(c) The medical condition stemming from Mrs Shorten's stroke was essentially:
(i) A right homonymous hemianopea which is a blindness of the right half of the visual fields in both eyes which resulted in severe permanent visual impairment. She would have had difficulty seeing the right side of her surrounding environment.
(ii) A severe expressive dysphasia which is an impairment in the expression of speech. Her language would, as the lay witnesses had attested, ordinarily tend to be single words usually concrete expressions with occasional broken sentences.
(iii) A relatively less severe receptive dysphasia which is an impairment of understanding of the spoken word. Abstract words and complex information or syntax will be hard to absorb, at least unless conveyed with utmost patience.
(iv) The combination of these deficits tended to produce irritability and excessive fatigability. As to the latter, his Honour concluded that the expert view appeared to accord with the factual description given by Mr O'Halloran of the necessary pauses that occurred during his obtaining information from the deceased (par 112).
(v) The right hemisphere of the brain was relatively intact. This is concerned with visual perceptual skills, spatial and construction skills, spatial recognition and nonverbal memory. Mrs Shorten's ability to do tapestry and enjoy music was explained by this.
37 Foster AJ did not find the evidence of Dr May to be particularly helpful for reasons set out in paragraphs 95-99. The appellant has not demonstrated error in that regard.
38 His Honour's conclusions concerning Dr May was the subject of particular complaint by the appellant who in the written submissions relied particularly upon the opinion expressed by the doctor in a letter written on about 1 April 1997 to the Guardianship Board. In that letter the doctor stated:
I have very grave doubts that Mrs Shorten is capable of giving informed consent for a power of attorney. I do not believe that she is capable of giving informed consent in financial matters. This means that Mrs Shorten can only say yes and no most of the time and that she says yes more often than no. It means that she does not always appear to understand clearly what is asked of her or what is said to her and over the years that I've been caring for her I've often found that she gives the incorrect answer indicating that she has not understood what has been asked.
39 Assuming that this opinion is also reflective of an attitude as at the date of the will over twelve months earlier, I do not read this as destructive of the trial judge's conclusions about the overall impact of Dr May's evidence. I respectfully adopt his Honour's reasons stated at par 97 of the judgment.
40 The two specialists were a high experienced psychiatrist, Dr Bell and a highly qualified clinical neuro-psychologist, Ms Bennett. Each gave opinions based upon medical and nursing records together with the witness affidavits. Each agreed that the stroke had occasioned serious damage located in the right hemisphere of the brain.
41 Foster AJ accepted Dr Bell's evidence to the effect that the deceased retained a restricted ability to read. This was supported by a substantial body of the lay evidence.
42 There were obvious limitations with the expert medical evidence. These stemmed largely from the fact that the exact areas of damage to the left hemisphere had not been the subject of imaging by scanning equipment. This meant that the medical inferences were largely dependent upon the contested lay evidence. The specialists themselves acknowledge this. The critical findings in this part of the case were at pars 114-119 and it is convenient to set them out:
114. Dr Bell was of the view that given time and patience, Stanley's information conveyed in the Anzac Park discussion could have been understood by the deceased despite her brain damage. She could have followed, in the bank statements, the references to payments and could, in general terms, have understood, because of her intact right cerebral hemisphere, what Stanley was explaining to her. It is clear, also, from other evidence to which I have made some reference, that she would have been assisted in this area by her retention of memory of past events. I note, also, in relation to the Anzac Park episode, that, although Ms Bennett had originally expressed the view that the deceased would not have been capable of uttering the phrase "he promised" she later changed her mind, on the basis that, because the situation was emotionally charged, and because the word had been previously used in this discussion, it would have been possible for the deceased to have given expression to it, despite the fact that it conveyed a complex rather than "concrete" idea.
115. The expert evidence in the case does not deflect me from the view that I had formed as to Stanley's veracity and the accuracy of his recollection of what occurred between himself and his mother in the park. Indeed Dr Bell's evidence, which I accept, is supportive of this view.
116. As to the reference to the solicitor in the conversation in the nursing home, I am quite satisfied, on Dr Bell's evidence, that these words or something similar could have been uttered by the deceased and relate back to her expectation, based upon the conversation in the park, that steps would be taken to enable her to change her Will.
