Starr v Miller; Starr v Miller

Procedural Background

1. By Statement of Claim, bearing proceeding number 2020/34748, filed on 3 February 2020, the Plaintiff, Susan Maree Starr, a now adult daughter of the deceased, sought an order for revocation of the grant of Probate of the 2012 Will and an order that Probate in solemn form of a professionally drawn Will, (incorrectly dated therein) 28 May 2006, be granted to her and the first Defendant, Margo Anne Miller, with leave reserved to Belinda Louise Atlee and Emma Jane Buckley, the only two other children of the deceased, to apply for Probate. The four daughters of the deceased were the executors named in the 2006 Will. The Plaintiff also sought an order for her costs.
2. I shall refer to each of these Wills, although there is a dispute about the validity of the 2012 Will, as "the 2012 Will" and "the 2006 Will" (as correctly dated), respectively, only for convenience and without any prejudgment.
3. The Plaintiff filed an amended Statement of Claim on 12 March 2020 naming the same Defendants, correcting the date of the 2006 Will, and seeking the same relief.
4. Without conveying undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased by their first name.
5. During the course of the hearing, Susan and Margo, sensibly, were able to agree that if Susan was successful in the Probate suit, letters of administration with the 2006 Will annexed, should be granted to an independent solicitor, Kim Rickards. His consent had been obtained to that course: Ex P5. In this way, the potential for further disputes between them, concerning the administration of the deceased's estate, could be avoided.
6. The Defendants opposed the revocation of the grant of Probate. They did not dispute the validity of the 2006 Will but stated that it had been revoked by the 2012 Will. There was really no dispute that even though Probate had been granted, the case was one requiring them to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2012 Will.
7. In her Cross-Claim, filed on 14 February 2020, Margo sought a family provision order out of the estate, or notional estate, of the deceased, only in the event that Probate of the 2012 Will was revoked. Her claim for a family provision order was brought under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Margo also sought an order for costs of the proceedings.
8. I shall refer to the proceedings for revocation of the grant of Probate as the Probate proceedings.
9. The two other proceedings that were to be heard were proceedings in which a family provision order was sought out of the estate and notional estate of the deceased. The proceeding filed first in time, was a proceeding bearing number 2019/162556, in which the Plaintiffs were Belinda and Emma. At the commencement of the hearing, the Court was informed that the proceeding had been resolved between the parties and that Short Minutes of Order and a Deed between the parties to reflect the agreement that had been reached were in the course of preparation.
10. The Court noted that Susan would need to agree with the form of orders and the way in which the matter had been resolved if the settlement involved any payment, out of the deceased's estate, to Belinda and/or Emma, or otherwise. I shall refer to the events that occurred later in these reasons. (Subsequently, Susan did not oppose the orders that were made in these proceedings.)
11. The other proceeding, which bears the proceeding number 2019/162571, is one in which Susan is the Plaintiff. She filed this proceeding because of the possibility that Probate of the 2012 Will would not be revoked, or would be revoked, with a grant of Probate in solemn form of that Will. However, senior counsel for Susan confirmed that in the event the Court found the 2006 Will to be the last valid Will of the deceased, the proceeding for a family provision order could be dismissed.
12. The parties also agreed that if an order for provision out of the deceased's estate were made in Susan's favour, because her Probate proceeding was dismissed, that in order to save further costs and expenses, the order should be made "in lieu of the provision made for her" in the 2012 Will.
13. I shall refer to Susan's proceedings numbered 2019/162571, and the claim made by Margo, by way of Cross-Claim filed in the Probate proceedings, as the family provision proceedings.
14. During the course of submissions, the Court raised with senior counsel, the question whether, if the Probate proceeding was dismissed, it was necessary to revoke the grant in common form of Probate of the 2012 Will and to make a grant of Probate in solemn form of the 2012 Will. It was not necessary, at that stage, to express a concluded view about this aspect as much would depend upon the order for provision, if any, to be made for Susan, and the method by which the order could be satisfied.
15. Although I shall leave that question to be determined after the parties have had an opportunity to consider these reasons for judgment, I should note that the practice of the Court, where probate in solemn form is granted after probate in common form has been granted, is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form, and the newly made grant in solemn form, are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred.
16. I note that the original grant of Probate had been delivered to the Court and was marked, in the Probate proceedings, as Ex D3. It remains with the Court file.
17. If a family provision order is made in favour of Susan, it is important to remind the legal representatives that a certified copy of any order made under the Act must be copied onto the grant of probate as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will: s 72(1)(a) of the Act. It is only if the order is actually endorsed on the grant of probate can the grant correctly represent what are the dispositive provisions of the Will of which probate has been granted: Gould v Gould [2005] NSWSC 914, at [6] (Campbell J). Also see Paragraph 23(a) of Practice Note SC Eq 7.
18. Considering the above, the following alternatives exist: if the 2012 Will is confirmed to be the last valid Will of the deceased, then Susan's claim for a family provision order will need to be determined and Margo's Cross-Claim would be dismissed; if Probate in solemn form of the 2006 Will is granted, Susan's proceedings for a family provision order will be dismissed and Margo's claim for a family provision order will need to be determined.
19. All proceedings were listed for concurrent hearing, for 9 days, commencing on 23 February 2021. (As it turned out, because of the settlement of Belinda's and Emma's proceedings, the hearing lasted 6 days). At the commencement of the hearing, without objection, the following order was made in the proceedings: "Notes the associated proceedings… Orders that these proceedings and the associated proceedings be heard consecutively, with the evidence in one being evidence in the other."
20. The order for a concurrent hearing had been anticipated when the matters were set down for hearing, and was made without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 2.1, which provides that the Court "at any time, and from time to time, [may] give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings". In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that "it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…".
21. There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were relevant to each proceeding, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the deceased's estate has also been put to less expense in having only one set of hearings, rather than two or three; the just, cheap and quick hearing of all of the matters in dispute were facilitated; all parties, as affected persons, participated in the Probate proceedings; and the most efficient, and expedient, use of resources, for the parties, and, by implication, the Court, was achieved.
22. For those reasons, it was not only "desirable", but also "convenient", to make an order that the proceedings be heard consecutively, with the evidence in one being evidence in the other. (In the events that happened, neither Susan, nor Margo, sought to read any of the evidence filed in the proceedings by Belinda and Emma.)
23. The parties had discussed the order of witnesses before the hearing commenced. This necessitated some flexibility in the timing of the reading of the pleadings and the affidavits and in dealing with the objections to the affidavit evidence. However, this, too, was able to be achieved in an orderly manner and with the co-operation of the legal representatives.
24. The legal representatives of the parties are to be commended for the co-operative approach taken during the hearing and also for the way in which the hearing was conducted by them. I am also grateful to all counsel for the detailed submissions provided before, and during, the hearing, which has assisted the Court in the preparation of these reasons.
25. Finally, I should mention that the Court followed the Supreme Court's Coronavirus (COVID-19) announcement of 29 January 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation.

Summary

1. The main issues that needed to be determined were, and my conclusions, are: 1. Did the deceased have testamentary capacity when she made the 2012 Will? I conclude that she did. 2. Did the deceased know and approve the contents of the 2012 Will? I conclude that she did. 3. Should a family provision order be made for Susan out of the deceased's estate? I conclude that an order for provision should be made. 4. Should a family provision order be made for Margo out of the deceased's estate? I conclude that an order for provision should not be made.

Some formal matters not in dispute

1. There are affidavits of each attesting witness of the 2006 Will. It was duly executed.
2. There are affidavits of each attesting witness of the 2012 Will. It was duly executed.
3. Whilst Susan was likely to have been aware of at least some of the facts and circumstances upon which she sought to base her assertions of the deceased's lack of testamentary capacity, and also lack of knowledge and approval, she had made no attempt to oppose the making of the common form grant of Probate when it was sought by the Defendants. Then, despite the making of the common form grant, she made no attempt to have it revoked, but on the contrary, commenced the family provision proceedings in May 2019, and prosecuted them upon the basis that, because of the terms of the 2012 Will, Probate of which had been granted to the Defendants to those proceedings, she had been left without adequate provision for her maintenance, education or advancement in life.
4. The matter had been in the Family Provision List (as the Succession List was then called) on 28 June 2019, 30 August 2019 (having, in the meantime, been to a private mediation), and on 27 September 2019. It was not until a directions hearing, held on 19 December 2019, that the Court was first informed, by junior counsel, that Susan intended to commence proceedings challenging the validity of the 2012 Will which had been the subject of a grant of probate made by this Court on 15 October 2018.
5. In Paragraph 5 of her Statement of Claim filed on 3 February 2020, Susan attributed her failure to commence the Probate proceedings to being "mistaken as to the date on which the Deceased was diagnosed with Alzheimer's disease and was not aware of many of the facts pleaded below". She then set out various allegations concerning the deceased's medical condition.
6. Nothing more needs to be said about this matter as it was not raised as a matter going to the exercise of the Court's discretion in relation to the revocation of the grant of Probate.
7. The only persons, remaining in the proceedings, who would be adversely affected whatever orders are to be made in the Probate proceedings, or in the family provision proceedings, are Susan and Margo. Belinda and Emma, as will be read, no longer have any interest in the determination of what is the last valid Will of the deceased, or in the order for provision to be made for Susan.
8. Susan commenced her family provision proceedings by Summons filed on 24 May 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).
9. Margo filed her Cross-Claim, in the Probate proceedings, on 14 February 2020, that is outside the time prescribed by the Act. At the commencement of the hearing, senior counsel for Susan confirmed that if it became necessary to determine Margo's claim for a family provision order, and if an order were to be made for additional provision, Susan consented to the application being made out of time, as permitted by s 58(2) of the Act: Tcpt, 23 February 2021, p 6(19-41).
10. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of Susan, Belinda, Emma, and Margo, is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person's status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased's death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an "eligible person" in s 57(1)(c) of the Act).
11. However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, "… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …". This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.
12. The only eligible persons are the four children of the deceased. The husband of the deceased, the father of the four children, Richard William Starr, predeceased the deceased, having died in 2005. Only Susan and Margo now have a claim for a family provision order to be determined. In view of the orders that have been made in Belinda's and Emma's proceedings, the position of each of them, as an eligible person, is no longer relevant.
13. As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.
14. A family provision order may be made in relation to property that is not part of the deceased's estate but is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
15. There is no property that is able, or is sought, to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by each of Susan, and Margo, respectively, neither sought an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased's estate that has been distributed, other than amounts that have been paid on account of the costs of the Defendants, as executors to whom Probate was granted. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.
16. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. In the family provision proceedings, it will be necessary to refer to Margo's interest, and if necessary, Susan's interest, respectively, as a beneficiary, later in these reasons, when the claim by the other for a family provision order is determined.

