Seeley v Back - Estate of John Michael Pegus Seeley

Boreham v Prince Henry Hospital (1955) 29 ALJR 179 Bull v Fulton (1942) 66 CLR 295 Kantor v Vosahlo [2004] VSCA 235 CASES CITED : Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Scattini v Matters [2004] QSC 459 Symes v Green (1859) 1 SW&Tr 401; 164 ER 785 Worth v Clasohm (1952) 86 CLR 439 170

Harry Seeley - Plaintiff Francis Joseph Back - First Defendant PARTIES : Vernon Groves - Second Defendant

Mr G.C. Lindsay SC/Mr C.P. Locke - Plaintiff COUNSEL : Mr B.W. Rayment QC/Mr J.R. Wilson SC - Defendants

Oliveri Attorneys - Plaintiff SOLICITORS : Back Schwartz Vaughan - Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

FRIDAY, 18 FEBRUARY 2005 5569/01 - Harry Seeley V Francis Joseph back - estate of Michael Pegus Seeley & Anor

107958/03 - Harry Seeley V Francis Joseph back & Anor - the estate of John Michael Pegus Seeley

107987/03 - Harry Seeley V Francis Joseph back & Anor - the estate of John Michael Pegus Seeley

1 John Michael Pegus Seeley ("John") died on 19 June 2001. Probate of a purported will dated 18 February 1993 was, on 23 October 2001, granted in common form to Francis Joseph Back and Vernon Groves, the persons named therein as executors. 2 Three proceedings were initiated by Harry Seeley ("Harry") following John's death. They were, in order of commencement, 5569 of 2001 ("the first proceeding"), 107958 of 2003 ("the second proceeding") and 107987 of 2003 ("the third proceeding"). In the first proceeding, Harry seeks an order under s.7 of the Family Provision Act 1982 for provision in his favour out of the estate of John. In the second proceeding, Harry claims an order revoking the grant of probate made on 23 October 2001, together with ancillary relief. In the third proceeding, Harry claims a declaration that the estate of John is held on trust for Harry (or, in the alternative, an order under the Family Provision Act for provision in his favour out of the estate or notional estate of John's father whom I shall call "Harry Senior"). 3 I heard all three proceedings together over six days (12, 13, 14, 15 and 19 October and 15 December 2004). The logical course is to consider first the claim for revocation of the grant of probate made on 23 October 2001. Before dealing with that, however, it is convenient to set out the uncontested facts. Factual outline 4 John was born in 1946. Harry was born in 1981. John acknowledged Harry as his son. Harry's birth certificate records John as the father and one of the informants (the other is Harry's mother, Linda, now Mrs Smith). John's application for dissolution of marriage filed in 1983 referred to Harry as the child of John's marriage to Linda, as did a deed executed by John and Linda on 17 April 1984 effecting a property settlement consequent upon the dissolution of the marriage. In the will document dated 18 February 1993 the subject of these proceedings, John referred to Harry as "my son". I mention these matters at this early stage in order to dispose of doubts, attributed to John (and to be referred to presently), as to the parentage of Harry. Harry's mother Linda testified that John was Harry's father. She also said that she had never heard him express doubts on the subject. Linda's sister testified that she had never heard John express any such doubts. On the evidence before me, there is no reason to doubt that Harry is the natural child of John. It is as well that this be recorded at the outset. 5 John and Linda were unmarried at the time of Harry's birth. Linda (then Linda Epondulan, now Mrs Smith) met John in Sydney in 1979. She is of Filipino origin and had come to Sydney from Saudi Arabia a short time beforehand. In early 1980, John and Linda began living together at the home of John's widowed father, Harry Senior, in Brook Street Coogee. After Harry's birth in March 1981, John, Linda, Harry and Harry Senior continued to live at that address. Harry was named after his grandfather in accordance with the grandfather's wishes. Harry was, for the grandfather, the only child of his only child. 6 John and Linda married on 2 January 1982. A short time later, on 15 April 1982, Linda left the Brook Street home taking Harry with her. This followed episodes of domestic violence. The marriage was later dissolved but John and Linda continued to be in contact with one another until John's death almost 20 years after the separation. Harry also had contact with John over the years. After Harry left school, John played a part in his securing employment at the Coogee Legion Club at which John was a regular attender. Presumably because of formal arrangements made in advance of the marriage and after its dissolution, Linda makes no claim upon John's estate. 7 Harry Senior died in July 1987 aged 90. John was the sole executor and sole beneficiary under his will. The principal asset was the Brook Street property. The estate was fully administered and distributed by late 1988. 8 John worked, at all material times, in clerical positions with the Department of Housing. At the time of his marriage to Linda in January 1982, he already owned four suburban properties, three in Coogee and one in Bondi Junction. He was then aged 35. He was interested in property investment. With the encouragement of Harry Senior, he saved as much money as he could and invested in real estate. At the time of his death in 2001, he continued to hold two of the properties owned in 1982 and also owned two other properties, one of which consisted of flats and shops in Perouse Road Randwick. The inventory forming part of the probate document discloses an estate valued at $4,019,196.05. The evidence before me is indicative of a current value of more than $6 million. 9 Mr Groves conducted an estate agency business at Randwick. He managed properties for John and assisted him with sales and purchases. It was John's habit to call at Mr Groves' office regularly to discuss anything that needed to be discussed about his properties and to chat generally. Mr Groves' wife, who also worked in the business, was sometimes party to these conversations, as was Mr Groves' son who often attended at the office on Saturdays. Mr Groves sold the business and retired in 1997. 10 By the will document dated 18 February 1993, John appointed Mr Back, his solicitor, and Mr Groves, his estate agent, as executors, gave the whole estate to those executors, made directions for the payment of debts and testamentary expenses and directed that the residue be held upon trust as follows: "(i) As to ten percent (10%) thereof unto my trustee upon trust for my son HARRY SEELEY of Miles Street, Mascot to pay the income therefrom for his maintenance benefit and education until he shall attain the age of twenty one (21) years and thereafter to pay the capital of that fund together with any accrued interest to the said HARRY SEELEY . (ii) To pay the balance then remaining unto VERNON GROVES aforesaid for his sole use and benefit absolutely." 11 The will was drawn by Mr Back who had been John's solicitor for a number of years. Mr Back and one of his employees were the attesting witnesses.

The revocation claim 12 The allegations central to the claim in the second proceeding for an order revoking the grant of probate are set out in paragraph 13 of the statement of claim: "The Will was not a valid testamentary instrument because at all material times the Deceased lacked testamentary capacity in that: a. at no material time did the Deceased understand the nature of the act of making the Will or its effects. b. at no material time did the Deceased comprehend or appreciate the claim of the Plaintiff, or any other claims, to which he ought to have given testamentary effect. c. at all material times the Deceased was suffering from alcohol abuse and severe depression and was on medication that rendered him incapable of taking a rational view of matters to be considered in a will. d. at all material times the Deceased suffered a delusion that the Plaintiff was not his natural son. e. at all material times the Deceased suffered a delusion that he had first met Linda (the mother of the Plaintiff) in the Philippines rather than (as was the fact) in Australia. f. the delusions set out in sub-paragraphs (d) and (e) above overmastered the Deceased's judgment to the extent that: i. he was rendered incapable of making a reasonable and proper disposition of his property by will. ii. he was rendered incapable of taking a rational view of the matters to be considered in making the Will." 13 It is possible to deal briefly with paragraphs (d) and (e). Shortly before Harry's birth, John is reported by Mr Groves to have said to Mr Groves that a woman from the Philippines had contacted him saying that she was to give birth to a child of which John was the father. John supposedly expressed doubts as to whether he was the father, to which Mr Groves replied to the effect that if John thought he was the father he should act accordingly. On more than one occasion, according to Mr Back, John expressed doubts to Mr Back about whether Harry was his natural son. The matter was raised when John complained about having to pay maintenance for Harry. Mr Back did not act for John on matrimonial or family law matters. He discussed with John the possibility of obtaining parentage testing orders with a view to seeking to be relieved of further maintenance obligations in respect of Harry (this was while Harry was still a child). John never acted on these suggestions. While John wondered, from time to time, whether Harry was really his son, there is no evidence justifying any finding that John was at any time under a delusion that Harry was not his natural son. Mr Back's belief was that John thought that Harry was his son. Dr Williams, a psychiatrist whose evidence will be referred to in more detail presently, said that doubts about the paternity of their children arise in the minds of many men in the ordinary course of events. Such doubts may be more prevalent in cases where children are born in the context of relationships of a more casual kind outside marriage. The existence of doubts of this kind cannot of itself lead to a conclusion of delusion. 14 In relation to paragraph (e), the only evidence which could ground a finding that John thought he had first met Linda in the Philippines rather than in Sydney is contained in Mr Groves' affidavit. He deposes to a conversation in which John supposedly said, "I have been contacted by a woman from the Philippines; she tells me that I have a son; what do you think I should do?" In cross-examination, however, Mr Groves made it clear that, when he referred in his affidavit to "a woman from the Philippines", he did not intend to refer to a woman who was in the Philippines at the time of his conversation with John but rather, as he put it, "a Filipino woman", signifying merely Filipino origin rather than contemporaneous physical presence in the Philippines. There is accordingly no basis for a finding of delusion on this subject. 15 The real thrust of the revocation case is that John was an alcoholic and that his capacity to understand the making of a will and the effect of a will was destroyed by mental impairment induced by excessive consumption of alcohol and alcohol dependency at a time when he was also taking certain prescription drugs and suffering from depression. In reviewing the evidence relevant to that, I remind myself that, although the evidence dealt with aspects of John's life and activities over the period of some twenty years from his first association with Linda to his death on 19 June 2001, the question of testamentary capacity is to be addressed as at the date of the purported will, namely, 18 February 1993 and the date on which the relevant instructions for its preparation were given. As will be seen, instructions were given on 17 February 1993. The legal principles 16 This is a case in which a grant of probate in common form has been made and the plaintiff, as the person challenging the validity of the will, seeks vindication of his position by an order revoking the grant of probate. In that respect, the case resembles Kantor v Vosahlo [2004] VSCA 235 (16 December 2004). Ormiston JA there said (at [3]): "The present case arises out of an application to revoke the grant of probate to the appellants but, whatever might have been the position in other circumstances, it was accepted here that the burden of establishing that the will had been validly executed remained on the appellants, as having propounded the will and having received a grant of probate of it in the first place, so as to show that they remained entitled to that grant, with the consequence that, if they failed to do so, the respondent would have made good his right to have that probate revoked." 17 In the present case, therefore, it is for the defendant executors to show that the will is a valid will and that the grant of probate to them should be allowed to stand. The first approach to the matter must be as described by Buchanan and Phillips JJA in Kantor v Vosahlo (at [49]) by reference to Bull v Fulton (1942) 66 CLR 295 and Symes v Green (1859) 1 SW&Tr 401; 164 ER 785: "One starts with the proposition that, for a deceased to have acted with testamentary capacity, he or she must have acted with sound mind, memory and understanding with reference to the particular will. In Bull v. Fulton (1942) 66 CLR 295 at 343 Williams, J. put it succinctly when he said:- 'Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it: Mortimer's Probate Law and Practice 2nd ed., 1927, at 53-55, Sutton v. Sadler (1857) 3 CB (NS) 87, 140 ER 671, Landers v. Landers (1914) 19 CLR 222, Bailey v. Bailey (1924) 34 CLR 558, Timbury v. Coffee (1941) 66 CLR 277, Derrett v. Hall HCA, 4 Februiary 1942, unreported.' As indicated, there is ample authority of long standing to justify this statement of the law. One may add to the cases just cited, Symes v. Green (1859) 1 SW&Tr 401; 164 ER 785 in which Cresswell, J. said (in line with what he had said two years earlier in Sadler ):- 'If a will, rational on the face of [it is] shewn to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, to have been made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the Court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it.'" 18 Their Honours continued (at [50]): "Thus, proof of due execution is ordinarily enough and testamentary capacity will not be separately raised for decision. But if "the evidence as a whole is sufficient to throw a doubt upon the testator's competency", then the will cannot be admitted to probate unless at the end of day, on all of the evidence, the Court is 'satisfied affirmatively' of the deceased's testamentary capacity. As we read it, the passages just quoted from the judgments of Williams, J. and Cresswell, J. do little more than this: they mark out an issue that ordinarily needs no separate attention (testamentary capacity), they identify the circumstances in which that issue will call for separate decision (where a doubt about capacity is raised by the evidence as a whole); and they identify, too, the party upon whom the risk of non-persuasion then lies. In particular we do not read what was said by Williams, J. in Bull v. Fulton, or indeed by Cresswell, J. in Symes v. Green , as addressing the standard of proof (which remains the civil standard) or the strength - or cogency and the like - of the evidence needed to persuade the decision-maker that the deceased had the requisite capacity. The latter will of course vary with the facts of the case and depend upon the circumstances, but that does not alter either the onus or the standard of proof." 19 Buchanan and Phillips JJA went on to deal with the question of standard of proof and, in particular, with the primary judge's description of it as involving an onus that was "heavy". They did so (at [55] - [56]) by reference to the decisions of the High Court in Worth v Clasohm (1952) 86 CLR 439, Boreham v Prince Henry Hospital (1955) 29 ALJR 179 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170: "In Worth v. Clasohm 1952) 86 CLR 439 at 453, after describing how the onus lay on the propounders once a doubt was raised as to the existence of testamentary capacity at the relevant time, Dixon, C.J., Webb and Kitto, JJ. said (when rejecting the criminal standard of proof as altogether irrelevant in such cases):- 'The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties placed before the court ...'. [Emphasis added]