117. So far as the interview with Mr O'Halloran is concerned, it is quite obvious that expert evidence must be largely conjectural in the absence of a complete version of the actual conversation. The medical evidence indicated that there would have been quite obvious difficulties involved in the conveying by the deceased to Mr O'Halloran of information, particularly that contained in the third paragraph of his notes. Dr Bell was of the view that, in the circumstances, some cueing would have been very helpful in getting that information. I consider that, although he does not now recollect it, Mr O'Halloran was, more probably than not, armed with some information which would enable cueing to take place. Indeed he spoke of "prompting" in the passage cited above. Dr Bell's evidence, which I accept, in general, supports the view that I have formed, on the basis of Mr O'Halloran's evidence, that, at the end of the lengthy interview he had obtained, one way or another, from the deceased, the information contained in his note. In this regard I have carefully considered the evidence of Ms Bennett to the contrary. If accepted in full it would lead to the conclusion that Mr O'Halloran could not honestly have made the note that he did. I am satisfied that this was not so.
118. I have read and considered, more than once, the expert evidence in the case which was complex and lengthy. It is unnecessary to set it out. I found the evidence of Dr Bell more compelling that that of Ms Bennett, despite her obvious expertise. His evidence was, in my view, both consistent with and supportive of the lay evidence, which I accepted.
119. Accordingly, I am satisfied that when the deceased gave instructions to Mr O'Halloran, she had testamentary capacity and that when she executed her Will, two days later, she knew and approved of its contents. The Will being duly witnessed and attested in accordance with law, I find that the plaintiff has made out his case. He has dispelled the suspicion arising from the circumstances of the deceased's brain damage. The deceased's Will of 25 January 1996 should be admitted to Probate. It follows that the defendant's cross-claim should be dismissed.
43 I pass over his Honour's conclusions on the matter of costs. Suffice it to record that the formal orders ultimately made by his Honour were that probate in solemn form be granted of the deceased's will of 25 January 1996, the cross-claim was dismissed with costs, the plaintiff's costs were ordered to be paid out of the estate of the deceased and to be assessed on an indemnity basis and otherwise there was no order as to costs.
44 The appellant's written submissions do not sit very easily with the grounds of appeal and they were further refined in the helpful and focused oral submissions of Mr Wilson of counsel. I will confine myself to the oral submissions to the extent that I have not already dealt with them in passing.
45 It may be observed at the outset that the appellant does not challenge the trial judge's statements of legal principles concerning the issues facing him. His Honour properly recorded that the executor bore the onus of establishing testamentary capacity.
46 Nor is there any serious challenge to the primary factual conclusions stated in the judgment below. The Court was not invited to overturn the findings that resolved the fairly marginal conflicts between the lay and medical witnesses. These were resolved substantially in favour of the executor's witnesses. Nothing indicates that the trial judge misused his advantage stemming from his observation of witnesses in the hotly contested and fairly lengthy trial.
47 In part, the appellant's submissions turn upon a grievance stemming from the initiative taken by Stanley and Kevin in raising with the deceased their desire that she reconsider her 1979 will and in arranging for the deceased to be presented with the opportunity to do so through Mr McHugh and Mr O'Halloran. But there was nothing legally irregular in this conduct which I would observe was replicated by Noel himself. No issue of undue influence arises or could have arisen on the facts.
48 The appellant seeks to raise what I consider to be minor and technical inconsistencies in the judgment itself (see the appellant's submissions par 49) and minor inconsistencies said to arise within the evidence of Mr O'Halloran (see appellant's submissions par 50). The trial judge was clearly alive to the latter and he addressed them and resolved them in the judgment. As to the former, I read the judgment as arriving ultimately at the view that there was a degree of minor cueing or prompting by Mr O'Halloran in his lengthy interview with the deceased. This does not cast any doubt in my mind upon the essential thrust of his evidence nor does it undermine the trial judge's acceptance of the nub of Mr O'Halloran's evidence which was to the effect that it was the deceased who conveyed and confirmed her particular testamentary instructions and gave Mr O'Halloran her reasons for them.