The Settlement of the claims made by Belinda and Emma

1. On the second day of the hearing, at the request of the parties, I made the following orders and notations in the proceedings brought by Belinda and Emma: "1. Notes the associated proceedings 2019/162571 and 2020/34748. 2. Notes that the parties in the associated proceedings consent to the orders being made in these proceedings. 3. Orders that the whole of the proceedings be dismissed generally with the intention that the Plaintiffs are prevented from bringing fresh proceedings claiming the same relief. 4. Makes no order as to the Plaintiffs' costs to the intent that they will bear their own costs, respectively, of the proceedings. 5. Orders that the Defendants' costs, calculated on the indemnity basis, of the proceedings, be paid or retained, as the case may be, out of the estate of the deceased. 6. Orders that the hearing dates listed on 25 February 2021, 2 - 4 March 2021, 31 March 2021 and 7 April 2021 be vacated."
2. On the fourth day of the hearing, senior counsel for Margo, filed in Court, without any opposition, the affidavit of Heather May Baker, sworn 1 March 2021. Ms Baker is an employed Australian legal practitioner at Campbell Paton Taylor, Margo's solicitors. To that affidavit, was annexed a copy of a Deed of Settlement and Assignment made on 23 February 2021 between Belinda, Emma and the Defendants.
3. Relevantly, by the Deed of Settlement and Assignment, Margo agreed that on or before 28 May 2021, she would pay $350,000 to Belinda, and pay to Emma, $500,000, as directed by the solicitor acting for them, and agreed to deliver to them certain personal items of the deceased and of Richard. For her part, each of Belinda and Emma assigned her interest and entitlements in the deceased's estate, including any benefits, or rights, to which she might be entitled under the 2006 Will and under the 2012 Will to Margo. They also agreed to renounce Probate of the 2006 Will. (There were other terms, but they are not relevant to the Probate proceedings or the family provision proceedings.)
4. In her affidavit, Ms Baker stated that the total amount to be paid to Belinda and Emma had been raised by a contribution of $250,000 from the funds of Margo and her husband, Scott; a sum of $300,000, which had been borrowed from Margo's paternal aunt, Margaret Starr; and a sum of $300,000, which had been borrowed by Margo and Scott from the CBA.
5. Ms Baker also stated: "If the Defendants had been able to reach agreement with the plaintiff as to an amount to be paid to her in settlement of her claims, such amount would have been funded from the balance of the estate funds held in the controlled money account of CPT legal, and the sale of stock of the RW and NL Starr trust."
6. During her oral evidence, Margo confirmed the contents of Ms Baker's affidavit. In answer to a question from the Bench, Margo estimated that the amount that would comprise the proceeds of sale of the stock, referred to in Ms Baker's affidavit, would be about $100,000: Tcpt, 2 March 2021, p 300(16-41).
7. Margo also confirmed that it was not possible for her and Scott to borrow any more money, and that, in order to meet any provision to be made for Susan, Scott's real estate at Manildra may be able to be sold (although she had not discussed this with Scott), or that a property known as "Hylands", to which reference will be made, would need to be sold. Naturally, whether that should occur will depend upon the result of both proceedings.
8. In submissions, senior counsel for Margo suggested that, if necessary, the deceased's one quarter interest in a property known as "Koranui", to which reference shall be made, could be transmitted, in specie, to Susan, in order to satisfy any order for provision made for Susan. For her part, Susan was unlikely to want to take the deceased's interest in that property, in specie, as part of any provision to be made for her.
9. Under s 65(1) of the Act, the Court, amongst other things, must specify "…(b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided", and under s 65(2) may require the provision to be made "… (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property".
10. No reason was advanced why, if provision were made for her, a devise of the deceased's interest, as a co-owner with a third party, in that property, should be made for Susan, as provision, or part of the provision, other than it would avoid Margo having to find a lump sum to satisfy an order for provision.
11. I shall allow the parties an opportunity to consider how any provision to be made should be satisfied, and if possible, reach agreement as to the period within which any order for provision should be satisfied. As the Court may have to deal with the issue of costs, any dispute about the time within which the orders of the Court should be satisfied, and any other disputed matters, can also be determined. Needless to say, the parties should attempt to reach agreement on any outstanding issues in order to avoid further costs being incurred and the administration of the deceased's estate being further delayed.

The Witnesses

1. It will be necessary to examine the evidence bearing upon instructions for, and the execution of, the 2012 Will, with some care. It is important to remember that there is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker's capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.
2. Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined. I shall refer, first, to Susan's witnesses.
3. Susan gave evidence in support of her Probate proceedings and the family provision proceedings. Her partner of many years, Andrew Killingsworth, did not give evidence, although he was present in Court during the proceedings. I shall return to Susan's evidence later in these reasons.
4. Bruce Lyons, a wool-classer, who had known the deceased for about 65 years, and who was an employee of the deceased from 2007 to 2010, made an affidavit on 24 June 2020. In his affidavit, he did not give any evidence of observing any cognitive deficits in the deceased. Rather, he described her, in the period 2007 to 2010, as "a fit, reasonably lean, strong looking woman" who he "observed [was] working like a slave on the farm doing very hard manual work". He was not cross-examined.
5. Dr Mesut Cetiner, a Consultant Psychogeriatrician, swore two affidavits, one on 19 June 2020 and the other on 19 February 2021, shortly before the commencement of the hearing. He is employed as a Senior Visiting Medical Officer, in the Older Persons Mental Health Service, NSW Health, Western NSW Local Health District operating out of Orange Base Hospital. He is also a Senior Staff Specialist in Psychiatry of the Aged, at St George Hospital in Sydney. I shall return to his evidence later in these reasons.
6. Mr Timothy Young, an Australian legal practitioner, and the principal of Young & Muggleton, the solicitors for Susan, gave evidence about the costs of the Probate proceedings and the family provision proceedings. He was not cross-examined.
7. I turn next to Margo's witnesses.
8. Margo gave evidence in both the Probate proceedings and in respect of her family provision claim. Her husband, Scott Miller, did not give evidence, although he was present in Court during the proceedings.
9. Emily Reynolds, who had been employed as a receptionist, by Yates Baker McLean, accountants and business advisers, and who was one of the attesting witnesses of the deceased's signature on the 2012 Will, swore an affidavit on 21 February 2020, which was in the form of what might be described as the usual affidavit of attesting witness. She was not cross-examined.
10. Philip Francis Hodges, a partner at Yates Baker McLean, accountants and business advisers, was the other attesting witness of the deceased's signature on the 2012 Will. He gave evidence by affidavit and he was cross-examined remotely. On 25 February 2021, the Court with the consent of the parties, directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that he, give evidence by telephone link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.
11. Mr Brough, the second Defendant, who had a number of conversations with the deceased, relevantly, in 2012, gave evidence. It is clear that the deceased trusted him. He made full, and detailed, written attendance notes, which set out events with, it would seem, precision and clarity.
12. Mr Stuart, the third Defendant, and the Australian legal practitioner who took instructions for the 2006 Will and the 2012 Will and who drafted each Will, gave evidence. By 2012, he had been in practice for 36 years and, over that time, had drafted a large number of Wills and had held conferences with many clients to discuss testamentary intentions, or in order to provide advice about wills and estate matters generally. He stated that he "was aware of the test for testamentary capacity in Banks v Goodfellow and… was experienced in assessing whether the persons I was asked to prepare Wills for, or to advise, appeared to have testamentary capacity".
13. It could not be, and was not, disputed that, by 2012, he was an experienced solicitor in wills and estates. The deceased had been his longstanding client and of his firm and she was known to him. I am satisfied that the deceased trusted him. He did not have any written diary notes because he had suffered a cardiac arrest in 2008, after which he found writing difficult. On some occasions, he had confirmed his instructions, subsequently, in correspondence addressed to the deceased.
14. Mr Stuart swore an affidavit on 17 March 2020 which was in the form of the usual affidavit of an attesting witness. He was one of the attesting witnesses of the deceased's signature on the 2006 Will. His affidavit was read in Susan's case and he was not cross-examined on that affidavit.
15. (Since 2013, it is only if the court has doubts about the due execution of the will, even where the attestation clause is sufficient, that an affidavit as to due execution will be required, and generally, if a will contains a sufficient attestation clause, it is not necessary to file a separate affidavit of attesting witness. However, as Susan sought a grant of Probate in solemn form of the 2006 Will, she was required to call at least one of the attesting witnesses to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19; Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].)
16. Jacquelyn-Anne Christopherson, a registered nurse, who saw the deceased on one, or two, occasions between November 2011 and October 2012 gave evidence. Ms Christopherson observed the deceased to be anxious when she came to the surgery and to the medical practice. As a nurse, one of her tasks was to talk with the deceased prior to any procedure, to help reduce her anxiety. Ms Christopherson gave evidence that she had spoken with the deceased about her farm, her family and a family friend, Ron Copson, and that she had come to know the deceased reasonably well during these conversations. She was cross-examined remotely.
17. Richard Ivey, an Agricultural Consultant and forensic accountant, gave evidence in a report which "investigates the impact on the viability of the farming operations run by RW & NL Starr Trust… if land available for the Trust were to be reduced from "Arakoon" and "Hylands" to "Arakoon" alone. He, also, was cross-examined remotely.
18. In relation to the cross-examination of Ms Christopherson and Mr Ivey, with the consent of the parties, on 2 March 2021, the Court directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act, that she and he, respectively, give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.
19. Ms Baker swore several costs affidavits, and also the affidavit to which I have referred relating to the settlement of Belinda's and Emma's family provision proceedings. She was not cross-examined.
20. There was no objection taken to statements made by the deceased about which evidence was given. These were admissible, principally to show the knowledge, intention, and mental state of the deceased at the time of the making of the 2012 Will. A number of the statements also described the deceased's view of one, or other, of her children. Those statements were also admissible as original evidence and as evidence of the deceased's state of mind.
21. In making factual findings, I have borne in mind that the principal events took place over 8 years ago and that memories are bound to have become weaker, or less reliable, with the passage of time. In addition, I have allowed for the strong feelings that this type of dispute, undoubtedly, will have engendered, within the deceased's family, and which may have influenced the recollection of events by Susan and Margo.

