased did not repeat himself, ramble or digress in his conversation with me. His conversation with me was relevant in the context of the reason I was there visiting him."
Ms Dalton's handwritten file note to which she refers in paragraph 9 of her affidavit is reproduced as Schedule 1 to these reasons. It is a critical feature of her case because it records Frank as having been able to give Ms Dalton quite explicit instructions, in particular about his assets.
Ms Dalton did not depart from her recollection in cross-examination. However, she did give the following additional evidence: 1. She accepted that it was important for her to know Frank was in a nursing home, she knew that he was vision impaired and she assumed he could no longer read or write. 2. In 2013 she was not aware of the Law Society of New South Wales guidelines concerning clients whose testamentary capacity was in doubt, but she "was aware that you needed to be very careful". (Although not in evidence, extracts from the NSW Law Society's publication When a Client's Capacity is in Doubt: A Practical Guide for Solicitors (2009) (the "guidelines") were referred to in Dr Wijeratne's reports and it was common ground that the fact of their existence was relevant.) 3. She was not aware that Frank had dementia. Ms Molloy had not mentioned it to her. 4. In taking Frank's instructions on 17 January 2013 she did not ask any open-ended questions. 5. On 17 January 2013, Frank volunteered (she did not ask) that "he just didn't feel right about not providing for Deidre". 6. When she attended at the hostel on 24 January 2013 she did not ask the care manager or anyone else about whether there were any concerns about Frank's mental state. 7. She gave evidence that she read the 2013 Will to Frank paragraph by paragraph and said something like "Is that right, Frank?", to which he nodded in response. When I asked Ms Molloy to describe her actual recollection of the execution of the 2013 Will, her answer included: "Q. So when you say you went through the will, what do you recall about going through the will? A. I read it to him paragraph by paragraph. I, I did explain what that was because - the, the, the solicitor being paid thing and I just said, "Now, is that right, Frank?" or something like that I would have said, and then when we'd been through it and he seemed satisfied with it, I said to him, "Well, we'll need now to find another witness, so we need to go out and find somebody," got up on his walker, he was very frail, is the day he was - he was much more upbeat and happy and engaging at Café Latte. He was a bit more sombre and I really thought he looked frail and he was very slow on his walker."

