SMART -v- POWER [2019] WASCA 106 (2 August 2019)

(2) The judge erred in finding that, when she executed the 2011 Will, the deceased was able to comprehend and appreciate the claims to which she ought to give effect.

(3) The judge erred in finding that, when she executed the 2011 Will, the deceased knew and approved its contents.

1. For the reasons that follow, none of the grounds of appeal has been made out.
2. All of the grounds suffer from the same conceptual difficulty. In an appeal, there is an important distinction between (1) findings of fact based, wholly or partly, on credibility; and (2) the drawing of inferences from undisputed or found facts. The appellants seek to characterise all of their grounds as involving challenges to inferences drawn by the judge. However, on a proper analysis, all of the grounds of appeal involve, or in substance require, challenges to credibilitybased findings of primary fact. Insofar as those findings of primary fact are challenged, the challenge is without merit. In particular, the primary judge's acceptance of (1) the evidence of the solicitor who met with the deceased, and drafted the 2011 Will; and (2) the genuineness of his file notes, creates an insuperable obstacle to each of the grounds of appeal.
3. It is necessary to outline some uncontroversial background matters, before turning to the primary decision, and then to the appellants' grounds of appeal.

1. The deceased was born on 4 July 1920. She died on 23 August 2013 at the age of 93.
2. On 28 October 1939, the deceased married Mr Cyril Okle (Cyril).
3. In 1943, Cyril and the deceased bought a property at 11 Bateman Way in Mt Pleasant. The deceased and Cyril lived at this address together until Cyril died in 1975.
4. In 1986, the deceased subdivided the land at 11 Bateman Way. From this point on she lived at 11B Bateman Way. She remained at this address for the rest of her life, save for when she was living in aged care homes.
5. The deceased and Cyril had two daughters, the appellants, who were the defendants at trial: Ainslie Joy Perkusich (Ainslie) and Susan Faye Smart (Susan).
6. Ainslie has three adult children, namely:

(2) the first respondent, Robyn Louise Power (Robyn); and

(3) the second respondent, Michael John Perkusich (Michael).

1. Stevan, Robyn and Michael all have children: Robyn has two, and Michael has four, children. Stevan has two children, one of whom is called Bethany who was born in 2003.
2. Susan has two adult children: Andrew Smart (Andrew), and Meagan Smart (Meagan). Meagan has one child of her own who was born after the death of the deceased.
3. As is apparent from the above, at the time of her death, the deceased had two children, five grandchildren and eight great grandchildren. Although not mentioned by the judge, the deceased's grandson Stevan also had a stepson, who was the child of Stevan's wife.[3]
4. As can be seen, like the primary judge, we refer to members of the deceased's family by their first name. We do so for convenience, and without intending any disrespect.

1. On 14 February 1998, the deceased made the 1998 Will. By the 1998 Will, the deceased appointed Susan and, in the event that Susan did not survive her, Meagan, as her executor and trustee.
2. Clause 5 of the 1998 Will relevantly provides that, upon the deceased's death and after payment of all her debts, funeral and testamentary expenses, she gives the residue of her estate as follows:

My property known as unit B 11 Bateman Road Mount Pleasant ... to my daughter [Susan]. To my daughter [Susan] the proceeds of the AMP Personal Insurance Policy number W4001906-K.

My furniture, personal effects and money in my Commonwealth Bank Account number 7661025584 to be divided equally between my Daughters [Ainslie] and [Susan].

1. On 28 September 2006, the deceased made an enduring power of attorney by which she appointed Susan and Meagan jointly and severally as her attorneys.
2. On 27 September 2007, the deceased revoked the enduring power of attorney previously given to Susan and Meagan.

Uncontroversial circumstances surrounding the 2011 Will

1. On 26 August 2010, the deceased made an enduring power of attorney by which she appointed Robyn as her attorney. On the same date, Robyn executed a document by which she recorded her acceptance of the appointment.
2. Some relatively short time after 31 March 2011, the deceased told Robyn that she wanted to make a will. The deceased asked Robyn to find someone who could make a will for her.
3. On 7 July 2011, as a result of the deceased's request, Robyn contacted the law firm Haynes Legal. Robyn had never had any prior dealings with Haynes Legal. Robyn arranged for the principal of Haynes Legal, Mr Paul Haynes, to meet with the deceased on 15 July 2011 for the purpose of taking the deceased's instructions for the preparation of her will.
4. On Friday 15 July 2011, Mr Haynes met with the deceased at Anchorage Aged Care (Anchorage) in Mindarie (the 15 July 2011 meeting). Anchorage was the high level aged care facility in which the deceased was living at the time. At the time, the deceased was 91 years old, very frail, virtually blind and had a very significant hearing impairment. During the meeting, Mr Haynes took instructions from the deceased for the preparation of a will for her. The instructions that the deceased ultimately provided to Mr Haynes were that she wanted her grandchildren, Robyn and Michael, to be her executors and for her estate to be held on trust for her great grandchildren in equal shares until they reached the age of 21. The judge's findings as to what occurred at the 15 July 2011 meeting were of central significance to his conclusions of testamentary capacity and knowledge and approval of the contents of the 2011 Will. For reasons to be explained, they are also of central significance to the resolution of this appeal.
5. At the end of the 15 July 2011 meeting, Mr Haynes obtained from the nurse at Anchorage the details of the deceased's doctor. He ascertained that the deceased's general practitioner was Dr Rudolf Bohmer of Brighton Beach Medical Practice in Merriwa.
6. On 16 July 2011, Mr Haynes sent a letter to Dr Bohmer requesting confirmation from Dr Bohmer that, in his opinion, the deceased had the necessary testamentary capacity to make her will.
7. On 6 September 2011, Dr Bohmer met with the deceased to undertake an assessment of her testamentary capacity (the 6 September 2011 assessment). Having done so, Dr Bohmer concluded that the deceased did have the necessary testamentary capacity to make a will. Consequently, on 6 September 2011, he sent a letter to Mr Haynes in the following terms:

Thank you for your letter dated, 16/07/2011, requesting a report for the above named patient. My apologies for the delay in the report.

I visited [the deceased] on the 6th of September to determine if she is capable of making a will. I had a long discussion with [the deceased] in the presence of Eva, one of the nursing staff.

[The deceased's] assets included the sale of her house in Mt Pleasant, the contents of that home and funds that she has in her bank account. She has 2 daughters, Susan Smart and Ainslie Perkusich. Her granddaughter Robyn is her power of attorney. Her wish is to leave all her assets to her great granddaughter Bethany Perkusich.

My opinion is that she appreciates the effects of Will making and the consequences thereof. She seems to have a clear understanding of the extent of her assets. She also have [sic] an understanding of potential claims that may be made against the estate. I am of the opinion that she is of sound mind.

1. Having received this letter, Mr Haynes made an appointment to see the deceased at Anchorage on 22 September 2011 for the purpose of having her sign the will that he had prepared for her.
2. On 22 September 2011, Mr Haynes met with the deceased at Anchorage (the 22 September 2011 meeting). He read, to the deceased, the will that he had prepared for her. During this process, he made one handwritten amendment to it at the request of the deceased. That amendment was to clarify a reference to the deceased's great grandchildren as the biological children of her grandchildren. Like the 15 July 2011 meeting, the judge's findings as to what occurred at the 22 September 2011 meeting were of central significance to his conclusions of testamentary capacity and knowledge and approval of the contents of the 2011 Will, and, for reasons to be explained, are of central significance to the resolution of this appeal.
3. After he had read the will, Mr Haynes told the deceased that he would find a witness. However, he was unable to find anyone to be a second witness. He then returned to the deceased and said, in substance, that he could not find a witness, that he or somebody from his office would have to come back, and that he would get the deceased to sign the will now as he was there. He then had the deceased sign the will and the amendment and he signed the document as a witness.
4. During the meeting, Mr Haynes told the deceased that he had received a report from Dr Bohmer in which Dr Bohmer confirmed her capacity to make a will. The deceased responded by saying, 'I knew I hadn't lost my marbles'.
5. When Mr Haynes returned to his office he prepared a further typed version of the will which incorporated the handwritten amendment that he had made to the will that the deceased had signed earlier that day (that is, which incorporated the words 'who are the biological children of my grandchildren').
6. The next day, 23 September 2011, Mr Haynes arranged for his wife, Ms Alyson Haynes (Alyson), and his daughter, Ms Natasha Haynes (Natasha), both of whom worked as assistants in his firm, to attend on the deceased and to have her sign the amended will, that is, the 2011 Will, in their presence. They did so, each witnessing the execution of the 2011 Will.
7. Once the 2011 Will had been signed by the deceased, Mr Haynes destroyed the will that had been signed by the deceased in his presence on 22 September 2011.

1. Clause 1 of the 2011 Will is in the following terms:

I REVOKE all former Wills and Codicils made by me AND DECLARE this to be my last Will and Testament

1. By cl 2 of the 2011 Will, the deceased appoints Robyn and Michael to be the executors and trustees (referred to thereafter in the document as 'my Executor') of her estate.
2. Clause 3 of the 2011 Will provides:

I GIVE all of my real and personal estate, wherever situated (my estate) to my Executor UPON THE FOLLOWING TRUSTS:

(a) to pay from my estate all my just debts, funeral and testamentary expenses, probate, unpaid taxes and other like duties and taxes payable on or in respect of my estate and the costs involved in the execution of the trusts of my will; and

(b) to HOLD the balance then remaining (the residue of my estate) on trust for such of my great grandchildren who are the biological children of my grandchildren who survive me and attain the age of 21 years and if more than one as tenants in common in equal shares. (original emphasis)

1. Clause 4 of the 2011 Will specifies the powers that Robyn and Michael have as executors and trustees in addition to powers conferred by law. One of the powers, which is specified in cl 4(e),[4] is as follows:

[T]o apply the whole or any part of the income and capital of the vested or contingent share of any beneficiary toward the maintenance, education, medical needs, evolving needs, welfare, advancement, benefit or support of such beneficiary[.]

1. Clause 5 of the 2011 Will, which is headed 'Declaration', is in the following terms:

I have considered my daughters AINSLIE JOY PERKUSICH and SUSAN FAYE SMART. Both daughters have been adequately provided for by me during my lifetime and I feel sure they will both agree to my estate being held in trust as directed for the benefit of their own grandchildren.

1. The primary judge outlined the evidence of each witness in considerable detail.[5] It is not necessary to summarise all of what his Honour said in this respect. We will refer to only a few aspects of the judge's outline of the evidence and to the judge's general observations on the various witnesses.