In Boreham v. Prince Henry Hospital (1955) 29 ALJR 179 at 180, after quoting what Williams, J. had said in Bull v. Fulton about advancing age, Williams, Fullagar and Kitto, JJ. simply stated the test in classic terms: 'Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given. Memory is the faculty which is peculiarly in question in the present case.'

No mention was made here of any difference in the standard of proof, which throughout all the foregoing cases was surely taken to be the civil standard, a view that was reinforced in Worth v. Clasohm when the criminal standard was expressly and firmly rejected as irrelevant. Worth was the only the only case we have seen in which the standard was discussed. As a general principle, then, it will be sufficient to say, once a doubt has been raised about the testator's testamentary capacity, that the Court must be satisfied affirmatively that the testator was of sound mind, memory and understanding, when executing the will; for that was how the High Court described the onus in Bull v. Fulton and Boreham . The expression 'satisfied affirmatively' says all that need be said and any further description of the onus can only distract and may mislead: compare Neat Holdings Pty Ltd v. Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, 110 ALR 449." 20 These principles as to onus of proof and standard of proof must be applied to the central question of testamentary capacity. A useful and recent summary of the nature of the relevant inquiry may be found in the judgment of Muir J in Scattini v Matters [2004] QSC 459 (24 December 2004) at [89] to [97]: "The following passage in his judgment in Timbury v Coffee (1942) 66 CLR 277 at 283 Dixon J (as he then was) reformulated Cockburn CJ's classic statement of the matters necessary to establish testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 at 565 - 'Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J, In the Will of Wilson) "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J, Symes v Green) - Cf. per Holroyd J, In the will of Key "In the end the tribunal - the court or jury - must be able, affirmatively, on a review of the whole of the evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will … ".' In Banks v Goodfellow , Cockburn CJ said [at 561] in a passage referred to by Latham CJ in Bull v Fulton (1942) 66 CLR 295 at 299 that where an insane delusion 'has had … or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity'.

Latham CJ continued at 299 - 'The onus in such a case is on those supporting the will to show that the delusion did not influence the will … This does not mean that a propounder must absolutely demonstrate this negative proposition. He must establish it according to the standard of proof required in civil cases. It will be sufficient for him to satisfy the Court that it is a reasonable inference from the facts that a delusion proved to exist did not affect the disposition in question.' The ultimate question for the court is not the appropriate medical classification or description of any illness or incapacity suffered by a testator but whether the testator suffered from a "delusion" or other incapacity which affected the making of the will. Cf Re Crooks Estate (14 December 1994, Young J, unreported); Re Crichton (22 July 1994, Bryson J, unreported); and Re Estate of Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698. The enquiry identified by Williams J in Timbury v Coffee (1941) 66 CLR 277 at 280 is whether 'the delusion overmastered the judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will'. Counsel for the plaintiffs, in reliance on the reasons of Powell J in Re Estate of Hodges Deceased; Shorter v Hodges , advanced the proposition that the concept of 'insane' delusion today means 'incorrigibility of a belief whose falseness is not amenable to appeals of reason'. Powell J's formulation is, in fact, slightly different. At p 706 of his reasons, he appeared to adopt what he described as 'the latter-day psychiatrist's test of what is a "delusion"', namely one 'not capable of rational explanation or amenable to reason, and (which) is not explicable by reference to the subject person's educational culture'. A similar formulation, attributed to psychiatrists, is to be found in Executors, Administrators and Probate by Williams, Mortimer and Sunnucks, 18 th ed, para 13-17. Santow J, in Easter v Griffith (unreported 17 June 1994), after a review of authority and relevant literature, concluded that 'the concept of "insane" delusion' today means - '… incorrigibility of a belief whose falseness is not amenable to appeals of reasons … the delusion must be tested by objective evidence as to it being fixed, false and incorrigible such that the testator could not be reasoned out of it. Such delusions or disorders of the mind thus go beyond mere eccentricity, or vindictiveness or irrationality, though these may be evidence pointing with other material, to lack of testamentary capacity.' As the above passage suggests, the existence of delusions does not become immaterial merely because the testator, in the past, has been reasoned out of them or other delusions. What must be assessed is the extent, if any, to which a delusion existing at the time of making the will affected the testator's ability to satisfy the traditional tests of testamentary capacity stated, for example, by Dixon J in Timbury v Coffee . Where the delusion is in respect of a matter irrelevant to the disposition of the testator's estate it may nevertheless provide evidence of mental capacity which must be evaluated as part of the general body of evidence. Similarly, the fact that a testator was known to have delusions at a time reasonably proximate to the date of the Will may create a concern as to whether those or other delusions existed at that date. Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity Bailey v Bailey (1924) 34 CLR 558. It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity. In Banks v Goodfellow Cockburn CJ, speaking of infirmity of mind arising from 'the decay of advancing age' said - 'In these cases it is admitted on all hands that although the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams in his book on executors, "the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done".'" Application of the legal principles in this case 21 In the present case, due execution of the will document is proved. But the evidence as a whole casts doubt on the testator's competency. The doubt arises from the opinion of Dr Carne (to be referred to presently) that, on 18 February 1993, the mental capacity of John was impaired by a combination of factors so that his capacity to understand such a document was adversely affected, his capacity for rational thought was adversely affected and his capacity to understand the effects of such a document and claims upon his testamentary bounty may have been adversely affected. 22 It follows that the grant of probate may not be allowed to stand unless, on all the evidence, the court is satisfied affirmatively that John acted with sound mind, memory and understanding with respect to the will document of 18 February 1993. Such satisfaction must be according to the civil standard of proof on the balance of probabilities. 23 The matters requiring examination in the way just described centre upon John's consumption of alcohol and its effects. The general question is whether, when he gave instructions for the will, his relevant mental capacity was, as a result of alcohol consumption, the taking of prescription drugs and depression so impaired as to deprive him of sound mind, memory and understanding with respect to that will. If the grant of probate is to stand, the court must be satisfied, in an affirmative sense, that, despite the effects, if any, that alcohol, drugs and depression may have had upon John's intellectual functioning, he possessed such sound mind, memory and understanding. John's drinking - evidence of family members 24 Linda attributes her withdrawal from the home at Brook Street Coogee in 1982 to John's violence when he returned home drunk. She said he drank every day after work and was regularly drunk after work. Linda's sister, who worked at the Department of Housing with John during the early part of the relationship, said that John frequently drank at lunchtime and was often "drunk" when he returned to work in the afternoons. What the sister meant by "drunk" emerged in cross-examination: "WILSON: Q. What period of time was it that you made the observation about him drinking at lunch time and returning drunk? A. While I was working at the Department of Housing, after lunch, most of the time John passed by and say hello and have a little chat with me on my work station. Because he was quite nice in normal times and I said hello. After lunch I noticed that hmm, hmm, he smelled of beer, alcohol, and his colouring, especially the ears, gone red or pinker. I was just thinking, obviously he had drinks." 25 Harry's evidence was that, from age 5 or 6, he would be taken by John to clubs and hotels for meals. From age 14, he was seeing John four times a week on average. By the time he left school in 1998, there was almost daily contact. They only ever went to hotels and clubs. Harry says that, on one occasion when he was about seven, John called to collect him at home (an unusual event) but Linda would not let him go with John because, she said, John was drunk. Harry's perception of his father is summed up in a passage from one of his affidavits: "He always seemed to be on the way to getting drunk or sobering up." John's drinking - evidence of the Groves family 26 Mr Groves testified that, following Harry Senior's death in 1987, John sought his assistance in dealing with Harry Senior's property and John's own property. Mr Groves had had a professional association with Harry Senior. With Mr Groves' help, John sold some properties to clear debt. Mr Groves assisted with the management of John's property portfolio until he retired from business in 1997. He says that John called at his office at Randwick about every second day. Mr Groves' cross-examination includes the following passage: "Q. Do you say throughout all the time that you had contact with John Seeley, it never came to your attention that he had or might have a drink problem? A. I never saw him drunk. If that's a drink problem, if you see someone drunk. I knew he had a drink from time to time. He might have had a lot of drinks, but not in my company, and not during the day.