Associate Professor Wijeratne's evidence

A retrospective diagnosis of Frank's condition was tendered by the plaintiffs from Dr Chanaka Wijeratne, a consultant psychiatrist and Associate Professor (adjunct) in the School of Medicine Sydney at University of Notre Dame Australia.
No expert evidence was tendered on behalf of Ms Dalton.
Dr Wijeratne's first report was dated 25 August 2016. After reviewing the affidavit evidence filed in these proceedings (with one important exception - see paragraph [69] below) and other records, Dr Wijeratne's diagnosis of Frank included: "Given executive dysfunction, multiple vascular risk factors (hypertension, hyper cholesterolaemia and transient ischaemic attacks), and the neuroimaging changes of cerebrovascular disease, the most likely diagnosis is vascular dementia. The normal MMSE score obtained by the geriatrician is noted, but this cognitive screening told does not assess executive function; relative preservation of memory, as compared to Alzheimer's dementia, is a feature in vascular dementia. No further formal cognitive examination was made up to the time of the Will of 2013."
After reviewing a sequence of letters written by Frank, Dr Wijeratne concluded: "This pattern in the content of these letters between October 2011 and February/March 2013 is consistent with continuing gradual decline of cognition, in particular of executive function, in Mr Ryan who experienced a neurodegenerative disorder, vascular dementia. The evidence of care staff at Lee Hostel is that he became increasingly confused and agitated from around August 2012. Documentation on 24th January 2013, the day on which the second Will was signed, shows that he was described as confused by two members of staff, one of whom also wrote of his inability to remain alert and concentrate during hostel activities."
Dr Wijeratne's report then concludes: "Given this, it is appropriate to make a retrospective assessment of the Will of Mr Ryan on 24th January 2013. The minimum criteria for evaluating testamentary capacity are the Banks v Goodfellow criteria. These are that the testator must (i) Understand the nature and effect of making a Will. In my experience, the ability to understand the basic purpose of a Will remains relatively intact even in people with moderate to severe dementia. (ii) Know the nature and extent of their assets. Ms Dalton has not stated whether Mr Ryan was able to recall the broad outline of his estate and its approximate worth. The threshold for his understanding of this criterion would seem relatively lower given the estimated worth and less complex nature of his estate. Nevertheless, he would still have needed to call to mind his ownership of the property in Olive Street, Mandurama, whether he had a refundable bond from the aged care facility, and any shares or money in a bank account. (iii) Comprehend and appreciate the claims to which they ought to give effect. It is clear that Mr Ryan, in bequeathing his estate in equal shares to his longstanding de-facto partner and three surviving children, was able to comprehend and appreciate the claims to which he ought to give effect. (iv) Not be affected by a mental disorder that influences the disposal of their assets at the time they are making their Will. It is evident that Mr Ryan experienced mild to moderate dementia at the time the Will of 2013 was made. On this date and during the preceding days, weeks and months, hostel care staff consistently reported him as confused or lacking alertness. There was also a decline in the complexity of thought expressed in his personal correspondence between October 2011 and February 2013. In particular, the latter is suggestive of impairment of executive function which is a hallmark of the type of dementia he experienced, vascular dementia. This aspect of cognitive function has been described as the most important in Will making as it affects judgement and reasoning. Deidre has argued that Mr Ryan retained periods of relative clearness of thinking during the period when he made the Will of 2013. This raises the question of whether there were intervals of sufficient lucidity for him to make his Will competently. It is important to note, however, that the legal concept of the "lucid interval" is open to considerable doubt from a medical perspective. This is because during periods of fluctuation of sensorium, it is functions such as attention and alertness that are thought to improve, not memory or the higher order executive functions thought essential to testamentary capacity. Moreover these fluctuations are brief in duration and small in magnitude. SUMMARY In my opinion, it is very unlikely that Frances Ryan retained testamentary capacity on 24th January 2013."
The important exception referred to in paragraph [66] above is that - inexplicably - the material that was provided to did not include Ms Dalton's affidavit of 4 March 2016. Having been provided with that affidavit, Dr Wijeratne produced a further report dated 10 March 2017 setting out his views in the light of Ms Dalton's affidavit. Dr Wijeratne provided this further opinion: "OPINION The foregoing does not change in any way the substance of my opinion that Mr Ryan lacked testamentary capacity on 24th January 2013. In particular, the concerns outlined on page 11 of my original report remain pertinent. I made comment on the recommendation of the Law Society of NSW that a formal assessment of testamentary capacity be made by an expert when a solicitor receiving instructions identifies various warning signs of incapacity. The contents of the