Documentary evidence

1. In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material, particularly going to the deceased's medical condition.
2. There was also a certain amount of other contemporaneous documentary material produced from Mr Brough and from Mr Stuart that has been relied upon going to events leading to the execution of the 2012 Will. There was no dispute as to the authenticity of any of the documents and indeed, most were tendered without objection.

The deceased

1. Margo gave evidence that the deceased "participated in all activities on the farm and… loved the rural way of life" and that "because of her lifestyle [the deceased] was still in good physical shape at the time of her death".
2. Susan gave evidence that, "rather than loving her life, [the deceased] was depressed for many years and probably from the 1980s when she became the victim of domestic violence at [her husband's] hands".
3. Bearing in mind the evidence as a whole, to some of which I shall refer later, I tend to the view that Margo's view of the deceased as stated above is a more accurate one.

The Wills of the deceased

1. I shall deal with the 2012 Will first.
2. The original grant of Probate dated 15 October 2018 was tendered as Ex D3. Relevantly, the deceased: 1. revoked all prior testamentary dispositions made by the deceased: Clause 1; 2. appointed the three Defendants as executors and trustees of the Will: Clause 2; 3. gave a devise of the deceased's right, title, and interest in the property known as "Arakoon" and the property known as "Hylands", both in Molong (a small town in the Central West region of New South Wales) to Margo absolutely: Clause 3; 4. gave all the deceased's shares in Arakoon Pty Limited, including all shares and loan accounts in that company, to Margo absolutely: Clause 4; 5. gave "any current account that may be due to me from RW & NL Starr Family Trust, the trustee of which is Arakoon Pty Limited", to Margo absolutely: Clause 5; 6. requested that the proceeds of any superannuation fund be paid to her estate, to form part of her residuary estate: Clause 6; 7. gave all items of personal use or ornament including furniture and jewellery to Margo, with the request that "she does distribute to her sisters such items as she may desire": Clause 7; 8. divided the rest of her real and personal property, of whatsoever nature, and wheresoever situated, after payment of debts, funeral and testamentary expenses and all duties payable on the estate, to be divided between Susan, Belinda and Emma, as survived the deceased, and if more than one, as tenants in common in equal shares: Clause 8; and 9. directed that any executor who was a solicitor, or accountant, or engaged in any other profession or business was able to act in a professional or business capacity in relation to the administration of the estate and was entitled to charge and retain all professional and other charges for any business or act done by him or his partner or partners, with nothing in the Will preventing the executors from applying to the Court for commission: Clause 10.
3. It was not suggested that the 2012 Will was wholly irrational, although, as will be read, senior counsel pointed to the fact that Susan was provided for in the same way as were Belinda and Emma, which seemed unusual because her relationship with the deceased was very different from each of them: Tcpt, 3 March 2021, p 344(12-38).
4. The 2006 Will was tendered and marked Ex P1. The attesting witnesses to the 2006 Will were Mr Stuart and Ms Therese Sprenger.
5. Relevantly, the deceased in the 2006 Will: 1. revoked all prior testamentary dispositions made by the deceased: Clause 1; 2. appointed Belinda, Margot (sic), Susan and Emma, to be executors and trustees of the Will: Clause 2; 3. gave her real and personal property, of whatsoever nature, and wheresoever situated, after payment of debts, funeral and testamentary expenses and all duties payable on the estate, upon trust to be divided between such of her daughters as survived, and if more than one as tenants in common in equal shares: Clause 3. 4. stated that it was her "desire" that Emma be given the option to purchase from the estate the land adjoining her property on the western side of the Euchareena Road, known as "Highlands" [sic], such option for purchase to be at market value and such option to be for a period of 12 months following the deceased's death: Clause 4; 5. directed that any executor who was a solicitor, or accountant, or engaged in any other profession or business was able to act in a professional or business capacity in relation to the administration of the estate and was entitled to charge and retain all professional and other charges for any business or act done by him, or his partner or partners, with nothing in the Will preventing the executors from applying to the Court for commission: Clause 6.
6. The earliest Will of the deceased, in time, which was the subject of evidence, was one made by her on 7 December 1973. By that Will, the deceased left the whole of her estate to her husband, Richard, but, in the event that he did not survive her, provided that her estate was to be divided equally amongst her children. (As will be read, only Belinda and Margo had been born when this Will was executed.)
7. In the circumstances of the Probate proceedings, since there is no dispute about the validity of the 2006 Will, if the 2012 Will is not a valid Will, the 1973 is not really relevant in the proceedings other than to demonstrate that the deceased's long held testamentary intention was to provide for her husband if he survived her, and if he did not, to divide her estate between her surviving children.

The estate of the deceased

1. On 2 December 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate and notional estate at the date of death; 2. the assets and liabilities of the estate and notional estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
2. At the hearing, a final version of the document, was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. The deceased left an estate with an agreed value, as at the date of death, of $7,824,653.
4. The parties agreed that the gross value of the deceased's estate, at the date of the hearing, was $8,674,379: Ex. JS 1. The estate was said to comprise: 1. the real estate known as "Arakoon", which comprises almost 507 hectares ($4,600,000); the real estate known as "Hylands", which comprises almost 209 hectares ($2,350,000); and the deceased's one-quarter share of "Koranui", also in Molong, comprising about 93 hectares ($500,000); 2. cash held in the controlled monies account of the Defendants' solicitors ($717,736); 3. cash in the Defendants' solicitors trust account ($1,036); 4. the amount held in RW & NL Starr Family Trust Beneficiary current account ($505,594). The Court was informed, from the Bar table, without objection, that the amount said to be held in RW & NL Starr Family Trust Beneficiary current account is not a cash amount but is "a book entry": Tcpt, 2 March 2021, p 230(10-30); and 5. the shares in Arakoon Pty Limited ($11.00).
5. The Defendants contended that executors' commission and capital gains tax, which would be incurred in selling the real estate, would be at least $1,139,831: Tcpt, 3 March 2021, p 327(18-30). I shall use this amount to reach a net estimated value of the estate (excluding the costs of the proceedings), which is $7,534,548. (Of course, it may not be necessary to incur some of the liabilities, immediately, particularly if "Arakoon" is not sold.)

The Costs of the Proceedings

1. In relation to the probate proceedings, Susan's costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.
2. The balance of the Defendants' costs, calculated on the indemnity basis, of the probate proceedings, were estimated to be $79,400.
3. There is no suggestion that either the Civil Procedure Act 2005 (NSW) or the UCPR do not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about them at this time.
4. The balance of the Defendants' costs, calculated on the indemnity basis, of Belinda's and Emma's family provision proceedings were estimated to be $73,000.
5. In relation to the family provision proceedings, Susan's costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.
6. The balance of the Defendants' costs, calculated on the indemnity basis, of the family provision proceedings, were estimated to be $60,500.
7. In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
8. Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
9. As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]: "In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
10. As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]: "... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
11. I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
12. Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the probate proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.
13. The total of the various costs, including in the case of the Defendants, the balance of their costs, totals $407,900. (The amount of costs referred to as agreed during the hearing was $334,900: Tcpt, 3 March 2021, p 327(06-16). However, that did not include the estimated amount of $73,000, being the balance of the Defendants' costs, calculated on the indemnity basis, of Belinda's and Emma's family provision proceedings.)
14. (In this regard, Ex JS 1 confirmed that $108,039 of the Defendants' costs had been paid out of the estate of the deceased.) It can be seen, therefore that in excess of $515,000 has been incurred in costs of the various proceedings.
15. Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of $7.1 million.
16. Without having undertaken any exercise designed to assess the reasonableness, or otherwise, of the costs and disbursements, I draw to the attention of the practitioners, as officers of the Court, that in Woolf v Snipe (1933) 48 CLR 677 at 678-679; [1933] HCA 5, Dixon J wrote: "The superior Courts of law and equity possess a jurisdiction to ascertain, by taxation, moderation, or fixation, the costs, charges, and disbursements claimed by an attorney or solicitor from his client, and that jurisdiction is derived from three sources and falls under three corresponding heads. First, a jurisdiction exists founded upon the relation to the Court of attorneys and solicitors considered as its officers. This jurisdiction, commonly called the general jurisdiction of the Court, enables it to regulate the charges made for work done by attorneys and solicitors of the Court in that capacity, and to prevent exorbitant demands. That such a jurisdiction was exercised by the Court of Chancery was never doubted. Second, when a contested claim for costs comes before the Court it has jurisdiction to determine by taxation or analogous proceeding the amount of costs. (See In re Park; Cole v. Park…; In re Foss, Bilbrough, Plaskitt & Foss…; Jones & Son v. Whitehouse…) Third, there is a statutory jurisdiction…"