1. Robyn gave evidence that the deceased asked her to arrange someone to prepare a will for the deceased. As a result, after an internet search, Robyn contacted Haynes Legal. She had had no previous contact with Mr Haynes or with his firm. She then arranged a meeting with the deceased and Mr Haynes (that is, the 15 July 2011 meeting).[6]
2. She said that the thrust of the meeting was as follows:[7]
   1. The deceased said to her that she wanted to leave everything to her. She said that she did not want it. The deceased said that she trusted her to decide 'who gets it'. She said that she did not want that responsibility. The deceased then said that she would leave 'it' to Bethany. She said that she did not think that was fair on the other kids 'but that if that is what you want to do'. By using the word 'kids' she meant the deceased's great grandchildren;
   2. Mr Haynes said to the deceased that it would not be unusual for her (Robyn) to get something because she had been responsible for the deceased. She said, 'No, then they'll be saying you're ok', meaning that she had looked after herself;
   3. The deceased paused and looked like she was thinking. The deceased then said, 'Alright, I'll leave it to all great grandchildren; my blood related great grandchildren';
   4. At some point Mr Haynes suggested that the great grandchildren share on the basis of an equal distribution to the grandchildren. Mr Haynes gave as an example that if the estate was worth 'say $300,000 [t]his would mean that my two children would receive $150,000 and that Mick's four children would each receive $75,000'. The deceased rejected this idea. The deceased wanted each great grandchild to take an equal amount;
   5. At one point Mr Haynes asked what age the great grandchildren would get funds. The deceased said '21'. She [Robyn] said, '25 would be a good age'. The deceased disagreed and said, '21, that is the age';
   6. Mr Haynes then asked the deceased about her assets. The deceased said she had money from the sale of her house;
   7. At some point Mr Haynes said, 'Why are you not leaving anything to your children? The deceased responded that she had given her children her property in Dunsborough in equal shares. The deceased said that Susan had given her share to Meagan and that Ainslie had sold her share to Meagan for only $50,000 when the property was worth over $300,000. The deceased said that she had already given her children enough. The deceased said that she wanted the great grandchildren to use the money as a deposit on a house. She recalls Mr Haynes saying that it could not be stipulated in the will what the great grandchildren could use the money for; and
   8. At this point she left the meeting. She does not recall whether or not Mr Haynes asked her to leave.
3. After the meeting, Robyn did not discuss the will or its contents with either Mr Haynes or the deceased.[8]
4. In November 2011, she received a letter from Mr Haynes dated 9 November 2011 attaching the 2011 Will, a copy of a letter from Dr Bohmer and an invoice.[9]
5. Subject to reservations concerning Robyn's evidence as to why she did not inform Susan and Ainslie about the details of the 2011 Will earlier, the judge found that Robyn was an honest and reliable witness.[10] To the extent that there were discrepancies between Robyn's evidence and aspects of other witnesses' evidence, the judge did not resolve them on the basis of honesty.[11]
6. The judge rejected the appellants' contention that, on important issues of fact, Robyn was not a credible witness.[12] He rejected the appellants' contention that Robyn deliberately played down, in her written statements, the deteriorating physical and mental condition of the deceased after 2006.[13] The judge also rejected the appellants' other criticisms of Robyn's evidence, which it is not necessary to detail.[14]
7. The primary judge recorded that, in cross-examination, Robyn said that she did not recall telling Mr Haynes during the 15 July 2011 meeting what the deceased's assets were but it could have been either her or the deceased. She did not know.[15]

1. The judge explained that Mr Haynes gave much of his evidence of the two meetings by reference to his notes: in the case of the 15 July 2011 meeting, by reference to his handwritten notes and typed attendance note; in the case of the 22 September 2011 meeting, by reference to his typed attendance note.[16] Mr Haynes' evidence was that he dictated his attendance notes either on the day of the meeting or the following day.[17]
2. The judge outlined Mr Haynes' evidence of the background to the 15 July 2011 meeting and then his evidence as to that meeting, including the following. After being taken to the deceased's room, he took instructions from the deceased alone, in the absence of Robyn.[18] During the meeting, the deceased told him, among other things, the following:[19]
   1. Over the years, she had helped both her daughters and all of her grandchildren.
   2. She had given her half acre block of land in Dunsborough to her daughters Ainslie and Susan, that Susan had transferred her half of the block to Meagan and that Ainslie had sold her half of the block to Meagan.
   3. Meagan is one of the children of Susan.
   4. The grandchildren are Stevan, Robyn, Michael, Andrew and Meagan.
   5. She does not know where Stevan is. She let Stevan look after her money at one point and bought him a car. He used her money to pay debts and to get himself out of bankruptcy.
   6. Robyn is the daughter of Ainslie and the one who in the main comes to see her and looks after her. She gave Robyn $5,000 20 years ago for a deposit on a house and $3,000 for a carport.
   7. Michael is the third child of Ainslie. He is a 'nice man'. She does not see him much. He lives in Dongara and she gave him money for a car.
   8. She cannot remember giving Andrew money but she did buy him a ride-on lawnmower. Andrew has gone 'off the rails'. She does not know where Andrew is.
   9. Meagan, Ainslie and Susan do come to see her sometimes. Robyn comes and sees her more.
   10. She knows that she has about $450,000 or probably more in the bank and that she has bond money from where she is living which is about $290,000 but this will reduce.
   11. She wanted to leave her entire estate to Robyn and Robyn could then do what she liked with the money.
3. The judge outlined Mr Haynes' account of the meeting, and the various points at which Robyn returned to the room and joined the meeting, as follows:[20]

He made clear to the deceased that in his opinion if she gave all her money to Robyn she was in all probability going to cause discontent in the family, and with an estate of over $700,000 her daughters may very well be put out by this and may look at pursuing a claim under the 'Inheritance Act'. He said to the deceased that he was not saying that her daughters would be able to succeed in any such claim, but they would have the right to consider making such a claim.

At this point during his meeting with the deceased Robyn came and spoke with him and the deceased. The deceased told Robyn that she wanted her whole estate to go to Robyn. Robyn made absolutely clear that she did not wish to have the whole estate. Robyn said that it would not be fair on all the others and she was also equally concerned that she should not have the responsibility of deciding how to distribute the estate.

After Robyn had expressed her views on the matter the deceased stated that she felt that her daughters and her grandchildren had all benefited from her one way or another, and that she therefore wanted to secure her estate to help her great grandchildren.

He then spoke to the deceased again alone. He told her that her daughters would not necessarily be happy about her leaving her estate to her great grandchildren. He advised the deceased that her grandchildren have no right to be unhappy and they only have rights to pursue any claim should their parents predecease her. The deceased stated that her daughters would not, or should not, be unhappy with her securing money for their own grandchildren and therefore they would no doubt be quite happy with what she was proposing to do.

The deceased made it absolutely clear to him that she wanted Robyn and Michael to be the executors of her will, and that she wanted all of the estate to be left in trust for her great grandchildren until the age of 21.

He then discussed with the deceased whether she wanted the estate split into fifths so that the great grandchildren would share equally the onefifth that their parent as a grandchild might have had. The deceased stated that she just wanted all of the grandchildren to have exactly the same and the estate was therefore to be divided equally between all of the eight great grandchildren. The deceased instructed him to make clear in the will that the great grandchildren were to be the biological children of her own grandchildren.

The deceased instructed him to incorporate in the will a declaration of her reason for not leaving the estate to her daughters, namely that her daughters had always been looked after and that she is sure that they will agree to the estate being divided between their own grandchildren.

At this point Robyn re-joined him and the deceased. He advised Robyn what the deceased wanted to do. Robyn stated that she was happy to be the executor of the deceased's will.

He discussed the possibility of instructing a trust company because it was going to be quite a responsibility for Robyn and Michael to be the executors. However, Robyn indicated that she and her brother could look at this once they had commenced the administration of the deceased's estate. The deceased was happy with this and indicated that she would rather have Robyn and Michael as executors than a trust company being formally instructed. The deceased said that she understood that it would be wise for Robyn and Michael to instruct a trust company such as Perpetual Trustees to manage the trust as it is clearly quite a responsibility to hold all the money for several years for the children until they are 21.

1. The judge also detailed Mr Haynes' evidence concerning the 22 September 2011 meeting.[21]
2. After outlining, in considerable detail, Mr Haynes' evidence in the course of cross-examination,[22] the judge made a number of general observations concerning Mr Haynes' evidence. His Honour concluded that Mr Haynes was an honest witness and, in almost all respects, a reliable witness.[23]
3. The judge identified two material points of difference between Mr Haynes' evidence and Robyn's evidence. The first related to Robyn's movements in and out of the deceased's room during the 15 July 2011 meeting. The second related to whether, in the course of the 15 July 2011 meeting, the deceased made a statement to the effect that she wanted to leave her estate to her great granddaughter Bethany. As to the first of these points, the judge preferred the evidence of Mr Haynes supported, as it was, by his detailed typed attendance note.[24] As to the second point, the judge preferred the evidence of Robyn whose evidence in this respect was clear and definite, in contrast to Mr Haynes' less certain evidence.[25]
4. The appellants' written closing trial submissions involved a full scale attack on the honesty of Mr Haynes' evidence and the genuineness of his handwritten notes and typed attendance note. Among other things, the appellants suggested that Mr Haynes had deliberately doctored his notes, and tailored his evidence, in various respects. The judge entirely rejected the appellants' attack on Mr Haynes' evidence. Among the submissions of the appellants rejected by the judge were the following:

(1) After the meeting with the deceased on 15 July 2011, Mr Haynes became concerned that he had allowed Robyn in the room at all and, therefore, dictated his attendance note to record Robyn's movements in a way that meant that he could say that 'the deceased gave him important instructions when [Robyn] was not there'.[26]

(2) It should be concluded from Mr Haynes' evidence that 'it did not really matter what the [deceased] wanted. What mattered to [Mr Haynes] was what [Robyn] wanted'.[27]

(3) When Mr Haynes saw the deceased in July 2011, he took instructions from Robyn and not from the deceased.[28]

(4) Mr Haynes was never interested in the deceased's wishes when he saw her in July.[29]

(5) Mr Haynes had grave reservations about the deceased's testamentary capacity but 'to pull the plug on the work he had done in the matter would have been far too inconvenient at that late stage'.[30]

(6) Mr Haynes' attendance note was 'a crude attempt to give the [deceased] testamentary capacity that she did not have'.[31]

(7) Mr Haynes' demeanour in the witness box was a façade to hide his realisation that he had not fulfilled his professional obligations to the deceased properly by excluding Robyn from the meeting and by failing to 'drill down' on the deceased's capacity to comply with the relevant tests for capacity.[32]

1. In circumstances where Mr Haynes had not previously met Robyn, and where none of those allegations were put to Mr Haynes, it is far from clear how any reasonable basis could have existed for making those serious allegations, which involved a full scale attack on the integrity of Mr Haynes' evidence and notes. As we will explain, the failure of this attack on Mr Haynes' evidence and notes is of central significance for the disposition of this appeal.