current affidavit does not assuage these concerns. In particular, Ms Dalton's belief he was mentally alert and coherent would seem at odds with the consistent observations made by hostel care staff on whom he was dependent. Apart from confusion, the notes of staff indicate various behavioural complications of dementia, including apathy and agitation. The listing of the value of each component of his estate in Ms Dalton's handwritten file note of 17th January 2017 is noteworthy for its precision with regard to its listing of individual assets and their worth. In my opinion, such an accurate outline does seem inconsistent with Mr Ryan's degree of dementia and confusion. In any case, as opined in my previous report, his recall of the extent of his estate is a less pertinent matter than his ability to appreciate the effect of the change on his respective heirs, his ability to provide a cogent explanation for his changing his Will, and his retention of executive function. Ms Dalton has focussed on his apparent reasons for changing the executors of his Will, without addressing the far more important question of why he wished to change his Will in the first place."
Dr Wijeratne's evidence in cross-examination reiterated his concern about Frank's failure to have offered any explanation for changing his will to make Ms Molloy a beneficiary. He accepted it was not unreasonable to have appointed Ms Dalton as executor and that it was not inherently irrational to have made Ms Molloy a beneficiary. His concern was the lack of apparent explanation for the change from his previous will making - there being no record of Frank having offered an explanation for the change or Ms Dalton having sought such an explanation. However he indicated that this matter was a "significant building block" in his reasoning, but not the only reason.
Dr Wijeratne went on to explain that while the material indicated Frank had increasing cognitive impairment, what was important was Frank's executive function. The doctor defined this as "a person's ability to think abstractly, to weigh pros and cons of particular arguments, and to come to a judgement". He continued that MMSE scores were not good indicators of executive function and adhered to his analysis of four letters written by Frank over a period of years up to December 2012 as demonstrating decline in his executive function. Dr Wijeratne was not cross-examined on this aspect of his evidence.
The strongest challenge in cross-examination to Dr Wijeratne's conclusions was based on Frank's apparent ability to give precise instructions about his assets as recorded in Ms Dalton's file note. Reference was also made to the fact that this was a simple estate and the changes he made were simple ones. The essential proposition advanced in cross-examination was that if Frank had that ability, then it supported the conclusion that Frank had testamentary capacity at least sufficient for the straightforward changes he had made in the 2013 Will. Dr Wijeratne disagreed, saying that the question had to be considered against all the evidence and that, even if it was true that Frank had been able to recite all his assets, it was not conclusive of the issue.
Three things emerged from this part of the evidence. First, the doctor made it clear he was not casting doubt on Ms Dalton's honesty. However, he said there could be other explanations including that someone had given that information to Frank immediately before the meeting. In the absence of evidence of any other such explanation, I do not propose to take that possibility into account. However, Dr Wijeratne did say "what I am casting doubt on is [Frank's] ability to recall in such detail his estate which is in my experience quite unusual given, as I said, his underlying degree of impairment."
Second, Dr Wijeratne referred to the two hostel notes about Frank's confusion on the day the 2013 Will was executed (see paragraph [45] above). The doctor said "As I said, executive function is the higher order thinking that allows us to make this, as you know, more complex, more sophisticated judgments, and certainly when someone is confused we would really expect their executive function to be affected as well". He was not further cross-examined in relation to this proposition.
Third, this part of the cross-examination culminated in this exchange: "HADLEY Q. I suggest that if you assume that the note did record Mr Ryan's instructions, that suggests that he did have capacity? A. No, as I said earlier Mr Hadley, that there are a number of other points that I've used in determining that he did not have capacity. The - his knowledge - if this were true, his knowledge of his assets, or his estate I should say, does not make or break the case as it were, that far more significant is the degree of cognitive impairment, in particular lack of executive function in determining or discriminating between his, his various beneficiaries, and as I also said earlier, his failure to give a cogent reason for the change in will making, and that is breaking the pattern of will making. Q. But if the note records what came from Mr Ryan and it's more or less accurate as to the nature of his estate, given that some figures are estimates, and some values are not given, wouldn't you agree that that at least suggests that he did have capacity, even though there might be other matters that suggests the contrary? A. No. Q. Would you not even make that concession? A. I'd refer to my previous response which is, you know, the case does not stand or fall by that particular fact. Q. But you wouldn't even concede that the note per se is an indication in one direction, assuming that it's authentic, and that it came from Mr Ryan? A. Well, as I said in my earlier report, it's - if it were true it is not the primary or sole reason by which we determine capacity, testamentary capacity."