Q. Did he at any time in your presence smell of alcohol? A. I would say occasionally he may have smelt of alcohol. I would have picked that up if he only had one glass, because I was not a drinker. So if he walked in and had one glass, I would smell it. So that would not qualify as being many drinks. One would be sufficient for me to smell, in most cases.

Q. Can we take it that to your observation on the whole he was a very sober man? A. In my company, yes."

Mr Groves also testified that John smelled of cigarettes but did not appear to have a hygiene problem. He said that John was, to his knowledge, a regular attender at the Coogee Legion Club. 27 Mrs Janice Groves worked in her husband's business from about 1987 and saw John when he called at the office. She estimated the frequency of John's visits at about two per week. She never saw him drunk or affected by alcohol. She occasionally smelled alcohol on him. There were also occasions on which there was "a slight odour" about John, although his clothes were generally neat. 28 Mr Jason Groves is the son of Mr and Mrs Groves. He spent time at his father's office from about 1984 (when he was eleven years old) until his father's retirement in 1997. He was actively involved in the business from age 16 when he obtained a salesman's certificate, although his only full-time involvement was for two months in 1997 when his father was recovering from an accident. While a schoolboy, he attended the office regularly at weekends and after school. I quote from Mr Jason Groves' cross-examination: "Q. You don't say anything in your affidavit about whether or not he had a drinking problem, do you? A. No, I don't.

Q. Do you know from your observations whether or not he had a drinking problem? A. I certainly never saw him drunk. I can honestly say that. There were times, of course, where I could tell that he had had a drink, but I certainly never saw him unduly under the influence of alcohol.

Q. Never at any stage in your whole personal contact with him, is that your evidence? A. No.

Q. Sorry, is that your evidence? A. It is, yes. It is, yes.

Q. Were there occasions when you observed that he smelt strongly of alcohol? A. I don't really know what you mean by smelt strongly. I am certain there were times when I smelt alcohol on his breath. There weren't ever times that I - for example, I never observed classic symptoms of slurring speech or walking in a funny way. There were times clearly he had had one or two drinks before coming into the office, or whatever. I never saw him, I never saw him drunk.

Q. Well, he was a person, wasn't he, who from time to time actually reeked of alcohol? A. It was never my, it was never my observation in the times that I met him. Certainly not when he came to the office.

Q. Are you able to describe for us John's appearance throughout the period that you knew him? Was he well dressed or well groomed, or poorly groomed, what? A. Gosh. To the best of my recollection, he would always - he always had a jacket and tie on when he came into the office. Or occasionally not a tie, but rare was the occasion I think that I saw him without at least a jacket. As to the quality of the clothes, I couldn't really, I couldn't really comment. But he certainly more often than not wore a tie, and invariably wore a jacket.

LINDSAY: Q. Did you make any observations about whether or not he had a hygiene problem? A. It is not something that I ever noticed or that strikes my recollection.

Q. At any stage throughout all the time that you knew him? A. I don't know what you mean by a hygiene problem.

Q. Well, did he stink? A. No. I suppose you could smell cigarette smoke on his clothes, I suppose. And, as I said, alcohol on his breath. There's nothing that I can recall, nothing beyond that.

Q. Did he appear to be unwashed? A. I never observed that. Well, it is not something that I recall noticing about him.

Q. At any stage throughout the period of years when you say you had regular weekly contact with him? A. Of the things that I recall about John, that's not one of them." John's drinking - evidence from the solicitors' office 29 Evidence was given by three persons associated with the firm of Back Schwartz & Vaughan. Mr Back, a principal of the firm, prepared John's will. He and Ms Kagan, a secretary employed by the firm between about 1987 and 1995, were the attesting witnesses. Mr Back and Ms Kagan gave evidence, as did another clerical or paralegal employee, Ms Boyd. All three spoke of John's habit of calling at the office without an appointment or prior notice and asking to see Mr Back. 30 Ms Kagan had no independent recollection of signing the will document as a witness. Nor does she recall John's visits to the office to give instructions for the preparation of the will or to sign it. As to John's general habits, she said in her affidavit: "Sometimes when John came to our office he seemed to me to be affected by alcohol. He sometimes slurred his words, was unsteady on his feet and was dishevelled. At other times he did not exhibit these characteristics."

Ms Kagan said in cross-examination that the situation thus described in her affidavit arose "consistently" but, "I don't know how often". She said that, on occasions when John arrived apparently affected by alcohol and wanting to see Mr Back, she asked him to leave and, if he did not, she asked Mr Back to send him away. She said that he got to see Mr Back six or seven times out of ten, on average; and that the exceptions were occasions on which Mr Back was otherwise engaged or John was drunk. His state, on occasions of the latter kind, was described by Ms Kagan as follows: "Q. Did he also present himself as smelling of alcohol, whether or not he was unsteady on his feet and disheveled? A. When he was - from what I can remember when he was drunk, he was obviously drunk in all ways. It was one or the other. He was very drunk.

Q. Do you recall that he nevertheless smelt of alcohol on a consistent basis? A. No, I don't.

Q. You don't recall that? You don't recall that one way or the other? A. No, I don't remember." 31 Ms Kagan also said that, if John had been drunk on the occasion on which he came to the office to sign the will (of which she had no independent recollection), she would not have signed as attesting witness. 32 Ms Boyd commenced employment with the firm of solicitors shortly before Ms Kagan and is still there. She began as a receptionist and was in that position in February 1993. Her affidavit reads in part as follows: "When John came to the office I noticed that he smelt. To my observation he always smelt very strongly of stale cigarettes, sometimes of body odour and from time to time of alcohol. He never appeared to me to be drunk. If Mr Seeley came in unannounced (which was the norm) Frank Back would usually come out and talk to John at reception rather than in his office. I would usually be in a position to hear their discussions. Sometimes I heard Frank say words to the following effect: 'I can't see you now John you can come back later.' I never knew of any occasion on which Mr Seeley was sent away for drunkenness. I did not see John appearing drunk. By that I mean I never heard him slur his words or unsteady on his feet, or swaying. I never saw his hands shaking. I never heard him being abusive. My conversations with Mr Seeley were normally not extensive. I noticed nothing out of the ordinary about his conversation." 33 Ms Boyd was cross-examined as follows: "Q. You say that you noticed that he smelt when he came to the office? A. Yes.

Q. And to your observation you say that he always smelt very strongly of stale cigarettes? A. Not necessarily stale but he always smelt of cigarettes.

Q. Yes and you say that he sometimes smelt of body odour? A. Yes.

Q. Can we take it from that that he was a person who from time to time appeared to have a hygiene problem? A. You could smell perspiration on him.

Q. From time to time you say he smelt of alcohol? A. Yes.

Q. In the second sentence of this particular paragraph you used the expression "very strongly" do you see that? A. Of the cigarettes, yes.

Q. Did you intend to convey that he smelt very strongly of stale cigarettes? A. Yes.

Q. He also sometimes smelt very strongly of body odour did he not; A. Yes.

Q. And from time to time he smelt very strongly of alcohol? A. Yes.

Q. You say that he never appeared to you to be drunk? A. No.

Q. Did he appear from time to time to have been affected by alcohol? A. No.

Q. He was not a person with whom you engaged in lengthy discussions; was he? A. When he came into the office generally no.

Ms Boyd also confirmed that she did not recall John's speech being slurred. 34 I come now to Mr Back's evidence generally about John's visits to his office. Mr Back said in an affidavit sworn on 19 December 2003 that he came to know John, an existing client of the practice, when he joined as an articled clerk in 1975. Mr Back also says in that affidavit: "From the time I met John I knew he was not a person of terribly good appearance. He would often smell of stale alcohol or like hotel premises however, I never saw him when he was affected by alcohol throughout the whole time that I knew him." 35 Mr Back professed a recollection of John coming to the office to give instructions for the will. That happened, he said, on 17 February 1993, the day before the will was signed. On the general subject of John's drinking, Mr Back said in cross-examination: "Q. You knew that this man had a problem with alcohol, didn't you? A. No, I didn't.

Q. He was a person who frequently or regularly came to your office over a number of years in a state where he was affected by alcohol? A. I disagree.

Q. Do you say he never came to your office in a state where he was affected by alcohol? A. He had come to my office when he had been drinking but he wasn't effected by it, if you are using "affected" in the sense of being drunk.

Q. But he came to your office frequently in circumstances in which it was obvious to you that he had been drinking? A. Correct.

Q. And you knew that he had an alcohol problem, didn't you? A. No, I didn't know he had an alcohol problem. He drank. There's a big differences between drinking and having an alcohol problem."

And later: "Q. John was a very lonely man in your perception, wasn't he? A. I don't think he was lonely. I think he enjoyed his own company.

Q. He was a very simple man, wasn't he? A. He was a simple man, yes. So it was--

Q. And he was a man with an alcohol problem, wasn't he? A. What do you mean by an alcohol problem?

Q. He drank too much? A. I don't understand by too much.

Q. He stunk regularly of alcohol? A. He smelt of stale alcohol.

Q. And you knew that he spent a fair bit of his time in clubs and pubs? A. He was one of those people who would have a beer at lunch time, for sure.