1. The judge accepted Susan's evidence and accepted that she was an honest and generally reliable witness.[33] In particular, the judge accepted Susan's evidence as to the specifics of the behaviour that the deceased exhibited towards her and others from around 2006 onwards.[34] This included her evidence that the deceased did, in the later years of her life, particularly from around 2008 onwards, on occasion, exhibit the unusual and sometimes aggressive behaviour to which Susan referred, as well as problems with her memory and levels of alertness.[35]

1. The judge accepted Meagan to be an honest and generally reliable witness. The judge accepted Meagan's evidence as to the specifics of the behaviour that the deceased exhibited towards her and others from around 2006 onwards. In particular, the judge accepted her evidence that the deceased did, in the later years of her life, particularly from around 2008 onwards, on occasion, exhibit unusual behaviour, mood fluctuations, anger, some aggression, forgetfulness and confusion.[36] The judge found that the deceased's expressed and apparently held beliefs that Meagan or Susan had stolen money or other property from her were unfounded.[37]

1. The judge noted that both the appellants' and respondents' expert witnesses, Dr Lee and Dr De Felice, agreed on the following matters:[38]
   1. By 2007 the deceased was suffering from a mild cognitive impairment (that is, reduced short term memory and reduced long term memory);
   2. It is likely that by 2010 the deceased was suffering from dementia (that is, an impairment affecting not just memory but the capacity to reason and make judgments);
   3. It is probable that at the time of making the 2011 Will the deceased understood the nature and effect of making a will; and
   4. At the time of making the 2011 Will the deceased knew the extent of her estate.

Did the deceased lack testamentary capacity at the time of making the 2011 Will?

1. The judge set out relevant legal principles in a manner that is not challenged on appeal.[39] The principles stated by the primary judge include the following:[40]

(1) In order for a person to have testamentary capacity, they:

(a) must understand the nature of the testamentary act and its effects;

(b) must understand the extent of the property of which they are disposing; and

(c) must comprehend and appreciate the claims to which effect ought be given.[41]

(2) The question is whether the testator had the capacity of sound judgement, rather than whether they in fact made the judgement about the disposition of their estate soundly and for reasons for which might appear to the observer to be good.[42]

(3) The question is an inquiry into the testator's capacity at the time they made the will.[43]

(4) That question is a legal, not medical, question to be decided by the court, not by experts.[44]

(5) The critical question is whether the testator understood the nature of the claims of those she was including in, and excluding from, the will, not whether the testator met the current criteria which a psychiatrist may employ to diagnose a mental disorder.[45]

(6) The party propounding the will bears the onus of satisfying the court that the deceased had testamentary capacity.[46]

1. The judge found that, in circumstances where the deceased was 91 years old, almost totally blind, had a very significant hearing impediment and a cognitive impairment, a suspicion was raised that the deceased did not have testamentary capacity, so that the respondents bore the onus of proving that the deceased had testamentary capacity.[47]
2. It was not in dispute that, from 2007, the deceased suffered from a mild cognitive impairment and, from 2010, the deceased had dementia.[48]
3. The judge turned to consider the three questions identified in [60](1)(a) (c) above, informing whether the deceased had testamentary capacity.
4. First, the judge found, as was not and is not in dispute, that the deceased understood the nature of the act of making the 2011 Will and its effects.[49]
5. As to the second question, whether the deceased understood the extent of the property of which she was disposing, the judge made the following observations and findings, which are challenged by ground 1 of the appeal:[50]

Again, it is not in dispute between the parties that the deceased had this understanding. In any event, such a conclusion is supported by the evidence given by Mr Haynes as to the deceased's description of her property, Dr Bohmer's evidence of the deceased's description of her property, and the expert opinion evidence given by each of Dr Lee and Dr De Felice. On the basis of this evidence, and in light of the absence of any dispute on the issue between the parties, I am satisfied that the deceased did understand the extent of the property that she was disposing of at the time that she executed the 2011 Will.

1. The judge turned to the third question, which his Honour described as 'in hot dispute between the parties'.[51] The question was whether the deceased was, at the time of executing the 2011 Will and despite the fact that she had dementia, able to comprehend and appreciate the claims to which she ought give effect, or which naturally ought to press upon her, in disposing of her property by the 2011 Will.[52]
2. The judge rejected the respondents' submission that such claims were limited to those of her daughters Susan and Ainslie.[53] The judge observed that the determination of the claims to which a person making a will ought to give effect, depends on the circumstances of the particular case.[54] The judge observed that, given that the deceased was deciding to leave her estate to her great grandchildren, the claims which naturally ought to have pressed upon her were not limited to the claims of her daughters, but extended to the claims of her grandchildren.[55] The respondents challenge the judge's approach in this respect, by ground 3 of their notice of contention.
3. The judge then turned to consider the numerous facts and circumstances, independent of the circumstances surrounding the making of the 2011 Will, upon which the appellants relied in respect of the third question.[56]
4. The judge did not accept the contended circumstance that the 2011 Will was irrational having regard to its exclusion of two generations of descendants of the deceased, to the dispositions made in the 1998 Will, and to the deceased's previously expressed testamentary intentions.[57] Otherwise, the judge found that the balance, broadly speaking, of the matters upon which the appellants relied bore upon the question of the deceased's capacity at the time she made the 2011 Will. These included the following facts:

(1) The deceased was 91 years of age, frail, in poor health and almost totally blind and deaf.[58]

(2) From 2008 onwards, the deceased, on occasion, exhibited confusion and worsening problems with her memory, and unusual or aggressive behaviour.[59]

(3) The deceased had intense and unfounded beliefs, from time to time, in or around 2008, that Susan and Meagan had been stealing from her, were not truly concerned about her safety, and were, rather, concerned about how she was dealing with her money and how she would distribute her assets when she died.[60]

(4) The deceased had a cognitive impairment from 2008, and dementia from 2010, and thereafter.[61]

(5) On 15 April 2011, during an occupational therapy assessment, the deceased demonstrated some confusion in relation to the number of her grandchildren and great grandchildren.[62]

1. The judge summarised the position as to the matters on which the appellants relied in the following way:[63]

So that deals with the facts unrelated to the actual making of the 2011 Will which the defendants assert justify the conclusion that the deceased lacked the ability to comprehend and appreciate the claims to which she ought to give effect at the time of making the 2011 Will. Further, and as is apparent from what I have said, I accept that a number of the above identified facts do bear upon the question whether the deceased lacked the ability to comprehend and appreciate the claims to which she ought to give effect at the time of making the 2011 Will. Therefore the question becomes whether by reason of these facts, considered in combination with each other, I should fail to be satisfied that the deceased, at the time of executing the 2011 Will, was able to comprehend and appreciate the claims to which she ought give effect, that is, the claims of her daughters and grandchildren.

1. The judge then turned to the evidence as to the circumstances surrounding the making of the 2011 Will. Without repeating his earlier summary of Mr Haynes' evidence, the judge found that Mr Haynes' evidence established that during the 15 July 2011 meeting, the deceased, did, among other things, the following:[64]
   1. Identified her two children and her five grandchildren;
   2. Expressed the view that she had helped both of her daughters and explained why she was of this view;
   3. Expressed the view that she had helped her grandchildren and, with the possible exception of Meagan, explained why she was of this view (although she did point out that Susan had transferred her half share in the Dunsborough block to Meagan and that Ainslie had sold her half share in the block to Meagan);
   4. Stated that she felt that her daughters and grandchildren had all benefited from her one way or the other and that she therefore wanted to secure her estate to help her great grandchildren;
   5. Expressly stipulated that only her biological great grandchildren were to benefit from her estate (thus revealing that she had in contemplation that some of her grandchildren had blended families);
   6. Stated to Mr Haynes that she wanted all of the great grandchildren to have exactly the same and that the estate was to be divided equally between all eight great grandchildren; and
   7. Instructed Mr Haynes to incorporate into the will a declaration of her reason for not leaving the estate to her daughters.
2. The judge also observed that '[i]n addition[,] Mr Haynes ... formed the view that the deceased, although elderly, was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him'.[65]
3. The judge then made the following critical findings concerning the deceased's capacity to comprehend the claims to which she should give effect:[66]

In my opinion the above referred to statements made by the deceased to Mr Haynes during the meeting on 15 July 2011 clearly demonstrated that as at that date she had the capacity to, and in fact did, consider the nature of the claims of those whom she was excluding from her will, namely her daughters and her grandchildren. In my view this is the only inference that can reasonably be drawn from the fact that she expressly referred to each of her children and grandchildren and explained why she was bypassing them in her will.