In assessing Dr Wijeratne's evidence - in particular his second report and his cross-examination - I was mindful that, through no fault of his own, he had been placed in what might be thought to have been a professionally embarrassing position by not having been provided with Ms Dalton's affidavit of 4 March 2016 after having reached his opinion on all the other material. I was concerned to be satisfied that, insofar as he maintained his earlier opinion, he was doing so on cogent grounds which indicated he had fairly considered the new material without any predisposition towards maintaining his earlier views. I am satisfied he did fairly and properly consider Ms Dalton's affidavit of 4 March 2016. So much is demonstrated by the last three paragraphs of his second report (quoted in paragraph [69] above) which include specific reference to the inconsistency created by Frank's listing of his assets.
I do not think Dr Wijeratne's failure to make the concession sought by Mr Hadley in the passage quoted in paragraph [75] above suggests a dogmatic or advocate's approach that would justify discounting his expert evidence. Dr Wijeratne was grappling with the same tension in the evidence which confronts the Court (see paragraph [5] above). His response to the inconsistency was to refer to the evidence as a whole. Similarly, the Court's ultimate finding will not be made by reference solely to Dr Wijeratne's evidence. For the purposes of the Court's task, I find that an undoubted expert in the field has concluded by a rationally defensible and persuasive analysis of the evidence that it is "very unlikely that [Frank] retained testamentary capacity on 24th January 2013".
In reaching this conclusion about Dr Wijeratne's evidence, I have not overlooked Ms Dalton's evidence that in the interview on 17 January 2013 Frank volunteered a reason for the change to his will - that he felt bad about having made no provision for Ms Molloy. However, that evidence only emerged in Ms Dalton's cross-examination and after Dr Wijeratne had given his evidence (having been interposed), so it could not be put to him. No application was made to recall him. In those circumstances I do not think his report could be fairly criticised in reliance on Ms Dalton's oral evidence.
Irrespective of whether the criticism was able to be made, and with no disrespect to Ms Dalton, I accept the plaintiffs' submission that I should not be satisfied that Ms Dalton's recollection on this point is reliable. The evidence emerged only in cross-examination and after a day of evidence in her presence (as she was perfectly entitled to be) where the issue of lack of explanation for the change had been extensively canvassed. It was not in her affidavit evidence and, most importantly, not in her file note of 17 January 2013. I formed the view that she was careful in her note taking and it is likely to be something she would have recorded if it had been said. In any event, Dr Wijeratne had made it clear that the absence of an explanation was only one of the reasons for the view he had reached and I do not think it is so critical that his ultimate conclusion cannot be relied upon without it.
Before leaving Dr Wijeratne's evidence it is convenient to deal with the other specific submissions that Mr Hadley made about it.
First, he submitted that Dr Wijeratne erred to elevate the "pattern of will making" and the lack of explanation for the change to the importance which he did in his opinions. For the reasons which I have given in the preceding paragraphs, I do not accept that is a persuasive criticism. While it was undoubtedly an element in Dr Wijeratne's reasoning, it was only one part of it and did not have determinative significance. What did have determinative significance for Dr Wijeratne was his analysis of the decline in Frank's executive capacity, an analysis which was not challenged in cross-examination or submissions.
The second submission was that the doctor had "latched upon the testator's background health problems such that, in his mind, they displace other evidence of capacity…using a combination of medical evidence and anecdotes from the plaintiffs, Dr Wijeratne has formed an opinion of the testator's degree of dementia, visual loss and hearing loss".
The "anecdotes" from the plaintiffs were said to be of "minimal assistance" given their source was interested parties. For the reasons given in paragraph [8] above I do not accept that factual evidence should be disregarded as unreliable.
Mr Hadley's argument in relation to the medical evidence was more nuanced, as it had to be. He submitted that "we concede that dementia, hearing loss and vision loss are recorded in the medical evidence and he's had regard to that, quite properly. The evidence is before you, but we say that Dr Wijeratne has gone too far because he gave such prominence to those matters that he failed to make a realistic appraisal of the solicitor's evidence of her meetings with the testator and the instructions she got from him and the execution of the will". For the reasons given in paragraph [76] above, I do not accept that submission. Dr Wijeratne did take it into account, but for reasons which I regard as cogent he maintained his opinion based on a consideration of all the evidence before him.