Background Facts

1. As with all probate and family provision disputes, a proper understanding of the events is critical. It is sufficient, for present purposes, to set out what follows as the findings of the Court.
2. The deceased was born in November 1945 and was 66 years old when she executed the 2012 Will.
3. "Arakoon" was purchased by Richard's father on his return from World War I and was acquired by Richard prior to his marriage to the deceased.
4. The deceased married Richard in 1968 and moved onto "Arakoon". It was both the family home, and the source of the family income, sustaining mixed grazing (sheep and cattle) farming operations. The deceased remained living there until about May 2015.
5. In the 1950s, after Richard took over "Arakoon", Richard's father purchased "Hylands" for his wife and three daughters. Richard purchased "Hylands" from his sisters in 1980.
6. "Arakoon" and "Hylands" are farming properties, located about 10km apart, in Molong (about 13 km north of Manildra and 50 km from Orange).
7. As stated, there were four children of the deceased and Richard, namely: 1. Belinda, born in April 1969 and now almost 52 years old; 2. Margo, born in September 1972 and now 48 years old. She is married with no children; 3. Susan, born in August 1976 and now 44 years old. She has three children with Andrew, being Tom, who was born in May 2008, who is 12 years old, Sarah, who was born in October 2010, who is 10 years old, and Lachlan, who was born in December 2012, who is 8 years old; and 4. Emma, born in May 1978 and now 42 years old. She is married to Craig Gordon Buckley.
8. The four children of the deceased and Richard attended a private boarding school (Kinross Wolari School) in Orange. They assisted with the farming operations during their primary and high school years. They worked in the shearing sheds, helped with the marking of lambs, checked on livestock, drafted sheep and cattle, loaded stock trucks and fed livestock during droughts.
9. The RW & NL Starr Trust was established by a Deed of Settlement dated 19 January 1982. All plant, equipment, and stock, for the farming properties were owned by the Trust. Arakoon Pty Ltd was the corporate trustee of the Trust.
10. Each of Margo, and Susan, moved to Sydney after she finished University. (There was no evidence read in these proceedings about Belinda's and Emma's movements (other than evidence going to each of their estrangements from the deceased, as will be read).)
11. Susan returned to Orange for 12 months in 2002, living with her parents and working as a speech pathologist at Orange Community Health Centre. She then spent a year abroad in Dublin, Ireland, working in a hospital. She returned to Sydney to work at Bankstown Hospital and spent six months living with Margo. She then moved in with some friends.
12. Susan met Andrew in about 2000. They moved in to live together in 2006 and have lived together, in a de facto relationship, since then.
13. In 1990, Margo commenced work with Westpac in Sydney. During this time, she maintained a close relationship with her parents and would visit them once a month. Margo worked for Westpac Banking Corporation for 10 years, but in 2001, commenced working for Maersk Line, an international shipping company, in Sydney. She held a responsible middle-level executive position, earning about $72,000 per annum. She spoke to her parents, almost daily, by telephone and visited one weekend a month. She would also take leave every September to assist at shearing time. (These matters are relevant to a proposition advanced by Susan concerning the capacity of the deceased.)
14. In March 2002, the deceased and Richard gave Emma and Craig a 10-acre block of land that had been subdivided from "Hylands" ("Emma's Block"). They finished building their home on that land in November 2003.
15. In about 2002, Emma and her husband found water on Emma's Block. They paid for pipework from their land to Richard's and the deceased's land, which enabled the deceased and Richard to receive water to fill a black tank for stock, via a bore pump. As will be read, certain events occurred relating to the bore pump that caused a serious disagreement between Emma and her husband, on the one hand, and the deceased, on the other (to which I shall return).
16. Richard died, after a very short illness, in April 2005, leaving his entire estate to the deceased. The Inventory of Property of his estate was disclosed as having an estimated value of $1,918,224. There was also joint property that he owned with the deceased ($307,900).
17. Susan, who was, and had been for some time, living in Sydney, returned to her job as a speech therapist, in Sydney, shortly after Richard's funeral.
18. Whilst Emma lived in the area, following Richard's death, she was unable to assist the deceased, as she was busy with her own family and her work.
19. Belinda did not assist the deceased with household tasks and was estranged from her from approximately 2013. The estrangement arose because Belinda stopped visiting the deceased and the deceased did not like the way Belinda spoke to her: Tcpt, 2 March 2021, p 275(18-30).
20. Despite some of her daughters, particularly Belinda, urging her to leave "Arakoon", the deceased decided, firstly, that she wanted to continue to live there and, secondly, that she wished to continue to work it as a farm. The farm had always been operated as a two-person venture, and she knew that she would have to employ an additional person if she were to be able to operate it successfully. At the time of Richard's death, none of the farm work had been done with external help. All work had been completed by the deceased and Richard, with the occasional assistance from Margo and Emma.
21. In about July 2005, Margo moved from Sydney to "Arakoon", to live with the deceased. Initially, it was not intended to be a permanent return, but she stayed living on "Arakoon" on a full-time basis, until February 2011 (when she moved into Scott's home in Manildra). Her income dropped to $20,000 per annum, until 2012, and then increased to $40,000.
22. From July 2013, Scott commenced paid employment on "Arakoon".
23. Margo married Scott in September 2013.
24. Mr Copson, who had been a close friend of the deceased, died in June 2014. Margo, Susan, Belinda and Emma, each received a pecuniary legacy of $216,000 from his estate.
25. In May 2015, Margo arranged for the deceased to have a two week respite at an aged care facility in Eugowra. Shortly afterwards, a bed became available at UPA Prunus Lodge, Molong, a residential aged-care facility. On 22 May 2015, the deceased moved into that facility.
26. In July 2015, Margo and Scott moved back to "Arakoon" and have continued to live and work there.
27. At the time of the deceased's death, it appears that the deceased was estranged from both Belinda and Emma.

The Evidence

1. The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come which inform my findings of fact. Before turning to those facts, it is necessary to refer to some general principles which should be remembered.
2. In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that: "... the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation."
3. His Honour's observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt [2014] NSWCA 47 at [56].
4. I also refer to Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch), at [49] - [50]: "When assessing the reliability of the six witnesses seen and heard, I have in mind the researches and findings of the cognitive psychologist and expert on human memory Dr Elizabeth Loftus, and the criminal psychologist and researcher at University College London, Dr Julia Shaw. Human memory is not stable. It has a strong propensity to change over time, to provide false accounts and be susceptible to suggestion. In short, memory is malleable. A confident witness may be mistaken. Contemporary documents may provide a valuable guide to the truth: Armagas Ltd v Mundogas S.A. [1985] 1 Lloyd's Rep.1, at page 57 col. 1; Goodman v Faber Prest Steel [2013] EWCA Civ 153. In Gestmin SGPS S.A. v Credit Suisse (UK) Limited, Credit Suisse Securities (Europe) Limited [2013] EWHC 3560 (Comm) Leggatt J (as he was) explained that the litigation process itself may lead to a witness's memory of events being based on documents and later interpretation rather than the original experience; all remembering of distant events involves reconstructive processes: '[18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been 'refreshed' by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.' Leggatt J set out the best approach to evidence [22]: "[T]he best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose - though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth."
5. (Although there is a reference to "a commercial case", the propositions which were stated are relevant to most cases, including Probate cases.)
6. Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249, at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply "emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed": Kogan v Martin [2019] EWCA Civ 1645.
7. I also refer to what was written in Sangha v Baxter [2009] NSWCA 78, by Basten JA (with whom Handley AJA agreed), at [155]-[156]: "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44]."
8. Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964, per Kunc J, at [467].
9. Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating: "An important matter which may arise in these kinds of cases is the difficulty of assessing evidence concerning things allegedly said by a person who is dead. The court can never be certain it knows all the circumstances, and more often than not one may be sure that the court knows few of them. It is impossible to hear what the other party to the conversation, the deceased, says about it. There is a significant risk of reconstruction. There are dangers in relying on evidence of what may have been a casual observation made to a person who at the time had no reason to remember the exact words used. In the light of these concerns, a substantial burden is placed upon an applicant whose case relies upon such evidence. Such evidence must be very carefully examined."
10. I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)."
11. I shall make findings of fact based upon all of the evidence and shall identify, where necessary, if the sworn evidence of a witness is not accepted, although it will not be possible to include everything in these reasons.

