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

SMART -v- POWER [2019] WASCA 106 (2 August 2019) - WASCA 2019 case summary — Zoe

[14]

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.
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.
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.
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.
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.
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.
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:

[16]

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.
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.
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.
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'.
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').
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.
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.

[26]

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]
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.
After the meeting, Robyn did not discuss the will or its contents with either Mr Haynes or the deceased.[8]
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]
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]
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]
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]

[27]

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]
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.
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]

[28]

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.

[64]

As we will explain, in our respectful opinion, this conclusion, and the reasoning underpinning it, cannot be faulted.
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]
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]
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]
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.
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]
The judge summarised the position in the following manner:[77]

[74]

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.
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]
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]
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]
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]
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.

[105]

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.
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]
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.
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.
In explaining why that is so, it is convenient to begin by outlining some general principles concerning appellate review of findings of fact.

[109]

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]
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]
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]
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.

[110]

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]
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.
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.
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.
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.
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
For these reasons, ground 1 fails.

[127]

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:-

[130]

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.
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.
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.
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]
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:

[134]

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.
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.
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
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.
Corresponding observations can be made in relation to the matters in [114[159]5) above.159
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.
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
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.
For these reasons ground 2 fails.

[147]

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.
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]
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.

[159]

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.
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.
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.
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.
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.
For these reasons, ground 4 fails.

At a glance

Court

Decision date

Before

Source

Judgment (258 paragraphs)

Knowledge and approval: applicable legal principles

Principles of appellate review of findings of fact

Legislation Cited (1)

Cases Cited (22)