Dr Hazelton's evidence

A letter obtained by the plaintiffs from Dr Ken Hazelton, Frank's general practitioner, dated 26 April 2015 was tendered in evidence. Dr Hazelton was not required for cross-examination. The letter stated (emphasis added): "I am replying to your request of 13/4/15 for an opinion regarding Frank's mental capacities on 13th January 2013. You have listed the reports supplied to me by Dr C Ireland in July 2010 and October 2011. and there was certainly significant documented defect in Frank's short term memory by January 2013. Those problems of needing assistance to orient himself to time, particularly, were impacting on his day to day life. With regard to your query about the higher functional levels he would have sustained, such that he might understand the nature and impact of making a Will, I do not believe he had a formal assessment regarding mental capacity at around that time on which to base an opinion. I recall that I was still able to have a reasonable conversation with Frank regarding his time at Brunswick Heads at that time, and noted in my records on 25/2/13 that he retained sufficient insight in to his condition to warrant a file note: "Frank reports he is "sundowning"!. Without results of a formal assessment at that time I am unable to be definite, but my sense, and his retained insight as mentioned above, lead me to say he may still have retained capacity to understand implications of decisions he made regarding a Will in January 2013. Dr Ireland may also have formed a view of his legal capacity during her care of Frank."
I have no doubt that Dr Hazelton was doing his best in giving the information set out in that letter. However, given the matters I have emphasised in that letter, I do not give his views on Frank's capacity any weight.

Legal principles

There was no dispute between the parties about the applicable legal principles. I summarised them in my judgment in Phillips v Phillips [2017] NSWSC 280, 129-134 "129 The classic expression of the test for testamentary capacity was stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565: "It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made." 130 The Court's attention was then drawn to the judgment of Meagher JA (with whom Basten JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285: "44. The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. 45. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97-98; [1857] EngR 738; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. … 48. In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995." 131 The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275: "246 It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings". 247 In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed." 248 In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97]. 249 Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295. 250 In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 571, per Isaacs J. 251 I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation." 252 A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate. 253 As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other." 254 In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2004 Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Ms Zlatevska prior to that time): Smith v Tebbitt (1867) L.R. 1 P&D 398, at 436 - 437. Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3P&D 64 at 67." 132 Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that "[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this." To that I would respectfully add his Honour's observations at [54] that: "In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses." 133 In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased's memory. That is not this case. 134 Finally, I have also relied upon Lindsay J's recent summary in Estate Stojic, Deceased [2017] NSWSC 168: "84. The concepts of "testamentary capacity" (classically explained by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565) and "knowledge and approval" are distinct. A testator might have the capacity (ability) to understand but not, in fact, understand a Will and its effect. Nevertheless, an application of each concept to particular facts generally draws upon a common factual matrix because a court's determination must be made on the whole of the available evidence. That is so, particularly, where, as in these proceedings, the parties have not adduced expert medical evidence on the specific question of "capacity". 85. In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50]- [51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53]- [70]. Decisions about "testamentary capacity" and "knowledge and approval" are necessarily fact-sensitive. 86. The ultimate question, on the facts of the particular case, is whether the Court is satisfied that a particular testamentary instrument represents the last Will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35. The proponents of a Will bear the onus of proving that fact on the balance of probabilities, taking into account the nature of the case and the gravity of matters alleged: Evidence Act 1995 NSW, section 140; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361. The effect of an initial doubt about the validity of a Will is to require a vigilant examination of the whole of the evidence which the parties place before the Court; that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last Will of a free and capable testator: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 452-453."

Is the 2013 Will rational on its face?

The parties agreed that the 2013 Will was rational on its face and had been duly executed. In accordance with the principles set out above, a rebuttable presumption arose from those matters that Frank had testamentary capacity.

Is there a doubt?