Dispute between the deceased and Emma regarding the water pump

1. In late March 2012, Mr Stuart met with the deceased and Margo to discuss a dispute that had arisen, between the deceased, on the one hand, and Emma and her husband, Craig, on the other, regarding a bore pump that supplied water to part of the deceased's property. It appears that the deceased had discovered that Emma had cut off the water supply to certain troughs on part of the 200 acres of "Hylands", which adjoined Emma's property. Apparently, this had been done several weeks earlier after a disagreement as to who should pay for the electricity to the pump which pumped water from the bore along the pipe.
2. Susan confirmed in her affidavit made on 24 June 2020, that the deceased "repeatedly told me that my sister Emma had put the survival of 200 sheep at risk by cutting off the water to them".
3. In cross-examination, Mr Stuart stated that he believed Margo had spoken to him about this dispute from time to time: Tcpt, 25 February 2021, p 151(08-09).
4. On 2 April 2012, Mr Stuart sent the deceased a copy of a draft letter that he wished to send to Emma and Craig on her behalf.
5. The letter included the following: "We act for Mrs Nancy Starr and are instructed that you own land adjoining our client's property. We are instructed that you have "cut off" our client's water supply which is used to water stock on both sides of the Euchareena Road. We are instructed that the water is pumped from a bore on our client's property to a tank which is situated inside our client's property and that the bore is electric and works from a power pole within your property. We are instructed that the bore also provides water to you through the tank situated on our client's land. Our client regards your action as being totally unwarranted and does not understand why you wish to act in this manner. We note that your continued use of the water from the bore and tank (both situated on our client's property) continues although there is no easement entitling you to the water. In an effort to resolve this matter, our client is prepared to continue with the present arrangement however requires it to be formalised by way of an easement over your land in favour of our client for the supply of electricity and also the supply of water over an existing pipeline. In return, our client will grant you an easement for the supply of water. Failing an agreement being reached in this regard, our client will disconnect the water supply to your property and make alternate arrangements for the line of pipes presently passing through your property and will take whatever action is necessary to disconnect the power from your property to the bore. This will result in a complete severance between you and our client. Would you please advise within seven business days of your attitude towards the proposed resolution to the matter."
6. Subsequently, Mr Stuart received a telephone call from the deceased instructing him to send the letter, which he did on 10 April 2012.
7. (This evidence, which was not the subject of any challenge, demonstrates that the deceased appears to have read, and understood, the contents of the letter and that she had also understood that before the letter would be sent, she was required to provide instructions to Mr Stuart to send it.)
8. On 13 April 2012, Mr Stuart had a telephone conversation with Craig. Mr Stuart's note of the conversation includes the following: "I had a call from Craig Buckley. The reason why they cut off the water was because Nancy would not contribute towards the cost of electricity and maintenance of the electricity. They are happy to keep the arrangement but require something for electricity say $250.00 per quarter and a lump sum for the past. They will come back to us in this regard. Also the tank that is in Nancy's land belongs to them. Happy to continue the arrangement. Easement?"
9. On 17 April 2012, Mr Stuart wrote a letter to the deceased, which included: "We refer to our telephone conversation regarding this matter and now enclose a copy of the final letter that we sent on 10 April 2012, together with a copy of the reply that we have received dated 16 April 2012. Would you please consider the terms of the reply and let us have your further instructions."
10. Mr Stuart stated that he had been unable to find a copy of the letter dated 16 April 2012, referred to above. However, Margo produced a copy in evidence: Affidavit, Margo Anne Miller, 1 December 2020 at Annexure C. The letter included a timeline of events surrounding the dispute and included the following (with minor spelling and grammar corrections): "As we are sure you are aware, the price of electricity has gone up since 1 July 2011 and it will be going up again on 1 July 2012. We are no longer prepared to pay for the watering of your client's stock when we receive no benefit from this. It would appear as per our facts on the bore above that your client has not advised you of the full story such as the ownership of the black tank, bore shed, pump frame, etc and who has been paying for the electricity. Your client advised Emma that she does not use the bore so why is she now telling you that she doesn't understand why we have acted in this manner when she doesn't use it. We are prepared to reconnect the two troughs but believe that we should be compensated for the electricity that we have paid since the electric pump was connected to the date that we disconnected the troughs which totals $4,708.14 (this amount has been apportioned for each billing cycle where it was connected and the troughs disconnected) and half of the last maintenance bill $223.85. Total amount requested $4,931.99. From the date the two troughs are reconnected your client is to pay us $250.00 a quarter (apportioned from reconnection date of the two troughs) towards the cost of electricity and if the cost of electricity goes up then so will this amount. The first increase will be 1 July 2012 when electricity is going up by 17.6 percent. If your client wants to connect anymore troughs it will be $125.00 extra per trough per quarter and we are to be notified in writing that another trough will be added and where it will be located and if we are not notified two weeks prior to the installation of any additional troughs the water will be disconnected until we receive notification. This amount is to be paid whether your client has stock watering on the troughs or not as evaporation will cause the troughs to keep filling up. Any maintenance bills are to be split 50/50. We are to be granted access to the black tank and bore pump to enable us to make sure that the pump is working correctly and to rule out whether we are able to fix the problem ourselves before needing to contact someone to fix it. If your client does not agree to this arrangement, we will remove our black tank, the shed housing the pump, the frame the pump is on and the black trough that is located on the bottom side. If your client does agree to this arrangement, then we will forward to her each quarter an invoice for the said amount which is to be paid within 4 days from the date of the invoice. If your client fails to pay this within that time frame the water to the troughs will be cut off until this amount has been paid. Your client or anyone associated with her is not to access our land at any time if there is an issue with the pump then she is to contact us in writing advising of the issue and we will check the pump and if need be make arrangements to have it fixed and we will do likewise. This last request is being made as it took your client two months to realise that the water had been cut off to the two troughs. Would you please advise us within seven business days from the date of this letter as to your client's response."
11. Mr Stuart met with the deceased on 19 April 2012. She instructed him to reject Emma's and Craig's proposal, and, on her instructions, Mr Stuart sent a letter dated 23 April 2012 to Emma and Craig which included: "We refer to your letter of 16 April 2012. Our instructions are that the suggested arrangement is not acceptable to our client."
12. Shortly thereafter, Mr Stuart received a telephone call from Craig. He wrote a letter to the deceased on 30 April 2012, which included: "We refer to our meeting of 19 April 2012 and, for your information, enclose a copy of the letter that we sent to Mr & Mrs Buckley dated 23 April 2012. We have since had a conversation with Mr Buckley and he asked the question why you did not accept their offer. The writer replied that you did not want to. When asked what he and his wife wanted he said that they wanted you to contribute to the ongoing cost of the electricity. When asked whether or not he would insist on reimbursement of the amount requested in his letter ($4,931.99) he said no they would waive that. The writer suggested that the manner in which the matter should be resolved is as set out in our original letter, in other words the creation of a formal easement. He indicated that he did not want to incur the expense survey, etc, and that unless some agreement could be reached then he would remove the black tank, the shed housing the pump, the frame for the pump and disconnect the electricity. Obviously, the ideal resolution would be to formally create the easements but Mr Buckley did not appear to understand the full effect of creating the easements. We suggest that to resolve the matter that you agree to pay some of the costs of the electricity but probably not as much as requested by him in his letter of 16 April 2012."
13. On 7 May 2012, Mr Stuart met with the deceased again and she instructed him that she would not pay any money to Emma and Craig.
14. On 8 May, Mr Stuart sent a letter to the deceased, which included: "We refer to our meeting of 7 May 2012 and now enclose a copy of a letter that we propose to send to Craig and Emma. We would like the arrival of the letter to coincide with your instruction to have the pump removed and, in this regard, would you please contact the writer so that we might coordinate the two happening together."
15. The draft letter to Emma and Craig, referred to above, included the following: "We refer to our recent discussion regarding the use of the bore on our client's property. Our client is not prepared to make any contribution towards the electricity and that the present arrangements therefore cannot continue. Our client accepts your ownership of the black tank, the shed housing the pump, the black trough and the frame the pump is on and agrees to their removal. Such removal should be undertaken with reasonable notice being given to our client and any disturbance caused is to be rectified by you at your expense."
16. It is not entirely clear whether the draft letter was sent, but the dispute does not appear to have proceeded further.
17. In cross-examination, Mr Stuart accepted that the deceased was "simply uncompromising on this topic [of the dispute]" and rejected his advice to compromise or resolve the matter by some financial recompense without giving any reason: Tcpt, 25 February 2021, p 152(46)-153(19). Rather than being a matter which assists Susan, in my view, it demonstrates the deceased's uncompromising approach and depicts the strength of her conviction concerning the events that had occurred and the conduct of Emma and Craig.
18. Importantly, it was not suggested that the deceased had not understood the matters in dispute, or that she had not understood the advice given to her by Mr Stuart. It seems that Mr Stuart was content to follow the specific instructions given to him by the deceased. It was not put to him that he should not have done so because the deceased did not have the capacity to provide instructions, or that the instructions that she had provided demonstrated a lack of capacity to understand the consequences of those instructions.