1. As we will explain, in our respectful opinion, this conclusion, and the reasoning underpinning it, cannot be faulted.
2. The judge said that, in arriving at this conclusion, he preferred the opinion of Dr Lee to that of Dr De Felice.[67] The judge accepted Dr Lee's opinion that the deceased's instructions demonstrated a sophisticated understanding of her family structure and a cognitive capacity that would have allowed her to consider the implications of her wishes.[68]
3. The judge did not accept Dr De Felice's opinion that the deceased's several changes of mind regarding to whom she was going to leave her estate, during the 15 July 2011 meeting, demonstrated or indicated an absence of testamentary capacity.[69] To the contrary, the judge found that the fact that the deceased was apparently able to take on board statements made by Robyn, and adapt her instructions to take account of those statements in light of advice given to her by Mr Haynes, was a further demonstration that she had the necessary cognitive capacity to comprehend and appreciate the claims to which she ought give effect.[70]
4. The judge observed that the ultimate question was as to the deceased's capacity as at 23 September 2011, not as at 15 July 2011.[71] In that context, the judge turned to the evidence of Dr Bohmer. The judge concluded that it appeared, from Dr Bohmer's evidence, that the deceased was unable to recall, during the 6 September 2011 assessment, all of her grandchildren and great grandchildren. The judge observed that it followed from this evidence that, at least on the date of that assessment, the deceased would not have been in a position to comprehend and appreciate the claims to which she ought give effect, namely the claims of all of her grandchildren and great grandchildren.[72]
5. The judge observed that, if that were the end of the matter, there may have been good grounds for doubt about the ability of the deceased to comprehend and appreciate the claims to which she ought give effect.[73] However, the judge then turned to the evidence of Mr Haynes as to the 22 September 2011 meeting.
6. The judge referred to his earlier outline of Mr Haynes' evidence. Relevantly, Mr Haynes' evidence was that, at the 22 September 2011 meeting, he read the draft will slowly to the deceased in stages. In particular, he read cl 3(b) of the will and explained that this meant that everything that the deceased owned after payment of her debt would go to her great grandchildren in equal shares. He said that, at this point, the deceased corrected him by telling him that her instructions had been that the estate was to be left to her biological great grandchildren.[74] The judge considered that interchange to be of significance, because the deceased's statement that the estate was to be left to her biological great grandchildren revealed an understanding of the clause and that she knew that she was excluding, from the will, her grandchildren.[75] Further, the judge considered that, when Mr Haynes read the rest of the draft will, including its declaration of which the deceased indicated an understanding, the deceased evidently understood and had in mind that her two daughters were being excluded under the will.[76]
7. The judge summarised the position in the following manner:[77]

In summary, when I take into account what the deceased said and what occurred at the meeting with Mr Haynes on 15 July 2011, what the deceased said and what occurred at the meeting between Mr Haynes and the deceased on 22 September 2011, Mr Haynes' assessment of the competence of the deceased at both of his meetings with her, what occurred during Alyson's and Natasha's attendance on the deceased on the day of the execution of the 2011 Will and the expert opinion evidence of Dr Lee, I am satisfied on the balance of probabilities that the deceased, when she executed the 2011 Will on 23 September 2011, had the capacity to, and did in fact, comprehend and appreciate the claims to which she ought to give effect at the time that she made the 2011 Will, specifically the claims of her children and grandchildren. I am satisfied of this fact despite the facts that I have identified above as bearing upon the determination of the deceased's testamentary capacity including her age and poor state of physical health, her behavioural changes and cognitive decline (confusion and worsening memory ultimately developing into dementia), her unfounded beliefs concerning members of her family specifically Susan and Meagan, her demonstrated confusion in April 2011 in relation to the number of her grandchildren and great grandchildren, and her statement to Dr Bohmer during the assessment on 6 September 2011 that she wanted to leave her estate to Bethany.

The finding made in this passage is challenged by ground 2.

Did the deceased know and approve the contents of the 2011 Will?

Knowledge and approval: applicable legal principles

1. The judge set out the relevant legal principles in a manner not challenged by the appellants on appeal. His Honour's statement of principles included the following:[78]

(1) In addition to proving that the deceased had testamentary capacity, the propounder of a will must also prove that the deceased knew and approved of its contents. These requirements are conceptually distinct and must not be conflated.

(2) If the propounder of a will proves that a will is regular on its face and is duly executed, a presumption arises that the testator knew and approved of the contents of the will. The presumption can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. In that case, the burden shifts on to the propounder of the will to prove that the testator knew and approved its contents. If the court is not satisfied that the will does contain the real intention of the testator, the court is bound to pronounce its decision that the will is not entitled to probate.

(3) Factors relevant, in considering whether there are circumstances giving rise to a suspicion that the testator might not have known and approved the contents of the will, include (1) the circumstances surrounding the preparation of the will, (2) whether a beneficiary was too involved in the preparation of the will, (3) the extent of any physical and mental impairment on the part of the deceased, (4) whether the will in question constitutes a significant change from a prior will, (5) whether the lawyer or person who prepared the will takes a benefit, and (6) whether the propounded will generally seems to make testamentary sense.

(4) A circumstance that may give rise to a suspicion that the testator may not have known and approved of the contents of a will include the situation where a will itself has not been produced for a significant period.

1. The judge recorded that the respondents accepted that they bear the onus of proving that the deceased knew and approved the contents of the 2011 Will.[79] That statement of the position is challenged by the respondents' notice of contention, ground 1.
2. The judge then turned to the facts and circumstances on which the appellants relied in asserting that the deceased did not know and approve the contents of the 2011 Will. In this regard, the appellants contended that a consideration of various facts and circumstances 'excite[d] suspicion that the terms of the 2011 Will may not have been fully known to the deceased or understood by her'.[80] In response to several of those alleged facts and circumstances, the judge referred to the evidence of Mr Haynes as to what occurred at the meeting on 22 September 2011, describing that evidence as of particular significance.[81]
3. The judge found that, when Mr Haynes attended on the deceased for the 22 September 2011 meeting, he read the document that became the 2011 Will to the deceased in stages and the deceased indicated her understanding of the clauses of the document.[82] In those circumstances, given the earlier finding that the deceased had testamentary capacity, the judge observed that there was no basis for concluding, from what the deceased said to Dr Bohmer at the 6 September 2011 assessment, that the deceased did not know of and approve the contents of the 2011 Will at the time that she signed it.[83]
4. The appellants pointed to Robyn's failure to disclose the details of the 2011 Will to Susan, Ainslie or Meagan for over 2 years after the deceased's death.[84] The judge did not accept Robyn's evidence on that discrete issue as persuasive.[85] Rather, his Honour concluded that one of the motivating factors for Robyn's conduct, not referred to in her evidence, was that she believed that Susan, Ainslie and Meagan would be upset about being overlooked by the deceased in the 2011 Will.[86] However, the judge found that this conclusion did not support a finding that the deceased did not know and approve the contents of the 2011 Will.[87]
5. The judge also dealt with the appellants' submission that a Jones v Dunkel[88] inference should be drawn from the fact that Michael was not called to give evidence.[89]
6. The judge concluded that he was satisfied that the deceased knew and approved the contents of the 2011 Will at the time of executing it.[90] This conclusion is challenged by ground 4 of the appeal.

1. The appellants advance four grounds of appeal which are, in substance, as follows:

(1) The judge erred in fact in finding that, when she executed the 2011 Will, the deceased understood the extent of the property of which she was disposing, in that:

(a) the finding is against the evidence and the weight of the evidence and is unreasonable and cannot be supported having regard to the evidence; and, or alternatively

(b) to the extent such finding was based on the judge's evaluation of the inferences drawn from undisputed facts or facts that were found, that finding was not open to be made on the evidence before the court; and, or alternatively

(c) the judge failed to draw inferences that should have been drawn from the facts established by the evidence.

(2) The judge erred in fact in finding that, when she executed the 2011 Will, the deceased was able to comprehend and appreciate the claims to which she ought to give effect, in that:

(a) the finding is against the evidence and the weight of the evidence and is unreasonable and cannot be supported having regard to the evidence; and, or alternatively

(b) to the extent such finding was based on the judge's evaluation of the inferences drawn from undisputed facts or facts that were found, that finding was not open to be made on the evidence before the court; and, or alternatively

(c) the judge failed to draw inferences that should have been drawn from the facts established by the evidence.

(3) By reason of the errors the subject of grounds 1 and 2, the judge erred in fact in finding that, when she executed the 2011 Will, the deceased had testamentary capacity.

(4) The judge erred in law, or alternatively in fact, in finding that, when she executed the 2011 Will, the deceased knew and approved the contents of the 2011 Will, in that the judge:

(a) conflated the issue of knowledge and approval with the issue of testamentary capacity; and

(b) failed to consider the cumulative effect of the circumstances surrounding the preparation and execution of the 2011 Will, together with all the suspicious circumstances relied on by the appellants.

1. The respondents rely on three additional grounds for upholding the judge's decision. However, as explained below, because none of the grounds of appeal is made out, it is not necessary to determine the merits of the notice of contention.
2. We begin with ground 1 of the grounds of appeal.

Ground 1: the finding that the deceased was capable of understanding the property of which she was disposing Appellants' submissions

1. The appellants' submissions in support of ground 1 may be summarised as follows:

(1) The judge erred in finding that there was no dispute between the parties as to whether the deceased understood the extent of the property of which she was disposing.[91] It should have been evident to the judge, from the cross-examination on behalf of the appellants at trial, that the issue was 'hotly contested' by the appellants.[92]

(2) The judge erred in finding that the deceased understood the extent of the property of which she was disposing.[93] In this respect, the appellant challenges the inferences drawn by the primary judge,[94] submitting that 'none of the facts are really in dispute'.[95]

(3) Central to the judge's reasoning was his acceptance of Mr Haynes' view that, at the 15 July 2011 meeting, the deceased was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him.[96]

(4) The judge failed to take proper account of other evidence or facts and circumstances in deciding what inference to draw.[97] Examples of this include:

(a) the conflict between the evidence of Mr Haynes and Robyn as to the 15 July 2011 meeting on the issue of when Robyn was in the room with Mr Haynes and when she was not;[98]

(b) Robyn's concession in crossexamination that it may have been her who gave Mr Haynes instructions as to the deceased's assets in that meeting;[99] and

(c) what occurred at the 6 September 2011 assessment with Dr Bohmer.[100]

(5) The proper inference to be drawn was that, at the 15 July 2011 meeting, Robyn was in the room when the deceased's assets were discussed, and that it was she, not the deceased, who provided information to Mr Haynes as to the deceased's assets.[101]

(6) This inference - that it was Robyn who told Mr Haynes of the deceased's assets - is supported by consideration of the contents of Mr Haynes' handwritten notes of the meeting. The first page of those notes records the assets as 'No real estate, No assets ...'; the second page contains a detailed outline of the deceased's assets, recorded at a time by which it is likely that Robyn was in the room.[102]

(7) Moreover, given the deceased's disabilities, advanced age and dementia, it is unlikely that the deceased would have been able to give the precise quantification of her asset position recorded in Mr Haynes' notes.[103]

1. For the reasons that follow, in our opinion, ground 1 is entirely without merit and lacked any proper arguable basis.

1. The judge's observation, that there was no dispute between the parties concerning whether the deceased understood the extent of the property she was disposing of, was correct, taking account of the following matters.
2. First, Mr Haynes' handwritten notes of the meeting of 15 July 2011 contained a passage as follows:[104]

I have only got money in the bank about [$]450,000 it could be more and I have the bond money where I now live. It is about $290,000 but that could get reduced. (emphasis added)

The use of the first person in this passage unambiguously reveals its character as a record of something said by the deceased to Mr Haynes. The substance of this note was recorded in Mr Haynes' typed attendance note, in which it was said that '[the deceased] knows that she has about $450,000 or probably more in the bank and she has bond money from where she is living which is about $290,000 but this will reduce.'[105] At the outset of the trial, the appellants' counsel accepted that Mr Haynes' handwritten notes were a genuine record of what was said.[106]