Mr Hadley did not go so far as to concede that on the totality of the evidence that there was a doubt about Frank's capacity at the time he gave instructions for, and then executed, the 2013 Will. However, he did not advocate strenuously against the proposition. It was understandable that he should have been somewhat muted on the question because it is clear that, viewed as a whole, the evidence does give rise to a doubt that the 2013 Will was the last will of a free and capable testator. That evidence particularly includes the Lee Hostel notes for January 2013 (see paragraph [45] above), Ms Molloy's recorded expressions of concern about Frank's mental state and Frank's family's evidence about his declining condition in late 2012. In reaching this conclusion I have also taken into account Ms Dalton's evidence of her attendances on Frank, but at least at this point of the analysis that evidence is insufficient to dispel the doubt created by the balance of the evidence.
By reason of the conclusion expressed in the preceding paragraph, the onus is on Ms Dalton as proponent of the 2013 Will to satisfy the Court on the balance of probabilities, but taking into account the seriousness of the matters alleged, that it is the last will of a free and capable testator.

Was Frank a free and capable testator? - the plaintiffs' submissions

The plaintiffs emphasised the family evidence, the contemporaneous medical notes and Dr Wijeratne's report in support of the proposition that by the time Frank made the 2013 Will, he was suffering from what Mr Morahan described as a "severe disability". It was submitted that there was clearly a doubt raised as to whether Frank had capacity at the time he made the 2013 Will and that, therefore, the onus of proof shifted to Ms Dalton.
It was submitted that Ms Dalton had failed to discharge her onus by reason of at least all of the evidence which supported the finding that there was a doubt, in addition to the following matters: 1. A meticulous examination of Ms Dalton's evidence would not leave the Court "comfortably satisfied" that Frank had capacity. 2. In particular, there was no positive evidence adduced by Ms Dalton that Frank understood the effect on his children of inserting Ms Molloy as a 25% beneficiary. 3. It was clear that Frank did have a serious disorder of the mind in the sense required by Banks v Goodfellow (1870) LR 5 QB 549 in that he was delusional (for example, talking about being made to sleep in the paddock), begging for food and to have a shower, wearing multiple layers of clothes and the like. 4. The fact that Frank could tell stories about his war service on 17 January 2013 or could otherwise talk about simple things was exactly the sort of thing that people with dementia could do. Their ability to do so said nothing about their executive function.

Was Frank a free and capable testator? - Ms Dalton's submissions

It was submitted for Ms Dalton that there was insufficient evidence for the Court to conclude that there was doubt about Frank's capacity. However, if the Court came to the conclusion that there was sufficient doubt, Ms Dalton had discharged her onus by reason of the following matters: 1. The 2013 Will was simple, straightforward and rational. 2. Ms Dalton's file note of her conference with Frank on 17 January 2013 demonstrated that he could give precise instructions about his assets and his family members. 3. While no contrary evidence had been adduced, Dr Wijeratne's evidence did not assist the plaintiffs for the reasons given in paragraphs [80]-[84] above. 4. The various elements in Banks v Goodfellow (1870) LR 5 QB 549 had been satisfied. Insofar as the real dispute between the parties concerned the final element of that test - the absence of a disorder of the mind preventing the exercise of his natural faculties - the plaintiffs had failed to show any connection between Frank's demonstrated behavioural issues and his capacity to identify his assets and dispose of them among those who might have a claim to his testamentary bounty.