The instructions for, and the execution of, the 2012 Will

1. In February 2012, Mr Brough received a telephone call from the deceased asking if he would come with her to "support [her] with drafting a new Will". He agreed to do so. In cross-examination, Mr Brough stated that the deceased told him, during the telephone call, that she had been diagnosed with early-stage dementia: Tcpt, 25 February 2021, p 187(26-34).
2. It was not put to Mr Brough that the conversation had not occurred in the terms that he had repeated. In my view, the telephone call with Mr Brough demonstrates that the deceased, at the time, understood the significance of what she was about to do, the importance, to her, of being able to achieve it, and the insight that she had in seeking assistance from a trusted adviser, in that regard.
3. Mr Brough met with the deceased and Margo at about 10:00 a.m. on 6 February 2012. Margo handed Mr Brough a piece of paper on which she had written out a list of the deceased's assets and some questions that the deceased wished to ask. Mr Brough recalls that both the deceased and Margo discussed the assets referred to with him: Tcpt, 25 February 2021, p 185(23-25).
4. In cross-examination, Margo confirmed that, at the request of the deceased, she had prepared this list of the deceased's assets from her own analysis of the deceased's documents: Tcpt, 25 February 2021, p 209(25-34). When asked if the reason she had not consulted the deceased about the list was because she knew the deceased could not remember the details of her assets, Margo stated (at Tcpt, 25 February 2021, p 210(49)-211(10)): "I don't think [the deceased] would have known the figures. She would have known she had something, but it wasn't important to her."
5. Mr Brough wrote notes whilst speaking with the deceased and Margo, which included the following statements: "Keep farm going Margo to have it Keep viable size so prefer not to split 200 ac of Hyland to Emma Emma happy to let it go … Margo continue as POA Guardian Existing executors 4 girls - now Margo, BFS, DPB BFS cautioned against trf land now [Illegible] Margo's land 3 yrs from trf can still be challenged in Will"
6. Mr Brough also recalled the following conversation: "Nancy: 'I have thought about giving the 200 acre block to Emma but that is not what Dick wanted. He wanted to the farm to stay a viable area' Margo: 'I am happy not to have it if that keeps the peace. I am happy to avoid the present problems we having using her gateway during the harvest. Remember the major drama one year' Nancy: 'No Margo. I want the farm to stay at its present size'."
7. Mr Brough also recalled the deceased making the following statements during the meeting: 1. "I want to keep the farm going. Margo is to have it. We need to keep it a viable size so I'd prefer not to split 200 acres off Highlands [sic] to give to Emma. Emma is happy to let it go"; 2. "I want the assets that aren't part of the farm to go to the other three; the super the cash and my share of Koranui"; and 3. "I want Margo to get the trust assets and continue to run the farm. It was Dick's wish that the farm continue so that meant the land and the stock and plant and other assets of the Trust must stay under Margo's control".
8. (The reference to Emma being "happy to let it go" appears to be a typographical error and should refer to Margo "being happy to let it go".)
9. These statements show a clear exposition of the deceased's testamentary intentions. It also demonstrates some knowledge of the property of which she was disposing in her Will. In the circumstances, as they then existed, they also appear to demonstrate a rational consideration of the competing claims on her bounty.
10. During the meeting, Mr Brough told the deceased that a Will was not beyond challenge and he raised the possibility of a transfer of the farm to Margo whilst the deceased was alive.
11. Later the same day, Mr Brough made a more detailed note of this meeting, which included the following: "Nancy's wishes Wants farm to continue & Margo to operate it & end up with the land … 200 acres on Western side i.e. top block could be left to Emma but it would be contrary to Dick's notion that they needed the area to remain viable farm. Margo happy not to have it to keep the peace & avoid the present problems using Emma's gateway to access for harvest - major drama one year. Nancy says she wants farm to stay at present size. We later discussed if in fact it could be split off + separate title given 200 acres, perhaps not? Difficult relations with 2 of her daughters (presumably Emma & Susan). So Nancy agreed when I said a challenge to her Will is not out of the question. I mentioned uncertainty of a Will & to achieve greater certainty requires transferring assets while alive & have capacity. S/Duty on farm not a problem if trf under intergenerational provision for ongoing farming use. BFS to advise further. … Nancy wants Margo to get trust assets to continue to run the farm. I explained Shares in Trustee. I explained to Nancy, this is her plan. Not mine nor Margo nor Brad. "She designs the house & our job is to construct it following her instructions". Old Will left everything between girls or those that survived her as BFS read out. Nancy intends to change that."
12. Immediately after the conference, Mr Brough and the deceased attended a conference with Mr Stuart, which conference Mr Bough arranged. On the way, Mr Brough repeated: "This is about your plan. It is about what you want. It's not about what Margo wants or what Brad wants. We can help you to put things in place to accomplish what you want. It is like you are designing the house and it is our job to construct it".
13. Mr Brough also made notes of the conference with the deceased and Mr Stuart, which included the following: "Nancy asked me to explain our discussion points to BFS. She is not good at these things. … Nancy asked if BFS and DPB would be co-executors with Margo - Yes. Margo to continue as sole P of A & Guardian - reminded Nancy what this means - can't sell assets under normal circumstances. Risks - if transfer land & Arakoon shares now then all rests with Margo. Could kick you out. Marital breakdown ½ goes to boyfriend/husband. External influences. Done to prevent challenge to Will. BFS says still can be challenged up to three years. Even mortgage from Margo would be part of estate and subject to challenge under the Will. Leave in Will & risk it being overturned by Courts. Margo may have to buy out the others to stay on the farm. Greater security during Nancy's lifetime. Brad to put in writing the options - risks - consequences and Nancy to decide on timing. Brad What about sale of land in exchange for agreement - right to occupy. Life interest - DSS consideration. BFS says life interests have a value so he prefers a residency agreement. Nancy - does she have any P of A or guardianship? What happens to them Executorship Copson - family friends these lapse on her losing capacity. He will work it into his letter as issue to be considered under the circumstances. Phil Hodges will sort it out with his client. Guardianship is the key."
14. During the meeting, Mr Stuart read through the deceased's 2006 Will and asked "Who do you want to have as your executors? At the moment, you have all four daughters." The deceased replied: "I want to change that. Will you be one of my executors? I've asked Margo and David to be executors too". Mr Stuart agreed to do so.
15. Mr Brough notes that Mr Stuart then showed the deceased her existing Enduring Power of Attorney and Appointment of Enduring Guardian. He said "You have appointed Margo. Do you want to change this?". The deceased said "No".
16. Although Mr Stuart accepted that he had reminded the deceased of what a Power of Attorney and Guardianship was, it was not Mr Brough's recollection that the deceased said something which indicated that she needed reminding, but rather "it was Mr Stuart being thorough in his advice": Tcpt, 25 February 2021, p 185(07-10).
17. Mr Brough recalled that during the conference, the deceased repeated: "I want Margo to continue to farm. She has helped me a lot since Dick died. The off-farm assets can be divided between the others".
18. Mr Stuart also recalled the deceased saying: "I want Margo to get the farm. She is my right hand man. She does everything for me. The other girls can share everything else."
19. Mr Brough told Mr Stuart that he had raised the possibility of a transfer of the farms to Margo during the deceased's lifetime and that Mr Stuart had counselled her against this, saying: "I would be cautious about that. It places control of the land and trust in Margo's hands. She could kick you off the land if she chose. Also, in the event of a relationship breakdown half of the farm could go to Margo's partner. The transfer of the land can be challenged if it takes place within 3 years of your death. I will write to you and set out the options and risks so that you can decide what to do before you finalise your Will".
20. Mr Brough was cross-examined. I found his answers to be precise and his evidence to the point. It was not suggested that he had any axe to grind. I thought he brought a professional, independent, eye to the events that had occurred. I accept what he has written and said without reservation.
21. Mr Stuart was cross-examined extensively about his knowledge of the deceased's capacity at the time of the conference. I found some of his evidence to be inconsistent, but this, it seemed to me, was caused by the passage of time that had passed since the events that occurred. The contemporaneous records that he produced supported the broad thrust of his evidence.
22. Mr Stuart confirmed that it was Mr Brough who had telephoned to organise the conference with the deceased and that Mr Brough had expressed a concern that the deceased "was in the early stages of dementia": Tcpt, 25 February 2021, p 135(11-25).
23. He stated that he had discussed with her, "her ability to make a will, what a will was… that she understood the will and what her… assets were": Tcpt, 25 February 2021, p 135(42-49). However, he could not remember anything about the conference "in great detail": Tcpt, 25 February 2021, p 136(13-15).
24. In addition, Mr Stuart accepted that it was, in fact, Mr Brough who told him what the deceased's assets were and their approximate value: Tcpt, 25 February 2021, p 137(47-49) & p 138(16-18). Despite this, he maintained that "[the deceased] had a reasonable understanding of the assets": Tcpt, 25 February 2021, p 147(20-22).
25. According to Mr Stuart, from his discussions with the deceased, he was satisfied that she understood what a Will was; that she had a reasonable understanding of the assets she would be disposing of by her Will; that she knew who would have a claim on her testamentary bounty; and that she was able to weigh up the relative 'entitlements' of each such person.
26. Mr Stuart recalled that Mr Brough, during the meeting, asked whether the deceased could transfer the land to Margo during her lifetime by way of an intergenerational farm transfer. Mr Stuart recalls that some time was spent discussing the benefits and costs of doing so. Mr Stuart considered that this discussion confirmed the deceased's desire to ensure Margo received the farm.
27. Mr Stuart accepted that he did not know whether the deceased intended to make an inter vivos transfer to Margo, and that it was merely "a suggestion that [he] made": Tcpt, 25 February 2021, p 146(22-27). He understood the deceased to be uncertain about the matter: Tcpt, 25 February 2021, p 147(03-15).
28. After the conference with Mr Stuart, Mr Brough made a note in the following terms: "No sign of Alzheimer's apparent at meeting. Should this be noted. Not sharp on dates and amounts but this has never been Nancy's role."
29. Mr Brough was not challenged on the contents of the note. Nor was it suggested to him that what had been written about the deceased's "role" was inconsistent with what had occurred previously in her life.
30. Mr Stuart did not make a contemporaneous note of discussions during this meeting. He stated that his usual practise was to dictate a letter to the client shortly after meeting, to serve as a record of the instructions taken, and the advice given, as well as to provide a report to the client.
31. Mr Brough wrote an email to Mr Stuart on 6 February 2012 concerning the tax implications affecting the relative values of the farm and the off-farm assets. The email included the statement that "Nancy indicated she was not aiming for equality amongst the daughters and specifically recognised the contribution by Margo since Dick died".