Q. And you did nothing to discourage him, did you, in his drinking habits? A. As a solicitor, discourage him from drinking?

Q. As someone who socialised with him? A. I don't think I said I socialised with him. I think I said I did not socialise with John. I knew of his social circumstances.

Q. Well, as someone who knew him socially? A. He was never drunk or drinking in my office, so it was a bit hard for me to discourage him. I didn't offer him a drink in my office, if that's what you mean. If that's discouragement, yes, I guess I did that. I didn't actively ring him up and say, "Don't go to the hotel, John, I think it is bad for you." I don't think that is any of my business as a solicitor.

Q. Why did you set your fee for the making of the disputed will as two bottles of cold beer? A. That's just a saying that I have. He brought me back a case, he didn't bring me back two bottles. The case was cold, that was good, but he didn't bring me back boutique beer, he brought me back long neck bottles of beer. It was just typical of John.

Q. What I want to suggest to you is, A, that he had a drinking problem and, B, that you knew about him having that drinking problem and, C, that you knew about that in February 1993?

Q. We will take it a step at a time. What do you say to the proposition that he had a drink problem? A. In my opinion he did not have a drinking problem, and I can only say that from when he spoke to me he was sober, both by telephone and when he came and saw me he was sober.

Q. What do you say to the proposition, although it may be impliedly rejected by that answer, that you knew he had a drinking problem in February 1993? A. I don't believe he had a drinking problem.

Q. What do you say to the proposition that you knew that he had a drinking problem when you set your fee at two bottles of cold beer? A. That's not correct." 36 I shall refer in due course to an entry in Mr Back's office diary for 17 February 1993 referring to John. He evidence is that this is in the handwriting of Sonia Cordwell, another employee. Ms Cordwell was not called to give evidence. There was no suggestion that she was not available to do so. John's employment record 37 There are in evidence several documents concerning John's employment with the Department of Housing. I shall deal with them in chronological order. 38 The first document is a reference written by a Senior Administrative Officer, Mr Vitetta, on 28 July 1988 and headed "To whom it may concern". It was written when John left the Department's service (although he later rejoined). Mr Vitetta said he had known John for ten years in the Department. The reference speaks of John's having occupied the "very demanding" position of Head Cashier at Sydney Regional Office. John supervised two other cashiers. Mr Vitetta said: "John has always endeavoured to carry out his duties in a diligent, competent manner, and I cannot fault John's commitment to the tasks entrusted to him." 39 John rejoined the Department in March 1989 and was based at Maroubra. A year later, there were complaints about his work and his personal hygiene. An internal document dated 26 March 1990 and signed by Stores and Records Supervisor describes John's work performance as "highly variable", although the tasks were "of a repetitive and recurring nature". Sometimes, it was said, he performed adequately and demonstrated "an appropriate level of initiative and problem-solving to complete the job at hand". On other occasions, he appeared "unable to remember simple instructions, often asking for them to be repeated". The document continues: "Sometimes these jobs are ones which he has done many times before. Mr Seeley appears unwilling or unable (I cannot say which) to make the simplest decision for himself or to demonstrate any initiative in performing his work. This inconsistency of performance requires constant monitoring of his work. I cannot determine any obvious pattern to or cause of these problems." 40 A memorandum from Counter Revenue Supervisor dated 30 March 1990 reads: "I have found Mr Seeley's work performance erratic. He seems to be an intelligent person, however he cannot be relied to undertake any work without supervision. Most of the jobs he performs as Mail Room Assistant are simple, manual jobs and he had to be instructed several times, before he was able to carry them out, as he seems to have a problem with his memory." 41 A memorandum of 25 July 1990 from Mr Byrne, Estates Management Supervisor, refers to two matters. The first is John's personal hygiene and complaints from other staff members about it. Mr Byrne had tried to get John to improve but any improvements only ever lasted a few days. The other matter is two acts of carelessness or irresponsibility, one in accidentally activating an alarm and not telling anyone (so that the police attended in emergency mode) and the other in leaving a safe containing money open overnight. A subsequent memorandum reports John as having said that he did not know that it was his job to check that the safe was locked at the end of the day. 42 On 1 August 1990, the matter of John's poor personal hygiene and its unpleasant consequences for other members of staff was taken up by Mr Byrne's superior with a personnel officer who was asked to provide counselling. The personnel officer wrote a report dated 9 August 1990 which refers to the personal hygiene complaints and the matters involving the alarm and the safe) and continued: "On 8th August 1990, I took the opportunity of speaking to Mr. Seeley personally and apprising him of the situation. Mr. Seeley offered little in defence in either the case of the two incidents or his personal hygiene, except to say that he was getting a little forgetful and it would not happen again. Mr. Seeley went on to say that he had been lazy in not showering regularly or maintaining appropriate dress and appearance. I pointed out to Mr. Seeley, that I considered that at this stage in his life, these things should be habitual and so his claims of laziness were inappropriate. Mr Seeley was further advised of the recent result of his medical examination for permanency, in which the Director, Medical Examination Centre, saw fit to note that his work performance was highly variable, and suggested an extended probation and further re-examination in six months' time. The rarity of this course of action by the Department of Health, in so much as this advice was unsolicited, was impressed upon Mr. Seeley. Although Mr. Seeley did not admit to having experienced any recent personal trauma or to be having any psychological difficulties, I suggested that it would be in both his and the Department's interests if he would make an appointment with the Public Service Counsellor. This has since been arranged. In the meantime, Mr. Seeley has been advised that I would be making a recommendation to defer the confirmation of his permanent appointment (due 13th March, 1990), for a period to the end of December, 1990, at which time a further assessment of his performance would be made, and a decision as to his continuance in the Public Service could be taken. Mr. Seeley was further informed that unless an immediate and sustained improvement was taken, then this decision could be made earlier than this. Accordingly, approval is sought to defer Mr Seeley's permanent appointment for a period to 31st December, 1990, at which time a formal review of his services, as well as a re-examination, will again be undertaken."

This recommendation was accepted and the decision was communicated to John on 13 August 1990. 43 Mr Byrne wrote a memorandum of 14 March 1991 on the subject of confirmation of John's permanent appointment. After referring to the interview with the personnel officer, Mr Byrne said that further counselling had been arranged with the Public Service Counsellor. There is no reference to the result, but Mr Byrne continues: "I have since continued to counsel John and will persist as long as necessary. However, this should only be more in the way of encouragement and confidence-building. For quite a long period now, John's personal hygiene has been satisfactory. He also purchased a complete new wardrobe of clothes. Very occasionally, there has been a minor lapse but only temporarily. His performance of duties has improved dramatically and so have his relations with other staff and clients. We have included the full range of Housing Assistant Duties in John's curriculum including counter and telephone enquiries which he now handles adequately. Consequently, I am now quite willing to recommend that Mr John Seeley be permanently appointed to the N.S.W. Public Service." 44 The only other evidence about John's performance at work is that of Mr Henwood who was his supervisor from February 2001 at Surry Hills. An affidavit of Mr Henwood was read and he was cross-examined. He spoke highly of John. He said that thee were no personal hygiene issues when he worked with John and that John's attendance record was excellent. The satisfactory nature of John's work and performance was summed up by Mr Henwood in cross-examination: "A. I found John at the time up there to be very good at what he did. The tasks were not elaborate tasks but they were tasks that needed to be fulfilled. A lot of people may have got bored by the tasks but John never. John was someone who met people, who greeted people and assisted us in providing the service that we needed to provide." John's hospitalisation in February 1993 45 John was admitted to the Prince of Wales Hospital on 8 February 1993 and discharged on 17 February 1993. The hospital's discharge summary records under "Diagnosis" two entries, being "Deep venous thrombosis" and "Alcohol abuse". The summary of history reads: "Developed pain and swelling in R. calf two days before admission. Had venogram with LMO which showed below knee DVT. Admitted and started on Heparin and Warfarin. Background history of alcohol abuse and agitation started on Valium 5 mg tds regular. Has been advised not to drink alcohol while on Warfarin after discharge. For INR to be maintained approx 2.5. To return Friday for repeat INR." 46 A letter from John's local doctor, Dr Adams, dated 8 February 1993, reported a venogram that day which had showed a right deep vein thrombosis. It also said: "He is v. anxious He smokes and drinks heavily." 47 The accident and emergency notes in connection with John's admission record him as having been "Alert", "Orientated", "Well looking" and "Co-operative". There is also a comment, "Very anxious man". Among instructions to the ward recorded at the time of admission was, "Alcohol Withdrawal Chart". The notes made on admission refer to "depression" under medical history and record that he was, at the time, taking Xanax which is used to treat depression. 48 The content and significance of the hospital records for the period 8 February 1993 to 17 February 1993 were extensively canvassed in the cross-examination of Dr Carne, a psychiatrist, whose report about John's mental state was tendered by the plaintiff. That cross-examination provided useful insights into the records. 49 After his admission to hospital, John was given Heparin and Warfarin for the thrombosis condition. These are blood thinning agents used to dissolve clots. He was also given Valium, a tranquiliser. The particular prescription of Valium was referred to by Dr Carne as "a moderate dose for treatment of potential alcohol withdrawal symptoms". Dr Carne was of the opinion that, although alcohol withdrawal is not mentioned in the notes, the references to "alcohol abuse" and "agitation" indicated that Valium had been ordered for the reason he stated. He said: "A. This is a discharge summary, intended to be read by a doctor. I think any doctor reading it would take, within it, the implication that the treatment of alcohol withdrawal syndrome took place. I certainly would have taken that, and I think most general practitioners would have understood that, to be implied within that discharge summary, which is, of course, not a full record of the admission, but just a summary." 50 Dr Carne was referred, in cross-examination, to the fact that an alcohol withdrawal chart had been ordered for John. He explained that this is a chart on which is plotted a patient's ongoing responses to lack of alcohol by reference to symptoms associated with such withdrawal. The more pronounced the symptoms, the more dependent on alcohol the patient may be taken to be. John's chart was not in the hospital records put into evidence. The most its mere existence shows is that there was, at the time of admission, some apprehension that John was addicted to alcohol and might be adversely affected by lack of alcohol. There were some references in the notes to scores of "2" on the chart but, in the absence of any standard calibration for such charts and knowledge of the particular scale used at Prince of Wales, they have no appreciable meaning. Dr Carne also pointed out that treatment with Valium would reduce symptoms of the kind recorded on such charts. He said: "A. Signs disappear if a syndrome is treated. It doesn't mean there isn't an underlying syndrome that is being treated. It is the same as if someone is being treated with blood pressure medication, their blood pressure will come to normal. It doesn't mean they don't have an underlying blood pressure disorder, hypertension." 51 John's hospital notes contain references to alcohol withdrawal chart readings only for the first and second days of his hospitalization. The possibility that chart entries had been discontinued as unnecessary was canvassed with Dr Carne in cross-examination. He acknowledged that possibility but said that, in his opinion, any discontinuation would have represented bad practice. Another possibility is that because John was taking Valium which treats the symptoms of alcohol withdrawal, it was not thought necessary to continue to record observations of those symptoms. 52 The hospital notes contain a report by a social worker. I note its reference to John's having told the social worker that he regularly drank two glasses of wine at lunch and four to six beers at night. Dr Carne assessed that consumption of six to eight units per day and said that it was regarded by the National Health and Medical Research Council as "harmful" for a male. 53 John saw the social worker on his third day in hospital. Her note should be recorded in full: "Pt referred to social worker by sister 8E for assessment of social situation. D/W pt - 9/2/93 Mr Seeley lives in a unit which he shares with another man (boarder). Mr Seeley stated that he owns several properties & very financially secure. He is employed by the Housing Department at Maroubra. He has been married in the past but divorced for many years. Until his father died 5 years ago, Mr Seeley lived together with him. Mr Seeley has often felt very lonely and continues to seek a permanent relationship with a woman and 'settle down'. Mr Seeley spoke of a significant relationship breaking down in November '92. He had hoped to marry the woman in May this year, but she cancelled all plans & withdrew from the relationship altogether. Mr Seeley is still upset about this & seems to still hold a thread of hope of things 'working out' although acknowledges that this is unlikely. Mr Seeley stated that he has spent most evenings in 'the club' with mates since the breakdown of the relationship. He stated that he drinks 2 glasses of wine with lunch and up to 4-6 beers each night. His alcohol intake was apparently one of the concerns in the relationship difficulties. He acknowledges that his alcohol intake was high and seemed to have some realization about the effect on his health. Mr Seeley is in agreement to being seen by Sybil Anderson, Drug & Alcohol, Clinical Nurse Consultation for assessment of alcohol problem & advice/referral for counselling &/or appropriate management. Mr Seeley is also aware that his personal appearance & hygiene has not been ideal. It has been an issue at work and for his most recent partner. Certainly his self esteem is lower due to the loss of the relationship but it seems that poor hygiene etc is not a new problem. He seems to have some insight about this. He may benefit from some counselling in regard to the relationship and personal/social skills as well as counselling re alcohol intake. Plan - Referral to Sr Sybil Anderson, D&A, CNC."