Consideration

This is not a straightforward case. The parties, Dr Wijeratne and now the Court are all grappling with the same conundrum: the stark contrast between the significant body of family, medical and hostel evidence that raises significant doubt about whether Frank had testamentary capacity on 24 January 2013 and Ms Dalton's file note of 17 January 2013 and her other evidence which supports the conclusion that Frank did have capacity. In considering the question I have taken careful account of the legal principles set out in paragraph [87] above. There was no real dispute (and Dr Wijeratne's report agreed) that Frank understood the nature and effect of making a will, he knew the nature and extent of his assets and was able to comprehend and appreciate the claims to which he ought to give effect. The real question was whether he was affected by a mental disorder which so influenced his mind in relation to the disposal of his assets that the Court could not be satisfied, on the balance of probabilities having regard to the seriousness of the matter to be proved, that the 2013 Will was the last will of a free and capable testator.
I have considered the evidence as a whole. I have given considerable weight to both the simplicity of the scheme of the 2013 Will and the uncomplicated nature of Frank's assets. I accept and also give considerable weight to Ms Dalton's notes and account of what happened on both 17 and 24 January 2013. I have reminded myself that the Court must be satisfied that Frank had testamentary capacity on the balance of probabilities, but bearing in mind the seriousness of the matters to be proven. I certainly have a residual doubt that Frank had capacity on 24 January 2013.
However, after anxious consideration, I have concluded it is more than merely a residual doubt. To adopt the language of the High Court in Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 453, the doubt which the Court has on the question is "substantial enough to preclude a belief that the [2013 Will] is the will of a [testator] who possessed sound mind, memory and understanding at the time of its execution."
Without minimising the evidentiary weight to be given to Frank's ability to give precise instructions about his assets on 17 January 2013, the primary focus of the Court's attention needs to be on whether Frank had testamentary capacity on 24 January 2013. That question must be informed by all of the evidence, including what happened on 17 January 2013.
Bearing the above in mind, the reasons for that substantial doubt are: 1. The two hostel notes made about Frank's mental state on 24 January 2013 (see paragraph [45] above). 2. That on 24 January 2013 Ms Dalton only read the draft 2013 Will back to Frank rather than seeking confirmation of his instructions by non-leading direct questions and that there is no evidence of her asking why he was changing his will in the way he was. I am not satisfied that the act of Frank nodding his head supports a conclusion that he was not affected by his undoubted mental condition, particularly when one takes into account Ms Dalton's own evidence of Frank appearing more sombre, frail and being slower on his walker. In relying on these matters I have not overlooked that Frank apparently understood that Ms Dalton was attending on him for the execution of his will. The difficulty is that identified by Campbell JA (with whom Giles and Macfarlan JJA agreed) in Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58 at 637 [65] (emphasis added): "Mr Sneddon submits that the fact that two solicitors, Mr Hourigan and Mr Smith, on separate occasions decided that Mrs Daher understood the various transactions effected by the documents that they respectively witnessed is powerful evidence against the judge's conclusion concerning Mrs Daher's capacity. However, a difficulty in placing much weight on the views that the two solicitors formed is that there is no detail before the court of the basis upon which they formed their views. A solicitor who gives a detailed and careful explanation to someone sitting on the other side of the desk might form the view that that person understood the transaction if the person remained silent during the explanation, looked at the solicitor during it, periodically nodded, and when asked at the end whether all that had been understood, also nodded. Alternatively, a solicitor might form that view on the basis that the person on the other side of the desk periodically asked questions that related to the subject matter. In the first of those situations, if the person on the other side of the desk had, unbeknown to the solicitor, a serious deficiency in brain functioning, the solicitor's conclusion might not be a reliable one, however honestly it may have been arrived at. In the present case, the evidence does not disclose on what basis Mr Hourigan and Mr Smith arrived at their respective views." 1. That Ms Dalton was unaware that Frank had "dementia". In relying on this I have taken into account that there is no evidence of a definitive contemporaneous diagnosis in terms that Frank had dementia (as opposed to Dr Wijeratne's retrospective diagnosis) although it is clear that, for example, hostel staff and others used that term to describe his condition. However, there was evidence of Dr C Ireland's concerns in July 2010 that "there may be underlying early dementia present"; Dr Hazelton's October 2011 diagnosis that Frank had "micro vascular ischaemic cerebral disease with significant memory loss"; Ms Molloy's concerns recorded in the hostel notes on 12 January 2013 about Frank's mental state; and ample references to his short term memory loss and serious confusion. Ms Dalton never asked a question that might have elicited such information. 2. While Ms Dalton approached her task with what might be, with respect, described as common sense care. She did not do so with knowledge of or attention to the kinds of matters identified in the guidelines in relation to being satisfied of a client's testamentary capacity, particularly a client residing in a nursing home. In my view, the weight to be accorded to her observations of Frank as being, for example, "really happy and quite upbeat and very gregarious" is diminished when she did not know (as she would have had she been familiar with the guidelines) that such behaviour was not necessarily inconsistent with a lack of testamentary capacity. 3. That an undoubted expert in the field has concluded by a rationally defensible process of reasoning that it is "very unlikely that [Frank] retained testamentary capacity on 24th January 2013". In particular, the Court places reliance on Dr Wijeratne's unchallenged evidence, based on his analysis of Frank's letters, that Frank had suffered a decline in executive function, and the doctor's unchallenged evidence in cross-examination that a person in Frank's position who was described as confused would be expected to have diminished executive function. I have also taken into account that no expert was called to contradict Dr Wijeratne. 4. The absence of any explanation from Frank as to why he departed from what the Court has found was an agreement between him and Ms Molloy to keep their finances separate and not make claims on each other's estate - an agreement which, according to Ms Molloy, it was Frank who usually raised in family discussions. 5. All of the foregoing specific matters taken into account with the more general evidence of Frank's increasing cognitive issues (which the various doctors' or hostel notes referred to above record and from which it is clear that Ms Molloy was also concerned about) culminating in the hostel notes set out in paragraph [45] above.