32. On 21 February 2012, Mr Stuart dictated, and subsequently sent, a letter to the deceased. The contents included a summary of the deceased's "Present Position" and went on (with editorial corrections): "YOUR EXISTING WILL 1. Your Will was made on 29 May 2006. 2. Pursuant to your Will you appointed the four girls to be the executors and they are the sole beneficiaries. You expressed a desire that your daughter, Emma, be given the option to purchase the land adjoining her property on the western side of Euchareena Road, known as "Hylands". AVAILABLE ALTERNATES 1. Do nothing, in which case your daughter, Margo, would not be rewarded for all her efforts since the death of your husband. 2. Transfer the properties to Margo pursuant to the intergenerational transfer of property which would not attract stamp duty. 3. Enter into a Lease for an indefinite period of time to enable you to remain in your house on the property. 4. The money owing to you by the Trust to be forgiven. 5. Should you die within three years of the date of making these gifts then the assets can be bought back into your estate as being classified as "notional assets". Should you live for more than three years after the date of the gift, then the assets cannot be "clawed" back into your estate and be available to meet any claim that may be made. YOUR PROPOSED NEW WILL 1. We note that it is proposed that the executors be the writer, David Brough and your daughter, Margo. 2. Margo would receive all your right, title and interest to all shares and loan accounts in Arakoon Pty Ltd and any beneficiary account in the Trust. 3. All remaining assets (your cash assets, together with the interest in the property "Koranui") would pass to such of your daughters as you would prefer and we presume this would be the three remaining daughters, Belinda, Susan and Emma. In which case each would receive approximately $500,000.00. DISADVANTAGES OF THE PROPOSAL Should you adopt the above then the disadvantages of the proposal would be as follows: 1. That [if] you die within three years of the date of death (sic)(transfer) which would mean that any of the three daughters could bring an action seeking provision. 2. Margo might predecease you and unless she leaves a Will in your favour then your future may be jeopardised. 3. Margo might become subjected to influences by third parties, in which case she may seek to liquidate the assets that you have given her. 4. It may be that you have to rely on your cash assets to provide for your future benefit, such as retirement villages, etc. We look forward to discussing the matter generally with you in due course."
33. This document, which is almost contemporaneous with the giving of instructions by the deceased, is the best guide to the event that had occurred and what had been discussed. The letter disclosed that the discussions had included the size of the deceased's estate, the changes to the identity of the executors of the Will, the changes to the distribution of the deceased's estate and the reasons for the distribution, and as an alternative scenario, an inter vivos transfer of the real property to Margo.
34. In cross-examination, Mr Stuart was asked about the words "we presume this would be the three remaining daughters. In which case each would receive approximately $500,000.00". Whilst Mr Stuart accepted that the word "presume" indicated there was some doubt in his mind, when he wrote this letter, as to the deceased's intentions about which of her daughters were to receive the remaining assets, it seems to me that the letter is clear and is consistent with the discussion which the deceased had with Mr Brough: Tcpt, 25 February 2021, p 145(43-46).
35. Mr Stuart also accepted that the $500,000 figure was incorrect, based on the value of the deceased's assets: Tcpt, 25 February 2021, p 145(15-16). Mr Stuart accepted that the value of the deceased's cash assets was $912,000 and stated that he understood her share of "Koranui" to be worth $200,000: Tcpt, 25 February 201, p 145(05-28). On these figures, each of Susan, Belinda and Emma would receive approximately $370,000, rather than $500,000.
36. (Senior counsel for Susan and Mr Stuart, did not seem to recollect the letter dated 21 February 2012, sent to the deceased, in which Mr Stuart had set out the deceased's "Present Position", which had included "a quarter share in… Karanui [sic] … worth $100,000", and "off farm assets of superannuation of approximately $900,000 and cash of $500,000". Of course, those estimates, if accurate, established that each of the three residuary beneficiaries would receive about $500,000.)
37. On 2 April 2012, Mr Stuart sent a letter to Dr Guerin (who was the general medical practitioner who had treated the deceased since about September 2000) which included the following words: "We act for Mrs Starr and understand that you are her attending Medical Practitioner. We understand that Mrs Starr is in early stages of dementia and we have prepared and have executed a Power of Attorney and Appointment of Enduring Guardian for her. We are now instructed to assist her in her estate planning and to redo her Will. Part of the estate plan is that she will transfer the whole of her farming and grazing property at Molong to her daughter, Margo. The purpose of this letter is to establish whether or not you consider that she has sufficient capacity to understand the effect of: 1. entering into a new Will; and 2. transferring her interest in the property to her daughter. We look forward to hearing your opinion shortly, as we consider the matter is somewhat pressing."
38. In cross-examination, Mr Stuart accepted, that at the time he wrote this letter, his understanding was the deceased was going to do an intergenerational transfer of the land to Margo, but she had given no reasons for this decision: Tcpt, 25 February 2021, p 150(01-23).
39. In about April 2012, during the time of the dispute with Emma and Craig, the deceased said to Margo: "Mr Stuart advised me to leave Emma in my will. She will have grounds to contest the will if she is left nothing. I will leave it as [is]": Affidavit, Margo Anne Miller, 1 December 2020 at par 7.
40. Mr Stuart also stated that, when he wrote this letter, he thought there was a potential loss of capacity: Tcpt, 25 February 2021, p 148(37-46). However, the letter makes clear that he had been informed, by Mr Brough, of what the deceased had said, and seeking confirmation from a medical practitioner demonstrates his experience, as well as the care that he was taking to ensure that the deceased had capacity from a medical point of view: see, for example, the publication of The Law Society of NSW, entitled "When a Client's Capacity is in Doubt - A Practical Guide for Solicitors", which provides: "It is not the role of a solicitor to be an expert in mental capacity assessment of their client. However, a solicitor can be involved in carrying out a "legal" assessment of their client's mental capacity which involves: • Making an preliminary assessment of mental capacity - looking for warning signs or 'red flags' using basic questioning and observation of the client. • If doubts arise, seeking a clinical consultation or formal evaluation of the client's mental capacity by a clinician with expertise in cognitive capacity assessment. • Making a final legal judgment about mental capacity for the particular decision or transaction."
41. Mr Stuart received a letter from Dr Guerin dated 7 May 2012, which simply stated: "It is my understanding that, at this time, Nancy understands the implications of her will." The letter was admitted over objection, not as proof of the truth, but as relevant evidence of an experienced solicitor making inquiries of a medical practitioner.
42. I acknowledge that the letter from Dr Guerin is of limited weight in these proceedings: Tcpt, 23 February 2021, p 48(21) and I do not rely upon it, other than as a response, which does not specifically identify any diagnosis that would have raised a red flag about the deceased's capacity.
43. Having said that, in light of the evidence of Mr Brough and Mr Stuart, it is difficult to conclude, other than that the deceased, when giving instructions to each of them, had sufficient capacity to understand the effect of entering into a new Will and also of transferring her interest in the land to Margo. As will be read, there is also other evidence which supports this conclusion.
44. On 8 May 2012, Mr Stuart wrote another letter to the deceased which included: "We have… received a letter from Dr Guerin and a copy of the same is also enclosed. We are ready to see you so that the Land can be transferred to Margot [sic] and your new will executed".
45. In cross-examination, Mr Stuart stated that, at this point, it was "probably" still his understanding that it was the deceased's intention to make an inter vivos transaction to Margo: Tcpt, 25 February 2021, p 146(44)-147(01). However, later, he recalls that the deceased changed her mind. He was unable to recall how the deceased communicated her changed instructions: Tcpt, 25 February 2021, p 153(21-31).
46. That the deceased, ultimately, did not choose to make an intergenerational transfer suggests that she had the capacity to reflect upon the advice that she had been given about the disadvantages of doing so and, having done so, to reject the concept.
47. Shortly thereafter, Mr Stuart received a telephone call from the deceased, during which she said: "I want you, David and Margo to be executors. I want to leave the properties to Margo. Margo is to receive all shares in the Arakoon and the loan account. Everything else is to go Belinda, Susan and Emma."
48. Bearing in mind the request made in the letter dated 2 April 2012, for the deceased's "opinion", the deceased's response confirmed her earlier instructions.
49. Mr Stuart stated that he also asked the deceased about the intergenerational farm transfer which they had discussed, but "she was reluctant to transfer the land during her lifetime". In cross-examination, he accepted that the word "reluctant" indicated that the deceased was uncertain about whether the transaction would be inter vivos or by her will: Tcpt, 25 February 2021, p 157(07-10). Whilst I consider that the suggestion put to him was a rather strained interpretation of his statement, its meaning was clarified later when he said "I think she was certain at the time of the conversation": Tcpt, 25 February 2021, p 157(20).
50. Mr Stuart did not make a file note or write to the deceased to confirm her instructions: Tcpt, 25 February 2021, p 157(22-24). When asked why he did not do so, he stated "I could not write my own file notes": Tcpt, 25 February 2021, p 157(39). However, he accepted that he could have dictated a file note or letter, as was his usual practice at the time: Tcpt, 25 February 2021, p 157(41-50).
51. On 8 May 2012, the deceased telephoned Mr Stuart and confirmed her instructions for the new Will.
52. Mr Stuart stated that, after his telephone call with the deceased, he drafted a Will based on the deceased's instructions at the meeting on 6 February 2012. No evidence was given going to the exact date that Mr Stuart drafted the Will. I infer, from this, that at the time he did so, he was satisfied of the deceased's then testamentary intentions, at least, sufficiently to enable him to draft a Will.
53. In cross-examination, Mr Stuart stated that he had other conversations with the deceased regarding the Will and the transfer of the lands between 8 May and 16 July 2012. However, he was unable to recall the substance of what was said on those occasions: Tcpt, 25 February 2021, p 156(34-46).
54. On the afternoon of 16 July 2012, the deceased attended Mr Stuart's office at Molong. He told her that he was recording their conversation and proceeded to record the meeting on his dictaphone. Following the conclusion of his conference with the deceased, Mr Stuart took the cassette tape from the dictaphone back to his office at Orange and asked his secretary to transcribe it. He read the transcript and confirmed that it matched his recollection. As was the practice in his office, the cassette tape was then used for other dictation and the recording of the meeting was taped over. Unsurprisingly, but unfortunately, the recording was not available to be played at the hearing.
55. In cross-examination, Mr Stuart accepted that, before commencing to record what was to occur, there had been some discussion with the deceased (which was not otherwise recorded or transcribed): Tcpt, 25 February 2021, p 161(07-09). He could not recall how long the discussion had been, or what was said during it: Tcpt, 25 February 2021, p 161(34-39).