The references to John's still being upset about the breakdown of his relationship is consistent with the reference to depression when his history was taken upon admission to the hospital. 54 The Discharge Summary shows that John was released from hospital on 17 February 1993. That was a Wednesday. He was to return on Friday 19 February 1993 for further medication. Warfarin and Valium were to be continued after discharge and pending the return two days later. 55 There was no evidence from anyone who had actually seen or treated John while he was in hospital. The defendants sought to read an affidavit of Professor Chesterman, a haematologist whose name appeared in the relevant hospital records. I rejected that affidavit because of the deponent's own statement that, while he had some independent recollection of the admission, it was "not sufficient to be of material value". Subsequent hospital treatment 56 John again sought treatment at Prince of Wales Hospital on 10 December 1995, complaining of pain in his right leg. A nursing report at the time of arrival refers to that complaint and says, "Otherwise looks well but slightly unkempt". Another note, apparently by a doctor, says: "alert, oriented, afebrile, anxious/tremor"

Valium was prescribed. 57 On 21 November 1997, John again went to Prince of Wales Hospital complaining of a red, painful eye. He apparently reported that he had been drinking at the club and had no recollection of having injured his eye. The hospital records state on two occasions that he smelled strongly of alcohol. 58 On 4 June 1998, John was brought to Prince of Wales Hospital by ambulance after being found lying on the ground. There was no injury but he again smelled strongly of alcohol. The ambulance report says he was "confused". 59 John was taken to the hospital again on 14 June 2001 after collapsing in the foyer of the block of units where he lived. He had choked on a piece of steak. Brain damage followed and he died on 19 June 2001. The expert evidence 60 I have already referred to aspects of the evidence of Dr Carne, a psychiatrist called by the plaintiff. In his report dated 29 September 2003, Dr Carne listed the documents to which he had regard, including not only the hospital records and notes already mentioned, but also the main affidavits filed in the proceedings, documents from the Department of Housing and records of later admissions to Prince of Wales Hospital (one in 1997 and the other shortly before John's death in June 2001). Dr Carne's opinion is that, at or around 18 February 1993, John's mental capacity was affected by alcohol dependence/abuse, chronic brain damage, depression and the effects of medication. The basis for the opinion as to alcohol dependence/abuse has already been explored. As to the chronic brain damage, Dr Carne extrapolates from the opinion as to alcohol dependence/abuse, observing that chronic alcohol abuse "can lead to" alcohol amnesic syndrome, "a type of dementia". In relation to depression, Dr Carne referred only to the reported depression stemming from the relationship breakdown. Referring to the effects of medication, Dr Carne says: "During his last period of hospitalisation, Mr. Seeley was treated with antidepressant medication, fluoxetine, at a dose of 20mgs a day, sedative medications oxazepam at a dose of 30 mgs a day and diazepam at a dose of 50mgs a day. These medications may all impair memory and lead to sedation and tranquilisation. On the date of the making of the Will on the 18th February Mr. Seeley had been discharged from hospital for one day. There is no concrete evidence of which medications he was taking the day after he was discharged from hospital, that is to say, whether he continued on the medications prescribed by the doctors or whether he ceased them. In either case, his mental functioning would have been affected. If he had continued on the sedative medications, his memory could have been impaired and he could have been sedated and in a vague frame of mind. If the medications had been stopped, the result could have been elevated level of agitation with the possibility of precipitation of an alcohol withdrawal syndrome, leading to delusions hallucinations, high levels of anxiety and fear. No medical records were available to me describing his mental state on that date."

(When Dr Carne refers to "his last period of hospitalisation", he obviously means to refer to the period 9 February 1993 to 17 February 1993; also, he stated in cross-examination that the reference to 50mgs of diazepam was incorrect and should have been a reference to 15mgs.) 61 In cross-examination, Dr Carne conceded that Mr Henwood's evidence could be inconsistent with the inferences he had drawn, although he emphasised that it is possible for persons with dementia to function efficiently if their tasks are routine and well known. The process by which Dr Carne reached his overall conclusion was described in cross-examination as follows in the immediate context of the 1997 hospital treatment: "If you read the records, you can see that he had a trauma and was intoxicated and unable to remember the trauma. It is not the smell of alcohol that leads to the pathognomonic induction. It is the fact this he had been drinking so much that he couldn't remember something as serious as a trauma. That suggests a high level of intoxication and that high level of intoxication, to the extent that you don't remember, is pathognomonic brain damage or alcohol consumption to the level that could cause brain damage.