Conclusion

Ms Dalton has failed to satisfy the Court to the requisite standard that the 2013 Will is Frank's last will as a free and capable testator. Probate in solemn form of the 2011 Will is to be granted to the plaintiffs.
The Court will fix a further mention date in order to give the parties an opportunity to bring in agreed short minutes giving effect to these reasons and, if they can be agreed, as to costs. Any disputes will be resolved on that next occasion.

Postscript - the need for continuing legal education on questions of capacity

The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing. Two recent government reports on elder abuse have made recommendations in relation to the role of lawyers and legal education. Those matters, when also considered in the light of recent decisions of this Court on the question of testamentary capacity, suggest that it is appropriate to conclude this judgment with some observations divorced from the personalities and facts of this particular case.
The New South Wales Legislative Council's Report on Elder Abuse in New South Wales (24 June 2016) included this recommendation: "Recommendation 8 That the NSW Government liaise with Law Society of New South Wales to request the Society include a unit on the assessment of mental capacity in respect of substitute decision making, wills and property transactions in its Continuing Professional Development Program for legal practitioners."
More recently, the final report of the Australian Law Reform Commission "Elder Abuse - a National Legal Response" (ALRC Report 131, May 2017), included this recommendation: "Recommendation 8-1 The Law Council of Australia, together with state and territory law societies, should develop best practice guidelines for legal practitioners in relation to the preparation and execution of wills and other advance planning documents to ensure they provide thorough coverage of matters such as: (a) elder abuse in probate matters; (b) common risk factors associated with undue influence; (c) the importance of taking detailed instructions from the person alone; (d) the need to keep detailed file notes and make inquiries regarding previous wills and advance planning documents; and (e) the importance of ensuring that the person has 'testamentary capacity' - understanding the nature of the document and knowing and approving of its contents, particularly in circumstances where an unrelated person benefits."
The Court notes that the NSW Law Society's 2009 publication was reissued in 2016 as When a Client's Mental Capacity is in Doubt: A Practical Guide for Solicitors.
Assistance in relation to making a will remains one of the most likely reasons for Australians to seek the assistance of a solicitor. The demographic trend to which I have referred suggests that a good understanding of the issues surrounding mental capacity is an essential skill for any solicitor who holds himself or herself out as competent to provide legal services to natural persons. It is to be hoped that the recommendations of the two recent reports, will be acted upon as quickly as possible.
Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator's death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.
It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue: 1. The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary. 2. A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases. 3. In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note. 4. In case of anyone: 1. over 70; 2. being cared for by someone; 3. who resides in a nursing home or similar facility; or 4. about whom for any other reason the solicitor might have concern about capacity, the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries. 1. Where there is any doubt about a client's capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.
I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely. Estate of Ryan - Schedule A (88.0 KB, pdf)

Amendments 10 August 2017 - Amendment paragraph [104] - addition of word "Mental" before "Capacity" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2017

Ryan v Dalton; Estate of Ryan

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