1. Secondly, Mr Haynes' evidence-in-chief was that his file notes of 15 July 2011 were 'a faithful and true record' of his meeting with the deceased.[107] In cross-examination, Mr Haynes was asked whether Robyn was in the room during the discussion about the $450,000 in the bank and the bond of $290,000. Mr Haynes responded, 'Not to my recollection, no'.[108] The appellants' counsel did not then, or at any stage during crossexamination, put to Mr Haynes that it was not the deceased, but rather Robyn, who gave him the information as to the property that was recorded in his notes. Moreover, no suggestion was made in cross-examination of Mr Haynes that, in recording this information using the first person, his handwritten note was materially inaccurate, in that Robyn, rather than the deceased, was the speaker. More generally, the accuracy of Mr Haynes' file notes was not challenged in crossexamination, much less was any suggestion made that he had deliberately falsified any aspect of his notes.
2. Thirdly, the appellants' expert, Dr De Felice, like Dr Lee, expressed the view that at the time of making the 2011 Will, the deceased knew the extent of her estate.[109]
3. Fourthly, nothing in the appellants' closing submissions at trial suggested, much less squarely stated, that the appellants contested whether the deceased understood the property of which she was disposing. Closing submissions at trial were made in writing. The appellants' submissions were, relevantly, directed to the question of testamentary capacity, without expressly identifying the element of testamentary capacity to which they were addressed.[110] However, on any fair reading of the submissions, their substance focused on the question of whether the deceased understood the claims upon her bounty in making the 2011 Will.
4. For these reasons, the judge was right to find there was no dispute between the parties concerning whether the deceased understood the extent of her property. In any event, the judge went on to state his reasons for concluding that the deceased did so understand. For the reasons that follow, the appellants have fallen well short of demonstrating any ground for interfering with this finding.
5. In explaining why that is so, it is convenient to begin by outlining some general principles concerning appellate review of findings of fact.

Principles of appellate review of findings of fact

1. This appeal is by way of rehearing, as is generally the case in appeals to this court.[111] That does not detract from the need for an appellant to identify error on the part of the primary decision-maker.[112] Further, in an appeal by way of rehearing, the court does not hear afresh all of the evidence. Rather the court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.[113]
2. An appellate court, in an appeal by way of rehearing, is obliged to conduct a 'real review'[114] of the trial and of the judge's reasons, and 'cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions.'[115]
3. In conducting its review of the case, the appellate court must observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record.[116] The law recognises that, compared to the trial judge, an appellate court has disadvantages that include, but are not limited to, not having seen and heard the witnesses.[117] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that the limitations of the appellate court, in proceeding on the record, include:[118]

[T]he disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. (footnotes omitted)

1. Because of this, the discernment of appellable error requires attention, at the outset, to the nature of the findings said by an appellant to be erroneous. The nature of the finding, and the reasoning by which it was made, affects what is required in order to demonstrate appellable error.[119] The nature and extent of the trial judge's advantage(s) informs what is required in order to reach, and the extent of any appellate restraint in reaching, a conclusion of error.[120] In this respect, as the appellants acknowledge,[121] it is necessary to distinguish between the reasoning of a trial judge which is based on a credibility determination, and the reasoning of a trial judge based on inferences drawn from facts that were undisputed or found.[122] This distinction, and its significance, has long been recognised.[123]
2. In the case of a finding that is based, at least to any substantial degree, on an assessment of the credibility of one or more witnesses, an appellate court will not interfere with the finding unless it is demonstrated to be wrong by reference to incontrovertible facts or uncontested testimony, or because the finding is glaringly improbable or contrary to compelling inferences, or because the trial judge failed to use, or has palpably misused, their advantage as trial judge.[124]
3. By contrast, an appellate court is, in general, in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding the proper inference to be drawn, the appellate court gives respect and weight to the conclusion of the trial judge. However, if it reaches a different conclusion, in other words, it concludes that error is shown because the trial judge was wrong as to the inference drawn, it must give effect to that conclusion.[125]
4. The New South Wales Court of Appeal has recently observed in this context that even where the trial judge's reasons do not involve any disputed findings of primary fact, the judge's evaluative conclusion based on an assessment of the whole of the lay and expert evidence is apt to turn on nuances in respect of which a degree of appellate caution is appropriate.[126] However, as explained below, on a proper analysis, the findings challenged by ground 1 of this appeal present more substantial hurdles for appellate intervention because of the primary judge's credibility-based findings of primary fact.

1. The terms of ground 1, and the appellants' submissions in support of it,[127] mischaracterise, in a fundamental respect, the nature of the judge's findings and reasoning in concluding that the deceased understood the extent of the property of which she was disposing. The appellants' submissions proceed on the misconception that the judge's determination of whether the deceased said the things recorded in Mr Haynes' notes concerning her property was a matter of inference.[128]
2. Drawing an inference involves making a deduction from primary facts.[129] Thus, before the question of whether a particular inference is to be drawn can be addressed, the primary facts must first be found. In this case, as explained below, the primary facts found by the judge amply sustain, indeed compel, the inference he drew in making the impugned finding - that the deceased understood the extent of her property.
3. Mr Haynes gave evidence that the deceased said to him what was recorded in his notes of the 15 July 2011 meeting as having been said by her. His evidence, as to what she said, was supported by his contemporaneous handwritten note, as well as by the typed attendance note he dictated by the day following the meeting, see [49] and [94] above. As we have said, at [95] above, that evidence was not challenged in cross-examination. The judge accepted this evidence. In other words, the judge found, in accordance with Mr Haynes' evidence, that the deceased told Mr Haynes that she had $450,000 in the bank and a bond worth about $290,000. No inference is involved in the judge's making of this finding. Rather, the judge accepted the direct evidence of a witness as to something the witness had himself heard.
4. Having made that finding, the judge drew the inference that the deceased knew her assets. Once the primary finding of fact referred to in [109] was made, this inference was inevitable. As the appell[130]s accept,130 what is recorded in the notes as to the deceased's assets amounts to an accurate statement of her assets at the time. If, as the judge found, the deceased said what is recorded in the notes as to her property, she thereby demonstrated an understanding of her assets.
5. Thus, contrary to the appellants' submission outlined at [91](3) above, central to the judge's reasoning in making the finding impugned by ground 1 was his acceptance of Mr Haynes' evidence concerning what the deceased said to him. The judge's acceptance of Mr Haynes' evidence as to the deceased being clear and coherent was very much of secondary significance.
6. No ground of appeal challenges the judge's credibility-based finding of primary fact referred to in [109] above. Nor did anything in the appellants' written submissions on the appeal do so. At the hearing of the appeal, the hurdles for the appellants, presented by the judge's findings of primary facts, became apparent in the course of exchanges with the bench. Counsel for the appellants, then, submitted that Mr Haynes' evidence was glaringly improbable, contrary to compelling inferences, inconsistent with uncontroverted facts and that the judge palpably misused his advantage as [131]al judge.131 However, counsel did not develop submissions in this framework. The substance of the appellants' submissions is that the judge should have found that it was Robyn, not the deceased, who made the statements as to the deceased's assets that are recorded in Mr Haynes' notes of the 15 July 2011 meeting. The matters to which the appellants point, including those summarised in [91] above, fall well short of meeting the high hurdles for overturning credibility-based findings of fact. Mr Haynes' evidence was supported by his contemporaneous notes, the genuineness of which was not disputed, and was not challenged in crossexamination. The handwritten notes were recorded in terms which unequivocally state, in their use of the first person, that the person speaking on the topic of property was the deceased. Robyn's concessi[132]that she 'could have'132 imparted the information is not evidence that she did so. The conflict, to whi[133]the appellants point,133 between the evidence of Robyn and of Mr Haynes as to when she was in the room with him, does not assist the appellants. The judge recognised the existence of the conflict and resolved it in favour of Mr Hay[134]' evidence and notes.134 There is no basis to interfere with that finding. In the circumstances, it was well and truly open to the primary judge to accept Mr Haynes' evidence that the deceased told him that she had $450,000 in the bank and a bond of about $290,000. Indeed, in our view, in light of the absence of any challenge in cross-examination to Mr Haynes' evidence on this point, and to the veracity of his notes, a contrary finding - that it was Robyn who made these st[135]ments - was not open.135
7. For these reasons, ground 1 fails.

Ground 2: the finding that the deceased was able to understand the claims to which she ought give effect in making her will

1. Ground 2 impugns the finding that the deceased was able to comprehend and appreciate the claims to which she ought give effect in making the 2011 Will. The appellants' submissions in support of ground 2 proceed on the premise that that finding was based on the following matters, which counsel characterised as 'inferences':

(1) The exclusion of two generations of descendants, and the deceased's statement to Dr Bohmer that she wanted to leave all her assets to her great granddaughter Bethany, did not make the 2011 Will irrational.

(2) The exclusion of Susan from the 2011 Will was partially justified because the deceased had given Susan a half share in the Dunsborough block.

(3) The exclusion of grandchild Meagan was justified given that the deceased resented Meagan for taking steps to keep her in residential care, and that Susan and Ainslie gifted Meagan their half shares in the Dunsborough block.

(4) The unusual or aggressive behaviours, confusion and worsening problems with her memory in the years leading up to the execution of the 2011 Will did not affect the deceased's capacity to comprehend and appreciate the claims to which she ought give effect.

(5) The confusion exhibited by the deceased on 15 April 2011, as to the number of her grandchildren and great grandchildren, did not affect the capacity of the deceased to comprehend and appreciate the claims to which she ought give effect.

(6) The trial judge's acceptance of Mr Haynes' opinion that the deceased was clear and coherent in her conversation with him, could understand what he was saying to her, and was clear in her instructions to him.

(7) Dr Lee's expert evidence was to be preferred to the expert evidence of Dr De Felice.