Alcohol dependence is a chronic condition. What we are looking at are little pictures of it along the way. These snapshots form a longitudinal picture and the conclusion that I draw from this is that the individual we are talking about had a severe alcohol abuse problem that was likely to be of such an extent that brain damage could occur." 62 The expert called by the defendants is Dr Williams, also a psychiatrist. He reviewed virtually the same material as Dr Carne. Dr Williams' overall conclusion is that John probably drank at a level which could have been injurious to his health. He makes the point, however, that none of the contemporary medical records reports any testing of John's cognitive functions. The conclusions as to John's capacity at and around 18 February 1993 are stated as follows: "11. The deceased had been discharged from hospital on the day before he apparently gave instructions and signed the alleged will of the 18/2/1993. He had been in hospital since the 8/2/93. Although there are comments that the deceased was anxious and agitated, particularly in the early part of this admission, there are no notes of his being confused or having cognitive impairment. He gave a reasonable account of his situation to a Social Worker on the 10/2/1993. His cognitive function was not formally tested, which suggests none of the hospital clinicians suspected significant cognitive impairment. The deceased apparently was at work on Friday the 5th February, presented himself to Accident and Emergency on Sunday the 7th February, carried out the recommendation he was given to see his general practitioner the following day, had the recommended investigation and returned to hospital to be admitted and appropriately treated that evening. After inpatient treatment ended on the 17th February 1993, he apparently arranged to make a new will on Thursday the 18th February and returned to work on Monday the 22nd February. He had to attend the hospital and then his doctor after his discharge to have blood tests and adjustments of the dosage of anticoagulant (Warfarin). All of this is the behaviour of a reasonably competent person. 12. There is insufficient evidence available to me to support a contention that, on the 18th February 1993, the deceased was suffering from a major or significant impairment of cognitive function. 13. He was noted to be anxious in hospital. I am not clear whether he was often or always anxious (anxious by temperament) but he appears to have suffered from anxiety and/or depression or some other psychological or emotional disorder at times. While in hospital he may have been anxious or more correctly fearful because of the possibility that the deep venous thrombosis could cause a pulmonary embolus and sudden death. This may have spurred him to consider his own possible demise and to make arrangements as quickly as possible about the disposal of his assets after death. I emphasise that this is supposition on my part, although it represents a strong hypothesis to explain his anxiety and his apparent haste after discharge to make the alleged will. He did present to Prince of Wales Hospital on two more occasions with suspected deep venous thrombosis, once on the 10/12/95 referred by his general practitioner and once apparently self-referred on the 21/4/99. At the 1999 presentation he was noted to be anxious. 13.1 Another possible explanation for his agitation and anxiety is that of alcohol withdrawal. This generally occurs 6-24 hours after ceasing alcohol. The deceased was noted to be anxious on presentation to the hospital on Sunday 7/2/1993, which makes this possibility unlikely, but certainly does not rule it out. The hospital staff nevertheless took the precautions of monitoring the deceased for signs of withdrawal, and giving him regular sedation (valium) from the day after his admission. 14. There is insufficient evidence available to me to support a contention that, on the 18th February 1993, the deceased was suffering from anxiety or depression of such a degree that it could interfere with his ability to make a valid will. 15. The deceased, while in hospital for eight days and presumably on the day following his discharge was taking several drugs with potential effects on cognition and volition (will). He had apparently been taking one of these (Prozac) before admission. This is an antidepressant primarily and it is unlikely to have had any significant effect on cognition, even if it had been commenced during admission. The other two drugs were Valium (which he took 5 mg three times a day) and Serepax (which he took 'two tablets' either 30 or 60 mg total at night). Both these drugs belong to the same pharmacological family - the benzodiazepines. The main difference between their actions is in the onset and duration of their action. Serepax usually has a fairly rapid onset of action and the action lasts about six to eight hours. Valium has a slower onset of action and this about ten to twelve hours. Both can cause sedation, i.e. reduced anxiety and agitation, sleepiness, slowed reaction time, poor concentration and difficulties with working memory. With such 'sedative-hypnotic' drugs there is rapid development of tolerance. That is, a person taking these drugs, within a few days to a week, will become tolerant to many of the effects of the drug. Tolerance developed to one sedative drug will often extend to another, such as alcohol. With tolerance comes the propensity for a withdrawal reaction. Tolerance is thought to be related to increased sensitivity of neurons (nerve cells), particularly at the synapses between neurons. Once tolerance has developed and the drug is withdrawn the oversensitive neurons react excessively in the opposite direction to the action of the drug. In the deceased's case, he presumably had a high tolerance to alcohol and was thus able to take relatively high doses of Valium and Serepax during the admission in February 1993 without obvious signs of oversedation or sleepiness. By the time of the discharge from hospital on the 17/2/93 he does not appear to have been showing any gross signs of anxiety or agitation. 16. Although the drugs the deceased was taking on the 18th February 1993 may have had some effect on his cognitive ability, I believe, on the evidence available to me that such an effect would have been slight." 63 In the course of cross-examination, Dr Williams fairly conceded that, while he had expressed particular opinions as to the likely impact of the several influences at work upon John, there was at least a possibility that the impact could have been more severe. In other words, he recognised that hypotheses at odds with his conclusions were open; and, while Dr Williams referred in various places to possibilities, his evidence cannot, of its nature, rule out a finding that the matters described as possibilities are more accurately regarded as probabilities. The making of the will 64 Both expert witnesses assumed that John had given instructions for the will on the day the will bears, 18 February 1993. Mr Back's evidence is that instructions were given on the afternoon of 17 February 1993, that he prepared the will later that day or on the next day, 18 February 1993, and that John came back to the office on the afternoon of 18 February 1993 and signed the will in the presence of Mr Back and Ms Kagan. 65 Although Mr Back did not have any independent recollection of actual dates, I accept his account. The will document bears the date 18 February 1993. There is an entry in the office diary "John Seally (sic)" between 3 pm and 4 pm on 17 February 1993. This, as I have said, is in the handwriting of Sonia Cordwell, an employee who was not called. Mr Back typed the will himself. It is unlikely that Mr Back would have drafted and typed the will while John waited. Mr Back explained that he had used either an earlier will of John's (no copy of which was in evidence or could be located by Mr Back) or a precedent in preparing the will. He had to retrieve the other document from the word processing system and adapt it. The earlier will had been made in 1990 and was apparently unrevoked. I quote from the cross-examination of Mr Back: "Q. You have given evidence as to the existence of a will dated 29 November 1990? A. That's correct.

Q. Which you have been unable to locate? A. That's correct.

Q. And the terms of which you cannot recall? A. No, I can't.

Q. Did you have a copy of that document with you when you spoke to John Seeley on each of the 17th and 18th February 1993? A. I can't recall.

Q. Can you recall whether you discussed with John the provisions of that will in the course of taking instructions for the new will? A. No, I can't.

Q. You understood, did you not, that John was asking you, as you say, to change his will? A. That's correct.

Q. And is it your evidence that you cannot recall in those circumstances having discussed with him the provisions of his existing will? A. No, I can't recall that.

Q. You can't remember that one way or the other? A. No, I can't.

Q. Your evidence, and correct me if I am wrong, is that in the preparation of the new will you proceeded to amend some form of pro forma will that you had on your computer system? A. That's correct.

Q. Did you not, in the course of making those amendments, refer back to the 1990 will? A. The amendments could have been made in one of two ways. One way would have been to call up the 1990 will and make the changes.

HIS HONOUR: Q. On the computer? A. On the computer, or to call up the precedent and make the changes to the precedent document.

LINDSAY: Q. Is it your evidence that though you can see those two procedures as possibilities, you can't say which of them, if either of them, was in fact followed? A. No, I can't." 66 It follows from the sequence of events described by Mr Back that John gave instructions for the preparation of the will within a few hours of leaving hospital. He had been warned on discharge that he should not consume alcohol while taking Warfarin which he was to continue taking at least until he went back to the hospital on 19 February 1993. Mr Back did not know that John had come virtually straight from the hospital to give instructions on 17 February 1993. He thought that John was on his way home from work, as he often called at the office after work. 67 Mr Back's account of his conversation with John on 17 February 1993 is contained in his affidavit of 19 December 2003: "I recall that when John attended upon me to give me instructions in relation to the Will we had a conversation to the following effect: John said: 'I want to change my Will to leave my Estate to Vernon.' I knew who Vernon Groves was as he was the Real Estate Agent with whom I also worked in handling John's affairs. I said: 'Why are you leaving so much to Vernon?' He said: 'He has been very good to me.' I said: 'You should make some provision for your son. He will make a claim on the Will. You will have to leave him something.' He said: 'Can I have a paternity test?' He then went on to say the following: He said: 'What do you reckon I should do?' I said: 'You've left everything to Vernon. Don't you still pay maintenance for Harry?' He said: 'Yes, but what's that got to do with anything?' I said: 'Well if something happens to you, you know Harry won't get any more maintenance because you're dead and his mother will probably make a claim from the Estate for some money for Harry. I think you should leave him something.' John said: 'How much do you reckon?' I said: 'Well that's not for me to say. You have to decide how much you would like to leave him.' John said: 'Cash?' I said: 'That probably won't work because if you live a long time the cash money might not be enough.' John said: 'What about ten percent? I've got a lot of properties. The properties will go up in value and he will get a bit of that too. How do I know he's my child?'" 68 Mr Back was extensively cross-examined on events of 17 and 18 February 1993. Certain additional details of the conversation with John emerged but the overall picture is not materially different from that appearing from the affidavit, as set out above. 69 I do, however, have a reservation about Mr Back's evidence. It goes to the quality of Mr Back's recollections based on his usual practice. Towards the end of his cross-examination, Mr Back was taken to certain conveyancing files which made it clear that statements he had made about matters in which he acted for John, based on his usual practice and office record-keeping, were inaccurate. This, coupled with his evidence about the taking of instructions for the will and the preparation and execution of it, gives rise to reservations about the aspects of his evidence above and beyond the basic facts that John attended the office on the afternoon of 17 February 1993 and again on the afternoon of 18 February 1993, that Mr Back drafted and typed the will between the two visits and that it was executed by John, with Mr Back and Ms Kagan as attesting witnesses, on the latter day. Mr Back's substantial lack of independent recollection and his reliance on usual practice (a basis that was shown to be problematic) cause me to have reservations about his evidence of actual conversations with John on the occasion on which instructions were taken. In cross-examination, he gave quite detailed evidence of what he said to John about various matters, including capital gains tax. That evidence must, in my opinion, be regarded as no more than statements of Mr Back's practice in will-making situations of the kind in question. It attracts the reservation to which I have referred. John's relationship with Mr Groves 70 I have already referred to John's association with the estate agency business conducted by Mr Groves and to his habit of calling regularly at Mr Groves' office. In his affidavit, Mr Groves sought to emphasise the personal aspects of his relationship with John, although accepting its essentially commercial foundation. He said in evidence that there were two sides to their relationship, one business and the other personal. He sought to bolster his account of a personal relationship by recounting in his affidavit: "Although his formal name was Michael Pegus Seeley, Michael was in fact known as 'John' Seeley." 71 In cross-examination, this attempt by Mr Groves to show closeness to John came undone. His statement about John's "formal" name and a difference between that name and the name by which he was generally known was shown to be wrong. He also conceded that his conversations with John were confined to property matters and that their contacts were business contacts: "Q. But in connection with his properties, do you say? A. Well, every time John spoke to me it was about properties, because that was his main thoughts, properties. Now it was either about his properties, or about other properties that he had seen and he wanted to discuss, that he had seen with other people.

Q. But you didn't socialise with him, for example, in the sense of going to his home? A. No.

Q. You didn't socialise with him in the sense of him coming to your home? A. No. It was arranged that he was to come to my home just prior to his death, but that didn't take place." 72 Mr Groves confirmed in cross-examination that any social contact between himself and John did not go beyond odd occasions on which they stopped for coffee when going to or returning from a property visited in the course of the professional relationship, plus social aspects of the conversations at the estate agency. 73 Mr Groves said in his affidavit: "John had always gambled."

That is not borne out by any of the other evidence. In cross-examination, Mr Groves said: "Q. Is that the truth, as you understand it? A. Well, as I understand it, he gambled. He went to the TAB occasionally and put bets on. That's gambling to me. I'm a total non gambler, so anyone that puts a bet on anything is a gambler. It is a matter of definition."

