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.