(8) Dr Bohmer's evidence could be ignored having regard to the evidence of Mr Haynes of his meeting with the deceased on 22 September 2011.[136]

1. The appellants' submissions go on to assert that each of these 'inferences' is against the weight of other evidence identified in the appellants' submissions.[137]
2. The observations at [102] - [105] above apply to the resolution of this ground. It is necessary to distinguish between the reasoning of a judge based, at least partly, on a credibility determination, and reasoning in drawing an inference from facts that were found or undisputed.
3. The appellants' submissions fail to grapple with the essence of the judge's reasoning in coming to the finding impugned by ground 2. As explained below, that reasoning was essentially founded upon the judge's credibility-based findings of fact as to what occurred at the 15 July 2011 meeting and the 22 September 2011 meeting. In referring to the judge's reasoning and findings at [644] [646] of the primary reasons,[138] the appellants focus on the judge's acceptance of Mr Haynes' evidence that, at the 15 July 2011 meeting, the deceased was clear and coherent.[139] As with the finding impugned by ground 1, that is not the critical aspect of Mr Haynes' evidence. Rather, what was critical to the judge's ultimate conclusion was his acceptance of Mr Haynes' evidence as to what the deceased did and said at their two meetings.
4. The judge accepted Mr Haynes' evidence that his file notes of 15 July 2011 and 22 September 2011 accurately recorded his communications with the deceased during their meetings on those days.[140]
5. Mr Haynes' typed attendance note of the 15 July 2011 meeting was in the following terms:[141]

15th July 2011

PLH attended Irene Okle on the 15th July 2011.

Mrs Okle has been widowed since 1975. She has two daughters Ainslie and Susan.

PLH took notes from Mrs Okle who to him clearly has full testamentary capacity and was very clear in her instructions. Mrs Okle states that over the years she has helped both her daughters and all her grandchildren. She gave her half acre block of land in Dunsborough to her daughters Ainslie and Susan. Susan transferred her half to Megan and Ainslie sold her half to Megan. Megan is one of the children of Susan. The grandchildren are as follows:

Stevan - Mrs Okle does not know where Stevan is. She let Stevan look after money at one point and bought him a car. He used her money to pay debts and she states get himself out of bankruptcy.

Robin [sic] - She is the daughter of Ainslie and the one who is the main one who comes to see her and looks after her. She states that she gave Robin $5,000.00 twenty years ago for a deposit on her house and she gave Robin $3,000.00 for a car port.

Michael is the third child of Ainslie. He is a 'nice man'. Mrs Okle states that she does not see him much however. He lives in Dongara and she gave him money for a car.

Andrew. She cannot remember giving him money but she did buy him a ride on lawn mower. Andrew has gone 'off the rails'. Her two daughters have had to obtain restraining orders from him and she thinks that in fact her daughter Susan and Susan's daughter Megan still have restraining orders. Mrs Okle does not know where Andrew is.

Megan and Ainslie and Susan do come and see her sometimes. Robin comes and sees her more.

Mrs Okle knows that she has about $450,000 or probably more in the bank and she has bond money from where she is living which is about $290,000 but this will reduce.

Mrs Okle stated that she wanted to leave her entire estate to Robin. She stated that Robin can then do what she likes with the money.

I gave her advice in relation to:-

1. an outright gift to Robin;
2. a gift to Robin into a half secret trust; and
3. a gift to Robin under a secret trust.

Although Mrs Okle is clearly an elderly lady she could understand what I was saying.

I also made clear to her that if in my opinion she gave all her money to Robin she was going to cause discontent in the family in all probability. I of course do not know her family but I do know that these sort of things do cause trouble and with an estate of over $700,000 her daughters may very well be put out by this and may very well look at pursuing a claim under the Inheritance Act. I was not saying that they would be able to succeed in any claim but they have the right to consider taking such a claim.

At this stage Robin who had greeted me when I arrived came and spoke with us and when her grandmother told her that she wanted the whole estate to go to her Robin was absolutely clear that she does not wish to have it. She stated that it was not fair on all the others and she was also equally concerned that she should not have the responsibility of deciding how to distribute this estate.

Mrs Okle considered her position further again and she feels that her daughters and her grandchildren have all benefited from her one way or another and therefore she wants to secure her estate to help her greatgrandchildren.

I spoke with Mrs Okle alone again on this matter to say that her daughters are not necessarily going to be happy about this. I advised her that the grandchildren have no rights to be unhappy and only have rights to pursue any claim should their parent predecease Mrs Okle. However Mrs Okle states that her daughters would not, or should not be unhappy with her securing money for her daughters' own grandchildren and therefore they would no doubt be quite happy with what she is doing.

At the conclusion of my interview with her Mrs Okle was absolutely crystal clear that she wants Robin and her grandson Michael to be the executors and she wants all the estate to be left in trust for the greatgrandchildren at 21.

I discussed with her whether she wants the estate split into fifths so that the greatgrandchildren share equally the onefifth that their parent as a grandchild might have had. Mrs Okle understood what I was saying but stated that she just wanted all the grandchildren to have exactly the same and the estate was therefore to be divided equally between all the greatgrandchildren of which there are at present 8. I am to make clear in the Will that the greatgrandchildren are to be the biological children of her own grandchildren.

I am also to put in the Will the declaration as to the reasons of not leaving the estate to her daughters namely that they have always been looked after and Mrs Okle is sure that they will agree to the estate being divided between their own grandchildren.

Robin rejoined us and I advised her what her grandmother wanted to do and she was happy to be executor. I discussed the possibility of instructing a trust company now such as Perpetual Trustees because this is going to be quite a responsibility but she states that she and her brother can look at this later once they commence the administration of the estate. Mrs Okle was happy with that and would rather still have Robin and Michael as executors rather than a trust company being formally instructed. She understands however that it would be wise for Robin and Michael to instruct a trust company such as Perpetual Trustees to manage this trust, as it is clearly quite a responsibility to hold all [this] money for several years for children until they are 21.

The executors are therefore:-

Robin Louise O'Dea

[address]

Robin is an office bookkeeper born on [date of birth]

and

Michael John Perkusich

[address]

[He] is a mine worker born on [date of birth]

After speaking to Mrs Okle I went and saw the nurse who told me that her doctor was Dr Rudolph Bohmer of Bright Beach Medical Practice. I later looked this up as 6/22 Hughie Edward Drive, Merriwa, WA 6030. Tel: 9305 9944.

Mrs Okle appreciates that more time is being involved in preparing her Will and taking her instructions and appreciates that our account will therefore be higher than the normal account which we try to do on a single Will for $300.00. This will involve further work and a further attendance upon her but we will of course still keep our account as reasonable as possible. It will be below normal charging rates.

PLH

1. The judge accurately summarised the effect of Mr Haynes' evidence and file note, as set out at [49] - [51] above. The judge's acceptance of the accuracy of Mr Haynes' file notes was the lynchpin of the finding impugned by ground 2. The judge accurately observed that, Mr Haynes' evidence and file notes established that, during the 15 July 201[142]eeting, the deceased:142
   1. Identified her two children and her five grandchildren;
   2. Expressed the view that she had helped both of her daughters and explained why she was of this view;
   3. Expressed the view that she had helped her grandchildren and, with the possible exception of Meagan, explained why she was of this view (although she did point out that Susan had transferred her half share in the Dunsborough block to Meagan and that Ainslie had sold her half share in the block to Meagan);
   4. Stated that she felt that her daughters and grandchildren had all benefited from her one way or the other and that she therefore wanted to secure her estate to help her great grandchildren;
   5. Expressly stipulated that only her biological great grandchildren were to benefit from her estate (thus revealing that she had in contemplation that some of her grandchildren had blended families);
   6. Stated to Mr Haynes that she wanted all of the great grandchildren to have exactly the same and that the estate was to be divided equally between all eight great grandchildren; and
   7. Instructed Mr Haynes to incorporate into the will a declaration of her reason for not leaving the estate to her daughters.
2. As the judge found, it follows from this that, in the course of her discussions with Mr Haynes, the deceased expressly referred to each of her children and grandchildren, and explained why she was bypassing each of them in her will.[143] In so acting, as the judge found, the deceased demonstrated that, on 15 July 2011, she had the capacity to, and in fact did, consider the nature of the claims of those whom she was excluding from the will, namely her daughters and her grandchildren.[144] The deceased's express stipulation of biological great grandchildren tends to confirm her testamentary capacity generally and, in particular, her capacity to appreciate the claims to which she ought give effect in making her will.
3. In support of ground 2, as well as all the other grounds, the appellants point to the fact that, in the course of the 15 July 2011 meeting, the deceased changed her mind several times as to her intended testamentary dispositions.[145] This point does not assist the appellants. As the primary judge found,[146] the fact that the deceased was evidently able to take on board the things said by Mr Haynes, and by Robyn, and to adapt her instructions to take account of what each had said to her, tends to confirm her testamentary capacity.
4. Further, at the 22 September 2011 meeting, the deceased corrected Mr Haynes by telling him that her instructions had been that her estate was to be left to her biological great grandchildren, rather than to her great grandchildren as he had said.[147] Mr Haynes then read the rest of the will, including the declaration in cl 5, and the deceased indicated she understood and approved the will, including the declaration.[148]
5. In coming to his ultimate conclusion on the finding impugned by ground 2, the judge had regard to the matters on which the appellants had relied at trial, which matters encompass, substantially, all of the matters on which the appellants rely in support of ground 2.[149] In essence, the judge found that:

(1) the matters, independent of the circumstances surrounding the making of the 2011 Will, on which the appellants relied; and

(2) the evidence of Dr Bohmer, including his letter of 6 September 2011, and what could be inferred from it;

did not detract from the inference sustained by what the deceased did and said at her meetings with Mr Haynes.[150]