This was another attempt to claim a familiarity with or closeness to John beyond that actually enjoyed by Mr Groves. 74 As an estate agent, Mr Groves did not act exclusively in the interests of John. Evidence was given of the circumstances in which John came to purchase the shops and offices in Perouse Road Randwick to which reference has already been made. The vendors were members of a family named Lai. They too were clients of Mr Groves. The principal member of the family lived in Canada and Mr Groves managed the property. In late 1996, Mr Groves sent that family member a letter stating that he might be able to obtain a net price of $1 million for the property. Mr Groves was instructed to market the property. As a result it was sold to John for $1,035,999 (gross) under a contract made in October 1997. Mr Groves gave evidence that, when he first approached Mr Lai in late 1996, a price of $1 million (net) was not achievable. That is the effective price John agreed to pay towards the end of the following year. 75 The Perouse Road property included a shop or office from which Mr Groves' estate agency business was conducted. Mr Groves occupied the premises under an informal tenancy arrangement with the Lai family. The sale by the Lai interests (represented by Mr Groves) to John occurred at a time when Mr Groves was about to retire and sell the estate agency business to another agent. Mr Groves agreed in cross-examination that, because John was an existing property management client of the business, the sale of the Perouse Road property to John meant that the management of that property would remain with the business. That no doubt enhanced the value of the business Mr Groves was selling. 76 The events I have just related emphasise that Mr Groves' association with John was of a business nature. Mr Groves had no qualms about soliciting a purchase by John from a vendor represented by Mr Groves at a price that, about a year beforehand, he had seen as not achievable and in circumstances where there might well be a collateral benefit to Mr Groves by way of continuity of property management by the business that he was in the process of selling. In his affidavit, Mr Groves deposed: "I did my best to help him manage his financial affairs generally."

At least on the occasion recounted, such help entailed elements of collateral advantage to Mr Groves of which John must be taken to have been unaware. 77 The overall conclusion with respect to the relationship between John and Mr Groves is that it was a business relationship of estate agent and client; that there was no social meetings beyond occasional cups of coffee at cafes in the course of business travel; that John called regularly at the estate agency to discuss business matters and to chat generally; and that there was some social or personal dimension to those chats. But the relationship was not one in which Mr Groves considered himself bound by considerations of friendship to avoid a situation in which John might, to Mr Groves' knowledge, become party to a transaction in which Mr Groves' professional duty was owed to someone else and which involved collateral benefits to Mr Groves. Assessment of John's circumstances 78 After his separation from Linda in 1982, John's life centred upon his work, his property investments and his social activities, predominantly at the Coogee Legion Club. He gave up work at one stage but later went back, mainly, it seems, because he thought he was spending money too quickly. He was keen on accumulating money and his work probably meant little more to him than a means of deriving income. Property investment was the activity that gave him satisfaction. It enabled him to regard himself as a man of means. 79 His association with Harry formed part of his social life dominated by the club. As Harry was growing up, John never took him anywhere except clubs and hotels. The whole of their contact was in that environment. It came to involve the Coogee Legion Club almost exclusively after John had helped Harry obtain a job there. 80 To Mr and Mrs Groves and their son, John presented himself as a man of property. His habit of calling on Mr Back unannounced showed that he considered himself worthy of the attention of his solicitor whenever he wished. At work, on the other hand, he was a clerk in a relatively undemanding and routine position. In relation to Harry, he had some lingering doubts on the question of paternity. He had paid maintenance, albeit grudgingly, it seems. Linda had no claim on him financially and, despite their contact from time to time (principally in relation to Harry), she belonged to a closed chapter of his life. At the time of his hospitalisation in February 1993, he was still getting over the failure of a relationship with another woman. There is evidence that he socialised at the Coogee Legion Club but no reference to any particular friend or friends. Mr Groves said that John's funeral was "packed". Mr Henwood said that all the staff from the section in which John worked attended the funeral. 81 The overall impression is that John led an isolated life. He obviously had some affection for and attachment to Harry. But it was far from a normal father-son relationship. Young boys normally enjoy activities with their fathers beyond meals at clubs and hotels. Harry himself testified that John never took him to the beach, the cinema or sporting events or indulged in other activities that fathers and sons might be expected to enjoy together. 82 There can be no doubt that John was a heavy drinker. By 1982, his condition was such that he drank regularly at lunchtime and often came home drunk. Such a pattern appears to have existed for the remainder of his life. It may be inferred that it existed for a number of years before 1982. The likelihood is that his heavy and constant drinking - apparently ingrained by age 36 - began in his early adult life. 83 The heavy and constant drinking was apparently not something that became obvious to Mr Groves, Mrs Groves or their son, although they sometimes smelled alcohol on him. Nor, it may be noted, did drinking or suspected alcoholism play any expressed part in any of the adverse comments in John's employment record. Although there are references to memory lapses, carelessness and poor personal hygiene, there is no overt suggestion that these were the product of an alcohol problem. The personnel officer who prepared the report dated 9 August 1990 probed the questions of "recent personal trauma" and "psychological difficulties". He also referred to a medical examination and a report by the Director, Medical Examination Centre. There is no reference to alcohol as a problem. But this does not mean that the matters subject of adverse comment did not, as a matter of fact, have their source in alcohol abuse. 84 I am somewhat troubled by the differences between Ms Kagan's evidence and that of Mr Back and Ms Boyd. Ms Kagan spoke of occasions on which John came to the solicitors' office "very drunk" and "drunk in all ways". Ms Boyd, on the other hand, said that John did not appear to be drunk when he visited the office, did not slur his words, was not unsteady on his feet and did not have shaking hands. Mr Back testified that, while it was clear that John had been drinking on some occasions when he visited the office, he was never "affected" by alcohol "in the sense of being drunk". With the evidence in this state (and in light of the fact that Ms Cordwell was not called by those seeking to uphold the will), the inference I draw is that John often visited the office after drinking alcohol and that the fact that he had consumed alcohol was, on those occasions, noticeable but that his state was not such as to cause Mr Back to question his ability to function in an apparently normal way. 85 As I have said, the question of John's testamentary capacity is to be addressed by reference to his condition on 17 and 18 February 1993. Evidence about his condition in preceding years is relevant, as is evidence about his condition subsequently, in that, in each case, there may be bases for inferences relevant to the situation at that particular time. 86 Perhaps the most significant point relevant to an assessment of his condition on the days in question is that the first of his two visits to Mr Back (the visit on 17 February 1993 on which he gave instructions) occurred within hours of his departure from hospital after being there for nine days. Having regard to the medical records in evidence, it is unlikely in the extreme that he consumed alcohol during that period of nine days. There may have been some alcohol withdrawal symptoms but that condition was treated with Valium which was to continue after discharge on 17 February and at least until his return to the hospital for follow-up on 19 February. The medical witnesses are agreed that Valium counters the effects of alcohol withdrawal. It is therefore probable that, on the afternoon of 17 February 1993, John did not exhibit symptoms such as tremor and perspiring which are the visible signs of alcohol withdrawal. 87 In light of Mr Back's evidence generally as to John's state on the various occasions he visited the office (plus Ms Boyd's corroborating evidence) and Ms Kagan's testimony that she would not have witnessed the will had John been drunk when he attended the office on 18 February 1993, I am satisfied that John was not, in an immediate sense, so affected by alcohol on 17 and 18 February 1993 as to compromise what was then his normal level of intellectual functioning. In other words, he was not then incoherent or befuddled as a result of recent alcohol consumption. 88 There are, however, three further possibilities to be addressed: first, that John's capacity was impaired by the drugs he was given in hospital and was instructed to continue after his release; second, that John's relevant powers of reasoning were impaired by depression; and, third, that alcohol consumption over a period of years had brought about mental degeneration and dementia. I consider the third possibility first, since it gives rise to a fourth, namely, that the effects of any such mental degeneration and dementia were exacerbated by the effects of drugs or depression or both. 89 Was John affected by a form of alcohol-induced mental degeneration in February 1993 that produced impairment of his ability to function efficiently across the full range of intellectual tasks? At the workplace in 1990, he was said to be, on occasions, "unable to remember simple instructions, often asking for them to be repeated". Three officers noted this or similar shortcomings at that time, while his personal hygiene showed that he lacked the capacity to deal adequately with antisocial tendencies. The episodes that led to hospital attendance in 1995, 1997 and 1998 also show that there was ongoing inability to function according to normal standards of mental efficiency. When he attended hospital on 10 December 1995, John complained of a pain in his leg and was observed to be both "alert" and "oriented", although "anxious/tremor". Valium was prescribed. On 21 November 1997, he apparently had no recollection of injuring his eye which was red and painful after a visit to the club. On 4 June 1998, he was described as "confused" after being found lying on the ground smelling strongly of alcohol. 90 The hospital attendances in years subsequent to 1993 involved episodes occurring, respectively, almost three years, almost five years and some five and a half years after the signing of the will document. Each indicates adverse effects of alcohol consumption. The reference to "tremor" and the prescribing of Valium on the first occasion bespeaks symptoms of alcohol withdrawal syndrome. The inability to remember the cause of injury on the second occasion indicates seriously impaired mental functioning. And the "confused" comment on the third occasion, coupled with the circumstances in which he was found, indicates like impairment. The impairment manifested in 1995, 1997 and 1998 is consistent with that shown in the workplace in 1990. 91 Three aspects of Dr Carne's evidence are, to my mind, of particular importance. The first is that the 1993 hospital discharge summary contained what "any doctor reading it" would understand to be a statement that treatment of alcohol withdrawal syndrome had taken place in the period 8 to 17 February 1993, so that one must infer that the habit of alcohol consumption was so ingrained and involved such levels of intake that brain damage was likely. 92 The second aspect of Dr Carne's evidence is the observation that it is possible for persons with dementia to function efficiently if their tasks are routine and well known. John's clerical work at the Department of Housing was of a generally undemanding kind. Mr Henwood described the tasks as "not elaborate tasks" with which "a lot of people may have got bored". The apparently orderly functioning at work after the overt lapses of 1990 therefore do not militate against a finding of mental impairment or justify a view that the impairment which manifested itself in 1990 was somehow merely a passing phase later rectified. 93 The third aspect of Dr Carne's evidence that I consider of particular importance is the observation that what he called the "longitudinal picture" formed by a series of "snapshots" warranting the conclusion of "a severe alcohol abuse problem that was likely to be of such an extent that brain damage could occur". 94 Dr Carne's overall conclusion of a likelihood of brain damage was not shared by Dr Williams; but there was no real disagreement between them, except as to the point on the competent/incompetent scale at which John should be placed. The possibility of cognitive impairment through alcohol-induced brain damage is certainly not ruled out by Dr Williams' evidence. 95 That John was suffering alcohol-induced mental degeneration in February 1993 is borne out by what he actually did by way of purporting to make a will at that time. He was obviously alarmed by the thrombosis episode that caused him to be admitted to hospital. He no doubt feared that he might die. That, it may be inferred, caused him to make moves towards preparation of a will immediately he left hospital at a time when he was still taking drugs capable of further impairing mental functions. 96 Mr Back's evidence (about which I have the reservation expressed earlier) is that, when John told Mr Back that he intended to leave all his property to Mr Groves, Mr Back asked why; and that John's answer was: "He has been good to me". The evidence does nothing to explain why John should have regarded Mr Groves as having been so good to him as to be deserving of the whole of his estate which, as John himself is reported by Mr Back to have said at the time, included "a lot of properties". The relationship with Mr Groves was a business relationship only. They had never indulged in any social activities together outside the business relationship. Mr Groves played a part in the "man of property" aspect of life from which John probably derived pleasure. But he was not, on any objectively rational basis, someone John could be expected to have considered as the sole beneficiary of a sizeable estate. There was, in other words, such an element of perversity about the original testamentary intention which, on Mr Back's evidence, John outlined at their meeting on 17 February 1993 as to warrant an inference that John's stated intention was the product of a mind not capable of appreciating matters of moral duty and making rational judgments about the content of a will. 97 John was a divorced man with a son aged twelve whom he had always acknowledged, with whom he had continuing contact and to whose maintenance he was contributing. He had no other relatives. Such a man would not, as a matter of rational testamentary decision, elect to leave all of his considerable property to an estate agent who acted for him in a professional capacity and with whom he enjoyed pleasant chats at the estate agency during frequent but brief business visits. One could readily understand a situation in which a person with dependants or relatives, having been frightened by a sudden life threatening illness, would take immediate steps to put his or her affairs into order by making a will in favour of such persons. But a sudden life threatening illness would not explain, in any rational way, immediate moves to make a will in favour of a mere business acquaintance. On Mr Back's evidence, John included Harry as a minor beneficiary only because Mr Back warned him that the will might be challenged if he did not. 98 My conclusion is that, as a result of the thrombosis episode and hospitalisation, John turned his mind to the question of what would happen to his property if he died. The speed with which he acted in visiting Mr Back is consistent with a pressing desire to put his testamentary affairs in order. But he already had a will. Mr Back gave evidence of John's having made a will in November 1990. That will could not be found and Mr Back had no record or recollection of its content. The life threatening experience did not occur in a context imperatively and immediately demanding replacement of the 1990 arrangements (whatever they were) by a will leaving everything to Mr Groves. 99 Mr Back testified that, when John visited Mr Back on 17 February 1993, he said that he wanted to "change" his will. That implies that John remembered the will of 1990. Three aspects of the evidence lend credence to the view that, on 17 and 18 February 1993, he did not remember the existence of the prior will. The first is the haste with which he acted on being released from hospital, as already mentioned. The second is the fact that Mr Back's evidence does not refer to any discussion of the content of the earlier will when John visited Mr Back on 17 February 1993. They launched straight into a discussion of the content of the will which John was asking Mr Back to prepare. The third comes from a part of the testimony of Linda to which I have not previously referred. 100 In her first affidavit, Linda gave evidence of her contacts with John at various stages, including in the period between their separation in 1982 and Harry's attaining the age of 18 in 1999, at which point John ceased paying maintenance for Harry. That affidavit contains the following passage: "31. I do not recall John ever saying to me that he had made a Will. However, on some occasions he said to me words to the effect, Do you think I should make a will? On those occasions I generally responded by saying words to the effect, Why do you need a will? You are still young. I thought that, in the absence of a will, all a person's property passed to his or her children anyway; and I believed that John intended that all his property would pass on his death to the Plaintiff, as Harry Senior had said. 32. In the course of these conversations, and at other times as well, John often said words to the effect, There is no point in making a will. All my property will go to Harry [the Plaintiff] anyway. And who else do I have that I could give it to? He is my only son. Harry will be set for life because of why my father did for me and what I will do for him. Everything I have will go to Harry, just as everything my father had came to me. " 101 Referring to John's final admission to hospital on 14 June 2001 (a few days before his death), Linda deposed: "36. A day or so before John went into hospital at this time he telephoned me several times at home during the course of one day. On each of those occasions he said words to the effect, I am worried about Harry [the Plaintiff]. How is his health? How is his work going? How is his TAFE course going? Does he get on well with friends? On each occasion I assured him that the Plaintiff was well. 37. On some of those occasions John also said to me words to the effect, Do I need a will? I responded, as I generally did, with words to the effect, You are still very young. He seemed very worried about something, but it was not clear to me why he was worried. I said to him words to the effect, Why are you so worried? Why all these questions today? He did not respond other than to sigh and to say something like, Ah …" 102 It was put to Linda in cross-examination that the conversations recounted in paragraphs 31, 32 and 37 never occurred. She maintained that they did. She also gave further evidence about the conversations deposed to in paragraphs 36 and 37: "Q. You say in paragraph 36 that you got several telephone calls? A. Yes, sir.