49 The appellant's complaint that some of Mr O'Halloran's evidence was reconstructive is without any weight. Ample detail was provided and the broad substance is supported by the contemporary note as well as being consistent with the other evidence. The judgment certainly does not turn upon the fallacious logic of concluding that because the solicitor was satisfied as to testamentary capacity the trial judge had to be similarly satisfied. The learned judge probed the underlying facts just as he did in the course of explaining why he had found unhelpful Dr May's broadly negative conclusion as to the bottom line of the deceased's capacity to make a will. The submission that the Court essentially relied upon the opinion of the solicitor must be rejected.
50 The appellant's attack on the findings based on the acceptance of the evidence of Stanley Shorten, Donna Shorten and Maxine Crossley cannot be accepted. The trial judge carefully weighed their evidence and was entitled to prefer it for the reasons he gave. To the limited extent that Noel attacks the 1996 will because of its lack of provision for Jocelyn the matter is sufficiently addressed by par 86 of the judgment and what I have already said.
51 Mr O'Halloran disclosed in cross-examination and re-examination that he had a practice when dealing with aged would be testators. In his oral submissions, counsel for the appellant placed particular reliance upon this evidence which he sought to juxtapose with the evidence as to the deceased's limited communicative abilities. It remains quite unclear as to what the appellant submits flows from this because the deceased's limited ability to speak permitted her to communicate to a degree. The other findings establish that it was to a sufficient degree. The extent to which Mr O'Halloran followed his usual practice which included discussion about the Family Provision Act seems to me to be rather peripheral.
52 Certainly, Foster AJ had a body of additional evidence based upon Mr O'Halloran's actual recollection and his contemporaneous notes. The appellant submits that it would be insufficient to follow the solicitor's usual practice in the case of a person with a speech and other deficits of the deceased. The fallacy in this argument is that it is quite clear that Mr O'Halloran did much more than what he said was his usual practise. For one thing, it is to me inconceivable that he would have spent one and a half hours in the normal run of cases involving simple wills of this nature.
53 The appellant specifically attacks the trial judge's findings about the level of information in Mr O'Halloran's possession before he took instructions from the deceased. We were referred to the evidence of Mr O'Halloran (Blue 49), Stanley (Blue 13), Kevin (Blue 85) and Mr McHugh (Blue 25). Kevin's evidence was in an affidavit and was untested because of his death before the trial. At its highest the evidence as a whole showed that Mr O'Halloran was aware that he was being asked to take instructions about a new will, one effect of which would be to cut Noel out of the estate. Foster AJ was alive to these matters because he addressed them specifically at pars 74, 78 and 117 of the judgment. The learned judge doubted Mr O'Halloran's evidence that he learnt everything about the deceased's testamentary intentions at his meeting with the deceased. To me this seems perfectly obvious but it by no means leads to the wholesale rejection of Mr O'Halloran's evidence that the appellant invites. Part of the acceptance of Mr O'Halloran was the conclusion that he was an honest witness.
54 In conclusion I remind myself of two matters. The first is the essential inquiry as to the matters referred to in the oft cited passage in Banks v Goodfellow (1870) LR 5 QB 549. The second is the presumption that if a duly executed will is rational on the face of it there is a presumption that the testator had testamentary capacity. That presumption is rebuttable of course. And the legal onus remains with the propounding executor.
55 In my view Foster AJ was correct to grant solemn form with respect to the 1996 will.
56 The appellant's challenge to the costs order fails, in my opinion, at the level of failing to establish any error in the exercise of the judicial discretion on the facts of the particular case. His Honour expressed his reasons in a supplementary judgment (Shorten v Shorten [2001] NSWSC 363). However some of the argument raises a question of some importance, since this Court was invited not to follow or alternatively to overrule some of the reasoning in the decision of Perpetual Trustee v Baker [1999] NSWCA 244 in light of a High Court decision in Middlebrook v Middlebrook (1962) 36 ALJR 216. I propose that in that aspect of this Court's decision in the matter, this Court's reasons in the present matter be reserved.
57 Subject to that I propose that the appeal be dismissed with costs.
58 MEAGHER JA: I agree.
59 SHELLER JA: I agree for the reasons given by the President of the orders that he has proposed.
60 MASON P: The orders of the Court therefore are that the appeal is dismissed with costs and the Court reserves its further reasons on the outstanding costs issue.