1. No error is revealed by this reasoning. The appellants have not established any basis to interfere with the judge's credibility-based factual findings as to Mr Haynes' two meetings with the deceased. Accepting those findings, on our view of the record of the evidence as a whole, and giving full weight to all of the matters to which the appellants point, we are far from persuaded of any error in the finding impugned by ground 2.
2. Consequently, ground 2 fails. We add the following observations as to the appellants' specific submissions concerning each of the matters set out in [114](1) (8) above.
3. As to [114](1) (3) above, the appellants, in effect, challenge the judge's finding that the dispositions in the 2011 Will do not sustain the conclusion that the 2011 Will was[151]rational.151 The evidence to which the appe[152]nts point152 falls well short of demonstrating, or suggesting, error on the part of the primary judge. The question for the trial judge was not whether the deceased's reasons for excluding other family members were, in an objective sense, justified. The critical question is whether the deceased had the capacity of sound judgement, not whether she in fact made the judgement about the disposition of her estate soundly and for reasons which appear to the court[153] be good.153 Further, in our respectful view, the evidence to which the primary ju[154] referred154 supports and sustains the conclusion to which his Honour came. Moreover, we agree with the primary judge's observation that the fact that the deceased had, over the years, made differing statements about to whom she was going to leave her estate does not provide a sound basis for concluding that the 2011 Will was irrational, or that she lacked capacity. As the judge said, a person is entitled to change their mind about the disposal of their estate and doing so provides little or no indication of a lack of testamenta[155]capacity.155
4. As to [114](4) above, contrary to the appellants[156]ssertion,156 the judge did not find that the deceased's unusual or aggressive behaviours, and worsening problems with her memory in the years leading up to the execution of the 2011 Will did not affect her capacity to comprehend and appreciate the claims to which she ought to give. The judge found that those matters were relevant to the capaci[157]question.157 In coming to his ultimate conclusions, the judge weighed those matters, together with the other findings of fact that he had made in his evaluation of whether the deceased had the capacity to understand the claims to which she ought give effect in making th[158]011 Will.158 Far from revealing error, that reflects a proper approach to the primary judge's task.
5. Corresponding observations can be made in relation to the matters in [114[159]5) above.159
6. As to [114](6) above, as already noted, the judge's acceptance of Mr Haynes' evidence that the deceased was clear and coherent was not of critical significance. What was critical was the judge's acceptance of Mr Haynes' evidence as to what the deceased did and said at their two meetings.
7. As to the matters in [114](7) above, in resolving conflicts between expert witnesses, the primary judge had a considerable advantage over this court in having seen and heard those witnesses. Those advantages engage the element of appellate restraint in discerning error reflected in the principles outlined at [104] above concerning credibility-based findin[160]of fact.160 The appellants did not attempt to meet the high hurdle of establishing error by reference to these principles; they simply asserted that Dr De Felice's report was 'far more learned', while Dr Lee's report 'doesn't really go into the detail that Dr De F[161]ce did'.161
8. Finally, as to [114](8) above, contrary to the appellants' [162]ertions,162 the judge did not find that Dr Bohmer's evidence could be 'ignored'. Rather, the judge found that Dr Bohmer's evidence did not overcome the combined force of the facts established by Mr Haynes' evidence as to what the deceased did and said at their tw[163]eetings.163 No error is revealed in that conclusion. To the contrary, we respectfully agree with it.
9. For these reasons ground 2 fails.

1. Ground 3 relies on the success of grounds 1 and 2.[164] Those grounds having failed, ground 3 also fails.

Ground 4: the finding that the deceased knew and approved the contents of the 2011 Will Legal principles

1. The applicable legal principles were not in dispute. For present purposes they may be summarised as follows:

(1) The proponent of a will must satisfy the court that the testator knew and approved the contents of the will at the time of its execution.[165]

(2) On proof of testamentary capacity and due execution, there is a presumption of knowledge and approval of the contents of the will at the time of execution. The presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator.[166]

(3) To count as 'suspicious circumstances', the circumstances must be capable of throwing light on whether the testator knew and approved of the contents of the will.[167]

(4) A wide variety of circumstances are capable of amounting to a suspicious circumstance for this purpose.[168]

(5) What evidence will be sufficient to allay the court's suspicion will depend upon what it was about the circumstances that made them suspicious.[169]

(6) Evidence that the testator gave instructions for the will, or that it was read over by or to the testator, has been said to be the most satisfactory evidence of actual knowledge of the contents of the will.[170]

(7) However, proof that the will was read by or to the testator before its execution may not, in all cases, be sufficient. The weight to be given to that fact is to be determined in light of all of the circumstances of the case.[171]

(8) Where the propounder of the will played a part in its preparation and takes a substantial benefit under it, that person must affirmatively establish that the testator knew the contents of the will and appreciated the effect of what they were doing, so it can be said that the will contains the real intention, and reflects the true will, of the testator.[172]

(9) Testamentary capacity and the requirement of the testator's knowledge and approval are distinct concepts; proof of capacity is not sufficient to establish knowledge and approval.[173]

1. Ground 4 impugns the judge's finding that, at the time she executed the 2011 Will, the deceased knew and approved of its contents. Ground 4 asserts two errors, reflected in pars (a) and (b) of the ground.
2. By par (a) of ground 4, the appellants contend that the judge conflated the requirement for testamentary capacity with the requirement for knowledge and approval. They submit that such conflation occurred in the judge's consideration of the relevance of the deceased's telling Dr Bohmer, in the 6 September 2011 assessment, that she wanted to leave her estate to Bethany.[174] In that respect, the appellants contend that the judge wrongly gave excessive weight to his findings as to the 15 July 2011 meeting, 10 weeks earlier, in preference to what the deceased told Dr Bohmer on 6 September 2011.[175]
3. The appellants further submit that the judge also conflated these two requirements in his consideration of various circumstances upon which the appellants relied. The judge set out the following circumstances surrounding the preparation of the 2011 Will, on which the appellants relied in denying knowledge and approval on the part of the deceased:[176]
   1. Robyn had by 2011 obtained from the deceased an Enduring Power of Attorney in the knowledge of the existing Enduring Power of Attorney in favour of Susan and Meagan and in circumstances where Susan and Meagan were never notified that their Enduring Power of Attorney had been revoked or withdrawn;
   2. Robyn arranged for Mr Haynes to prepare the 2011 Will;
   3. Robyn introduced the deceased to Mr Haynes when he attended at Anchorage on 15 July 2011 and remained with the deceased and Mr Haynes for at least a short time thereafter;
   4. At the meeting Mr Haynes took instructions from the deceased for the preparation of the 2011 Will;
   5. Mr Haynes thereafter sought a medical opinion as to the deceased's testamentary capacity from Dr Bohmer and by his report dated 6 September 2011 Dr Bohmer set out what the deceased had told him about her assets and that it was her wish to leave all of her assets to her great granddaughter Bethany;
   6. Bethany is Stevan's daughter; and
   7. The 2011 Will was executed by the deceased approximately nine weeks after Mr Haynes obtained the deceased's instructions and over two weeks after the deceased had told Dr Bohmer how she wanted to dispose of her assets in her will.

In particular, the appellants submit that this conflation is revealed by the judge's immediately subsequent observation that:[177]

[F]or reasons that are apparent from what I have said in deciding that the deceased had the capacity to comprehend and appreciate the claims to which she ought to give effect, I do not consider that the sequence of events as outlined provides any basis for concluding that the deceased did not know and approve of the contents of the 2011 Will at the time that she signed it. Of particular relevance in this context, in my view, is the evidence of Mr Haynes as to what occurred at his meeting with the deceased on 22 September 2011.

1. Secondly, by par (b) of ground 4, the appellants contend that the primary judge 'failed to consider the cumulative effect of the circumstances surrounding the preparation and execution of the 2011 Will, together with all the suspicious circumstances relied on by the appellants'. They submit that there is 'no reasoned analysis' by the judge of this.[178] They contend that the judge was required to, but did not, ask himself whether, in the light of all of these circumstances, the respondents had removed the suspicion, held by the court, that the deceased did not know and approve of the contents of the 2011 Will.[179]
2. The appellants list a number of matters which they contend were, relevantly, suspicious circumstances.[180] Relying on the principle at [135](8) above, particular matters emphasised by the appellants as suspicious circumstances are:

(1) 'that the [2011] Will operated to the advantage of the person having significant influence over [the deceased] namely [Robyn]'; and

(2) 'that the propounders of the 2011 [Will] (being [Robyn] and her brother Michael) are the parents of six of the eight great grandchildren'.[181]

1. By ground 1 of the notice of contention, the respondents contend that the primary judge should have found that, once the respondents had proved capacity and due execution, there was a presumption, that the appellants failed to rebut, that the deceased knew and approved the contents of the 2011 Will. It is not necessary to determine the merits of this contention because, for the reasons set out below, assuming, favourably to the appellants, that the respondents bore the onus of proving knowledge and approval, on the judge's findings of fact, his Honour was correct in concluding that knowledge and approval had been proved.

1. The following findings of the judge are unchallenged:[182]

(1) At the 15 July 2011 meeting, the deceased gave instructions to Mr Haynes for him to prepare her will by which the whole of her estate was to be held on trust to be divided equally between her biological great grandchildren, upon their reaching the age of 21 years.

(2) Having prepared a draft will, Mr Haynes met with the deceased in the 22 September 2011 meeting and read the will to her, slowly, in stages. The judge accepted Mr Haynes' evidence as to what occurred.[183] Mr Haynes' evidence was in the following terms:[184]

I read the will to her slowly, in stages. I read the opening words to her and then said words to the effect: This means that this is your last will and all other wills are revoked. She said yes, I understand or words to that effect. I read clause 2 and then explained that Robyn and Michael would manage and distribute her estate. I read the opening words of cl 3 and explained that this meant everything she owned. I read cl 3(a) and explained that first Robyn and Michael must pay all of her debts. Then I read cl 3(b) and started to explain that everything she owned after payment of debts went to her great grandchildren in equal shares when Mrs Okle said words to the effect: I said biological great grandchildren.

I apologised and then hand wrote on the will, after the word 'grandchildren' on the second line of cl 3(b), the words 'who are the biological children of my grandchildren'. I finished reading the will to Mrs Okle. At all times Mrs Okle was alert and engaged with me in the process of reading the will. Apart from my said omission she made it clear to me by saying 'yes'.