Q. How many is that? A. The first call was 10 o'clock, somewhere in the morning. Then I think he must have another one at eleven, when he had a break, then he must have another one when he had lunch, because he was at work when I asked him. Then he had again after that, and the last call was 4 o'clock.

Q. So he rang you from his workplace? A. Yeah, he was working in the workplace, I think, because I asked him, "Where are you" in the morning. He said, "I'm at work."

Q. You say that he then said to you at 3 o'clock or 4 o'clock, just a couple of days before he died, "Do I need a will"? A. Yes, he said it again, so I said, "Why, you are still very young? What's wrong?" I said to him all this conversation, and he just said, he put the telephone down, so that was the last time I talked to him.

Q. Do you suggest you were his general confidant, his general advisor, your husband? A. What did you say?

Q. Do you suggest you were advising him generally, giving him advice about his will? A. Well, he asked me, "Do I need a will?" So I, all I can say, "Why? You are still very young." 103 This evidence indicates that John had something of an ongoing preoccupation with the subject of will-making, coupled with an ongoing belief that he did not have any existing will. On Linda's evidence, some of the conversations reported in paragraphs 31 and 32 could have occurred after 29 November 1990, being the date on which, according to Mr Back, the earlier will had been made. The conversations reported by Linda in paragraphs 36 and 37 occurred somewhat more than eight years after John had executed the will document the subject of these proceedings. 104 I am not satisfied that, on 17 and 18 February 1993, John remembered that he had an already existing will. I am therefore not satisfied that, when he went to see Mr Back on 17 February 1993, he spoke of changing his will, as distinct from simply making a will. 105 I return now to the first and second possibilities referred to at paragraph [87] above. Dr Williams stated that "the drugs the deceased was taking on the 18th February 1993 may have had some effect on his cognitive ability", although Dr Williams' view of any impairment is that "it would have been slight". This obviously assumes that, after his release from hospital on 17 February, John continued to take medication as instructed. Dr Carne adverted to the possibility that John may have ceased taking the medication. In his opinion, John's mental functioning "would have been affected" whether he continued the medication or stopped taking it. If the medication had continued, "his memory could have been impaired and he could have been sedated and in a vague frame of mind". If the medication had been stopped, "the result could have been elevated level of agitation with the possibility of precipitation of an alcohol withdrawal syndrome, leading to delusions, hallucinations, high levels of anxiety and fear". 106 As to depression, it is relevant to note that the notes made upon John's admission to hospital on 8 February 1993 referred to a pre-existing state of depression and to his taking Xanax, a medication used to treat depression. From this it is to be inferred that there had been an earlier diagnosis of depression, in the clinical sense, and a decision by a medical practitioner that it was sufficiently serious to warrant medication. It is also relevant to note the reference to depression in the social worker's report in the hospital records for the period 8 to 17 February 1993. The then recent break-up of John's relationship with a woman and the realisation that his alcohol consumption was the cause of relationship difficulties cannot but have caused depression. It is very probable that that further compromised John's ability to function normally in the matter of decision making with respect to testamentary matters. Conclusions on the revocation claim 107 Mr Back and Mr Groves, as the parties propounding the purported will, bear the burden of showing that they remain entitled to the grant of probate previously made by them. Failure by them to discharge that onus will lead to the revocation order Harry seeks. 108 In order to be satisfied that Mr Back and Mr Groves have discharged this onus, the court must see, as a result of a vigilant examination of the whole of the evidence placed before the court, that John was of sound mind, memory and understanding both when he gave instructions for the preparation of his will and when he executed it (a distinction that, in this case, presents no difficulty since the second event followed some 24 hours after the first). 109 In this case, I am unable, on a review of the whole of the evidence, to declare affirmatively that I am satisfied of John's mental competence on 17 and 18 February 1993. It is not, to my mind, affirmatively shown (as it must be by those who propound the alleged will) that, on those dates, John had sufficient mental capacity to comprehend the nature of what he was doing on his visits to Mr Back's office and the effects of his acts. He was, at the time, afflicted by a form of alcohol-induced mental degeneration that had manifested itself in the workplace in 1990, was seen again in connection with the hospital attendances of 1993, 1995, 1997 and 1998 and produced impairment of his ability to function efficiently across the full range of intellectual tasks. That condition was, on the balance of probabilities, exacerbated on 17 and 18 February 1993 by the effects of prescription drugs he was taking at the time and depression engendered by relationship difficulties and the life-threatening episode that had seen him hospitalised between 8 and 17 February 1993. The mental degeneration to which I have referred, coupled with the effects of drugs and depression, caused John to think that he had no will and that he must make one as a matter of extreme urgency. The aberrant nature of his thinking at the time is borne out by his unaided decision to leave the whole of his estate to a business acquaintance without any provision for his acknowledged son, which decision he changed only after being informed of the possibility that a will in that form might be challenged. 110 In the result, therefore, there must be an order that the grant of probate made on 23 October 2001 to Francis Joseph Back and Vernon Groves in respect of the purported will dated 18 February 1993 of John Michael Pegus Seeley be revoked and an order that the said Francis Joseph Back and Vernon Groves deposit the grant in the Registry of the Court. There will also be further relief in terms of paragraph 16(d) of the statement of claim as a prelude to an application by Harry Seeley for a grant of letters of administration of the intestate estate of John Michael Pegus Seely. Disposition 111 The relief I have outlined will be granted in the second proceeding (107958 of 2003). In light of that outcome, it is unnecessary and inappropriate that any relief be granted in the first proceeding (5569 of 2001) and the third proceeding (107087 of 2003). 112 I direct that agreed short minutes of orders to give effect to this judgment be filed by delivery to my Associate within 21 days. **********

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