(3) After having the will redrafted to correct his omission of the reference to biological great grandchildren, Mr Haynes had his wife, Alyson, and daughter, Natasha, attend on the deceased on 23 September 2011. Alyson read the 2011 Will to the deceased one paragraph at a time, asking if she understood what had just been read to her.[185]

1. Having made these findings, the judge observed, with respect correctly, that the evidence of Mr Haynes as to what occurred with the deceased at the 22 September 2011 meeting was of particular significance to the issue of knowledge and approval.[186] In our respectful opinion, these factual findings having been made, the conclusion that the deceased knew and approved the contents of the 2011 Will was inevitable. The 2011 Will was brief, and its contents were not complicated. Its substance was reflected in the disposition of the whole of the estate on trust for the deceased's biological great grandchildren. The deceased's knowledge and approval of the contents of the 2011 Will was demonstrated when she corrected Mr Haynes' omission, made in preparing the draft will, so as to limit the beneficiaries of her will to her biological great grandchildren, as she had earlier requested. She thereby reiterated, one day before she executed the 2011 Will, her desire for, and, thus, her knowledge and approval of, a will in the terms of the 2011 Will.
2. Contrary to the appellants' assertions in ground 4(a), the judge did not err by conflating the requirement of knowledge and approval with the requirement of testamentary capacity. To the contrary, the judge bore squarely in mind that the requirements were distinct, and were not to be conflated.[187] Some of the appellants' submissions appear to assert or assume that because the two requirements are conceptually distinct, the same factual findings cannot be relevant to both requirements.[188] That is not so. For example, the judge's factual findings as to what occurred at the 15 July 2011 meeting and the 22 September 2011 meeting were of central relevance to the judge's evaluation of both the question of capacity and the question of knowledge and approval. Nothing in the primary judge's references, in the course of considering knowledge and approval, to his earlier findings concerning testamentary capacity reveals or suggests any conflation of the two requirements.
3. The appellants' submissions, outlined at [137] above, as to Dr Bohmer's evidence wrongly treat the judge's approach as involving a choice between what occurred on 15 July 2011 and what the deceased told Dr Bohmer on 6 September 2011. That overlooks the critical significance of the judge's findings as to what occurred on 22 September 2011.
4. The appellants' assertion, by ground 4(b), that the judge failed to consider the cumulative effect of the circumstances surrounding the preparation and execution of the 2011 Will, together with all the suspicious circumstances relied on by the appellants, is without merit. His Honour did precisely what the appellants assert he failed to do. The judge gave detailed consideration to the various circumstances relied on by the appellants as constituting 'suspicious circumstances', dealing with this in his primary reasons from [666] [695]. The judge carefully and comprehensively explained why, in his view, notwithstanding those matters, given his findings as to the deceased's meetings with Mr Haynes on 15 July 2011 and 22 September 2011, he was satisfied that the deceased knew and approved the contents of the 2011 Will.
5. In their submissions on appeal, the appellants set out a number of matters said to constitute suspicious circumstances. Many of those matters, including that at [140](1) above, overlook, or do not adequately accommodate, unchallenged findings of primary fact made by the trial judge. It is, at least, doubtful that each matter is properly seen as a suspicious circumstance in the relevant sense. In any event, even assuming that all of these matters amount to suspicious circumstances, for the reasons already given, it was well open to the trial judge to be satisfied, based on his findings as to events on 15 July 2011, 22 September 2011 and 23 September 2011, that the deceased knew and approved the contents of the 2011 Will. In other words, the judge's findings as to the events of 15 July 2011, 22 September 2011 and 23 September 2011 meant that the respondents had discharged their onus (assuming the onus was on them - see [141] above) of proving that the deceased knew and approved the contents of the 2011 Will. Any suspicion arising from the circumstances on which the appellants rely was and is dispelled.
6. For these reasons, ground 4 fails.

1. As we have said, by their notice of contention, the respondents advance three grounds on which the primary judge's decision should be upheld.
2. We have already explained, at [141] above, why it is not necessary to determine ground 1 of the notice of contention.
3. Ground 2 of the notice of contention asserts that the primary judge should have found that where, as here, instructions for the will are given on a day antecedent to its execution, the date of instructions is the crucial date.[189] It is not necessary to determine the merits of this contention because, on the judge's findings, and for the reasons given in rejecting grounds 1 and 2 of the appeal, the deceased had capacity on both the day she made the 2011 Will (23 September 2011) and the day on which she gave instructions for it (15 July 2011).
4. Ground 3 of the notice of contention asserts that the primary judge should have found that, in the circumstances of the case, the deceased's two children were the only natural objects of her bounty.[190] In other words, the respondents assert that, insofar as the judge treated the deceased's grandchildren as also being natural objects of her bounty, the judge erred. It is not necessary to decide whether, for the purposes of determining her testamentary capacity, the natural objects of the deceased's bounty were, on a proper analysis, limited to her two children. That is because, for the reasons given in resolving ground 2, there was no error in the judge's conclusion that the deceased had the capacity to understand the claims of her children and grandchildren as the natural objects of her bounty.

1. For the above reasons, none of the grounds of appeal has been made out. The appeal must be dismissed.
2. We would hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Power v Smart [2018] WASC 168 (primary reasons).

[2] What follows under this heading, and the next three headings, is, unless otherwise indicated, taken from the primary reasons and was not in dispute at trial or on appeal.

[3] Statement of Ms Power [11], exhibit 78, GAB 46.

[4] The judge referred to cl 4(f), but the relevant clause is cl 4(e) - GAB 175.

[14] Primary reasons [196] - [201].

[20] Primary reasons [211] - [219].

[22] Primary reasons [224] - [251].

[26] Primary reasons [257], referring to defendants' submissions [32](h), BAB 181.

[27] Defendants' submissions [39], BAB 184, referred to in primary reasons [259].

[28] Primary reasons [260](1), referring to defendants' submissions [40](a), BAB 184.

[29] Primary reasons [260](2), referring to defendants' submissions [40](b), BAB 184 - 185.

[30] Primary reasons [260](3), referring to defendants' submissions [40](c), BAB 185.

[31] Primary reasons [262], referring to defendants' submissions [42], BAB 185.

[32] Primary reasons [264], referring to defendants' submissions [43], BAB 185 - 186.

[33] Primary reasons [373] - [374].

[39] The primary judge applied the principles stated in Saunders v The Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226.

[40] Primary reasons [595], [597], [598], [599], [601].

[41] Saunders v The Public Trustee [159].

[42] Saunders v The Public Trustee [199].

[43] Saunders v The Public Trustee [199].

[44] Saunders v The Public Trustee [200].

[45] Saunders v The Public Trustee [202].

[46] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570.

[56] Primary reasons [613] - [642].

[57] Primary reasons [616] - [622].

[58] Primary reasons [614] - [615].

[60] Primary reasons [629] - [630].

[78] Primary reasons [661] - [664].

[88] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[89] Primary reasons [682] - [693].

[91] Appellant's submissions [26]; appeal ts 25.

[93] Appellants' submissions [28] - [29].

[96] Appellants' submissions [27]; appeal ts 31.

[98] Appellants' submissions [30]; appeal ts 4.

[99] Appellant's submissions [33], referring to ts 264.

[101] Appellants' submissions [31] - [36]; appeal ts 20 - 21, 22.

[102] Appellants' submissions [37]; appeal ts 11 - 12, 14, 15.

[103] Appellants' submissions [37]; appeal ts 19, 37.

[107] Statement of Mr Haynes [4], exhibit 56, GAB 6.

[110] Defendants' submissions [1] - [11], BAB 166 - 174.

[111] Supreme Court (Court of Appeal) Rules 2005 (WA), r 25.

[112] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23]; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [13] - [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 [22]; Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2018] WASCA 32; (2018) 53 WAR 156 [58].

[113] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [22]; Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460 [65].

[114] Fox v Percy [25]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43]; Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47].

[115] Fox v Percy [25]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 [32].

[116] Fox v Percy [23]; RCR Tomlinson Ltd v Russell [2015] WASCA 154 [57].

[117] Fox v Percy [23]; Lackovic [66]; Brett v Rees [2009] WASCA 159 [69]; Branir [24], [25], [28].

[119] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [41] - [43]; H v P [2011] WASCA 78 [47]; Branir [24]; Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 261 FCR 301 [45].

[120] Branir [24] - [29]; H v P [47]; Aldi Foods [7] - [10], [47], [53].

[122] Fox v Percy [88]; Lackovic [67]; Aldi Foods [54].

[123] See, for example, Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 562; Landers v Landers [1914] HCA 74; (1914) 19 CLR 222, 230.

[124] Fox v Percy [28] - [29]; Robinson Helicopter v McDermott [43]; Woodley v Woodley [2018] WASCA 149 [154]; Aldi Foods [46], [54].

[125] Warren v Coombs [1979] HCA 9; (1979) 142 CLR 531, 551; Minister for Immigration and Border Protection v SZVFW [41]; Aldi Foods [47], [48], [54]; Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359, 369, which has been adopted by this and other intermediate and appellate courts: See East Metropolitan Health Service v Jane Elizabeth Popovic as executrix of the will of Emil Popovic [2019] WASCA 18 [107].

[126] Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 [116] - [118].

[127] See [91](2) above.

[128] See, for example, the submissions summarised at [91](2), (4), (5) and (6).

[129] Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367, 375; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 [5]; Heydon JD, Cross on Evidence (11th Aust ed, 2017) [1100].

[133] See [91](4)(a) above.

[135] See, for example, RCR Tomlinson v Russell [69] - [71].

[137] Appellants' submissions [41] - [48].

[138] See [71] - [73] above.

[139] Appellants' submissions [40](f), [45], [46], [48](d); appeal ts 43, 44.

[140] Primary reasons [252], [265].

[143] Primary reasons [620], [646].

[145] Appellants' submissions [37], [48](c), [56](d); appeal ts 40 - 42.

[147] Primary reasons [651] - [652].

[149] Primary reasons [613] - [641], [647] - [651], [659].

[150] Primary reasons [642], [646], [649], [651] - [653], [655].

[151] Appeal ts 42, see primary reasons [616] - [622].

[152] Appellants' submissions [41] - [43]; appeal ts 42.

[153] Saunders v Public Trustee [199].

[154] Primary reasons [618] - [621].

[156] Appellants' submissions [40](d).

[158] Primary reasons [642] - [655].

[159] See primary reasons [641] - [655].

[160] Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167, 179; Robinson Helicopter v McDermott [43]; Christos v Curtin University of Technology [2017] WASCA 110; (2017) 267 IR 209 [104].

[162] Appellants' submissions [40](h).

[163] See primary reasons [649] - [653], [655].

[164] See appellants' submissions [49]; appeal ts 45.

[165] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 [44]; Veall v Veall [2015] VSCA 60; (2015) 46 VR 123 [166].

[166] Tobin v Ezekiel [46]; Veall v Veall [169].

[168] McKinnon v Voigt [1998] 3 VR 543, 555; Veall v Veall [174].

[169] Tobin v Ezekiel [47] - [48]; Veall v Veall [172].

[170] Tobin v Ezekiel [47] and cases there cited.

[171] Veall v Veall [176] - [178].

[172] McKinnon v Voigt (555); Tobin v Ezekiel [47]; Veall v Veall [179].

[174] Appellants' submissions [50] - [53], referring to primary reasons [673].

[175] Appellants' submissions [51] - [53]; appeal ts 79 - 81.

[177] Appeal ts 70, 71, 73 - 74, referring to primary reasons [670].

[180] Appellants' submissions [56]; appeal ts 48, 55 - 58, 60 - 61, 67, 68, 69, 70.

[181] Appellants' submissions [56](d)(i), (iii), (e); appeal ts 55 - 58, 60 - 61, 69 - 70.

[182] Or, to the extent they have been challenged, the challenge fails: see [112] above.

[183] Primary reasons [222], [252], [265], [651].

[184] Statement of Mr Haynes [13], [14], exhibit 56, GAB 8.

[186] Primary reasons [670], [673].

[187] Primary reasons [661], [680].