56. When pressed, Mr Stuart thought he would have said words to the effect of "You're here to sign a will" and the deceased would have responded "I want to sign it": Tcpt, 25 February 2021, p 162(45)-163(14).
57. I am not sure that there is any significance of what was not recorded (which must, at best, be speculation bearing in mind the passage of time that has passed). Far more important, it seems to me, is what was recorded, and transcribed, as follows: "BFS: Nancy, what is your full name? Nancy: Nancy Louise Starr. BFS: What's your date of birth? Nancy: 15th of November '45. BFS: Do you have children? Nancy: Yes. BFS: What children do you have? Nancy: Four children. BFS: And what are their names? Nancy: Belinda, Margo, Susan and Emma. BFS: And how many children do they each have? Nancy: Belinda's got three, Margo hasn't got any and then umm Susan has a boy and a girl and Emma has a boy and a girl. BFS: And what are you here for today Nancy? Nancy: I've come here today to have my Will done. BFS: What is a Will? Nancy: I think it's when you die and you've got a piece of paper to say what you wanted on it. Is that right? BFS: What properties do you own? Nancy: "Arakoon" and "Hylands". BFS: "Arakoon" and "Hylands"? Nancy: "Arakoon" and "Hylands" but it is partly owned by Emma. BFS: Emma owns what? Nancy: A block of land there on "Hylands". BFS: When does a Will come into effect? Nancy: When you're dead. BFS: So what other property do you own? Do you own any Bank money? Any money in the Bank, any stock? Nancy: Yes I have money in the Bank and cattle and sheep. BFS: So who owns the cattle and sheep? Nancy: Arakoon. BFS: Arakoon owns what? Nancy: As the Family Trust. BFS: So what do you want to do in your Will Nancy? Nancy: I'd like to leave umm, leave it to Margo the "Arakoon" part of it. BFS: And "Hylands"? Nancy: "Hylands" yes because as I say you can't, you need more country, you haven't got enough. BFS: And what do want to do with all the stock and the current accounts owing to you by Arakoon as Trustee? Nancy: Well I think Margo can take all that back on. BFS: Why do you want Margo to have it? Nancy: Why? BFS: Yeah. Nancy: Cause she's the best one I've got. Mmm she came home and that's how we, that's how it goes. She was in Sydney for some time. BFS: What did she do in Sydney? Nancy: I think she was in the Bank. BFS: So Nancy what other assets do you have? Do you have any superannuation? Nancy: I think I have. I can't think how much, I've got no idea. BFS: And how much cash would you have? About how much would you have? About how much? Nancy: I'm not sure I leave that all up to Margo to look after. BFS: Now Nancy I'm going to read your Will and this is a copy of it which you should read at the same time and if you have any questions I want you to interrupt me and ask them alright? [WILL READ] BFS: Now Nancy you read through that as I read didn't you? Nancy: Yes. BFS: Do you have any questions? Nancy: No, I don't think I've got any questions Brad. I think it's alright but anyhow I'm not agreeable about getting Emma any money. BFS: Why is that? Nancy: Because she's had nothing to do with us for ages and she cut off our water but umm awful thing is that she had to go and buy the water out of Molong so you know she cut her own throat. BFS: Now Nancy when you came in was a discussion held about you transferring "Arakoon" and "Hylands" to Margo at this stage? Nancy: You can give it to her when I'm dead. Is that alright? BFS: That's fine. Yeah. So Nancy you understand the terms of the Will. Nancy: Mmmhhhmm. I do yes. I do understand it yes. BFS: Are you happy to sign it now then? Nancy: Yes. BFS: I will go and get some witnesses."
58. During cross-examination, Mr Stuart was asked detailed questions about this transcript. Mr Stuart was asked about various passages: "So what other property do you own? Do you own any Bank money? Any money in the Bank, any stock?"
59. He stated that he had asked all of these questions consecutively, rather than taking a pause after each question: Tcpt, 25 February 2021, p 163(25)-164(04).
60. He was then asked about: "Nancy: I'd like to leave umm, leave it to Margo the "Arakoon" part of it. BFS: And "Hylands"? Nancy: "Hylands" yes because as I say you can't, you need more country, you haven't got enough."
61. Mr Stuart stated that there was no gap between the first and second line or the second and third line of this exchange: Tcpt, 25 February 2021, p 164(06-26).
62. Mr Stuart was then asked about: "BFS: So Nancy what other assets do you have? Do you have any superannuation? Nancy: I think I have. I can't think how much, I've got no idea."
63. Mr Stuart stated that there was no gap between his questions and that the deceased seemed "quite positive" that she had no idea: Tcpt, 25 February 2021, p 164(28-48). However, he also stated that he did not think that she appeared confused; or that she had looked at him blankly; or that she did not look around before answering; and that there was no delay in her answer: Tcpt, 25 February 2021, p 164(50)-165(14).
64. Mr Stuart was then directed to: "BFS: And how much cash would you have? About how much would you have? About how much? Nancy: I'm not sure I leave that all up to Margo to look after."
65. He stated that he did not leave a gap between these questions and that the deceased had answered immediately: Tcpt, 25 February 2021, p 165(16-26).
66. Mr Stuart stated, when asked in cross-examination, that, whilst reading the Will to the deceased, that he was looking at the document and not at her: Tcpt, 25 February 2021, p 165(39)-166(03). As such, he accepted that he did not know if she was reading the Will herself: Tcpt, 25 February 2021, p 166(05-06). It was not suggested that she could not hear what he was reading.
67. Mr Stuart was then directed to: "I'm not agreeable about getting Emma any money".
68. He stated that the deceased appeared "quite firm" when she said these words: Tcpt, 25 February 2021, p 166(41-47).
69. Mr Stuart accepted that he knew that the Will he was asking the deceased to sign did provide for Emma to receive a share of the residuary estate which would be inconsistent with the statement by the deceased and that the deceased, to that extent, did not approve of the contents of the Will: Tcpt, 25 February 2021, p 168(04-13).
70. Senior counsel for Margo submitted that the reference on 16 July 2012 to Emma not getting any money was a reference to the request from Emma for the deceased to pay for electricity and maintenance for the bore pump, not a reference to a testamentary gift. I accept this submission and do not read the transcript of the discussion, on this aspect, in the same way as suggested by senior counsel for Susan. As has been referred to above, not long before the deceased signed the 2012 Will, she had been in dispute with Emma and her husband, Craig, about the water pump. She had rejected all offers that had been made by them to resolve the dispute by the payment of money to them. In this regard, the deceased had been adamant.
71. In making the statement that she did about "Emma getting any money", I am comfortably satisfied that the deceased was referring back to her dispute with Emma and Craig, and that she was not giving instructions for a Will that was inconsistent with what she had previously told Mr Brough and Mr Stuart. The deceased's statements had been consistent that Emma would be included, with Belinda and Susan, in receiving an equal share of the deceased's residuary estate.
72. It is also consistent with Margo's evidence, which I accept, that the deceased had told her when she saw a copy of the letter of 16 April 2012, received from Emma and Craig, that she wanted to take Emma out of her Will but that she had been advised by Mr Stuart that if she omitted Emma completely, that Emma might have grounds to contest the Will and so had decided to "leave it as it is", which was a reference to the instructions that Emma should get one third of residue.
73. Next, Mr Stuart was directed to the lines: "BFS: Now Nancy when you came in was a discussion held about you transferring "Arakoon" and "Hylands" to Margo at this stage? Nancy: You can give it to her when I'm dead. Is that alright?"
74. Mr Stuart accepted that, until this point in time, there was some uncertainty, in his mind, as to whether the deceased wanted to transfer the land inter vivos or by testamentary device: Tcpt, 25 February 2021, p 170(14-17). Despite his evidence about the earlier telephone conversation, Mr Stuart confirmed that this exchange was the first time he had received confirmation on the matter: Tcpt, 25 February 2021, p 170(19-29).
75. (It is fair to say that Mr Stuart's recollection of the day the 2012 Will was signed was not impeccable. I am not entirely sure that his evidence about the last topic was accurate bearing in mind his earlier evidence. Previously, in cross-examination, he had stated that the deceased had rejected the idea of an inter vivos transfer "before she entered the will" (although he could not recall specifically when she had rejected such a transaction): Tcpt, 25 February 2021, p 146(08-20). In any event, what the deceased said was consistent with what she had repeated earlier.)
76. Even if his later evidence was accurate, it does not seem to me to assist Susan's case at all. To the contrary, it demonstrates that the deceased had been thinking about what had been discussed with Mr Stuart and with Mr Brough and that it appears that she was able to weigh up the alternatives, finally determining that she did not want to have the land transferred to Margo before her death and accepting the advice that there were disadvantages in making an intergenerational transfer to Margo.
77. Mr Stuart was then asked about the following lines in the transcript of what had been said: "BFS: That's fine. Yeah. So Nancy you understand the terms of the Will. Nancy: Mmmhhhmm. I do yes. I do understand it yes."
78. Mr Stuart stated that he did not think there was a delay in the deceased's answer to his question: Tcpt, 25 February 2021, p 170(34-45).
79. In his affidavit, Mr Stuart stated that he had no doubts as to the deceased's capacity to make a Will, during this meeting: "She was able to identify her assets. She was able to identify who was in her family. She was able to give a reason for why she was changing her Will. She was able to answer the questions I had asked her in the process of taking instructions on her Will and on the dispute she had with Emma and Craig. She was able to consider the risks involved in the intergenerational farm transfer and decide against it".
80. However, in cross-examination, Mr Stuart accepted that, at that stage, he was concerned about testamentary capacity: Tcpt, 25 February 2021, p 161(44-46). When asked about the steps he took to ensure the deceased had testamentary capacity (other than those appearing in the transcript), Mr Stuart stated that he wrote to Dr Guerin again: Tcpt, 25 February 2021, p 161(48)-162(04).
81. It was at this meeting, that the deceased executed the 2012 Will. The attesting witnesses were Mr Hodges and Ms Reynolds.
82. Mr Stuart conceded that he took no specific other steps to ensure the deceased understand, or approved, the 2012 Will: Tcpt, 25 February 2021, p 168(23-24). However, he stated "[The deceased] said she understood the terms of the will" and "[The deceased] said that… she had no questions": Tcpt, 25 February 2021, p 169(08) & p 170(04).
83. Mr Stuart's statement is hardly surprising as the Will that had been drafted included the specific instructions as to the distribution of property, about which she had spoken to both Mr Brough and to Mr Stuart in February, that she had repeated to Ms Christofferson, and that she repeated not once, but twice, to Mr Stuart.
84. Mr Stuart was cross-examined as follows at Tcpt, 25 February 2021, p 144(06)-144(35): "Q. Did you ever discuss with Mrs Starr the fact that the executors, if they were professional people, were entitled to charge fees? A. My usual practice was to notify clients of the fact that I was - when I was made an executor, that I was entitled to charge professional fees, and also commission. Q. In writing? A. Yes. Q. We don't see that in this case here, do we? A. No. Q. What's the explanation for that? A. I can't recall. Q. You never told her orally, did you? A. No. Q. Is it the position that the first time you told her about your charging of fees or commission would've been at the meeting on 14 July or 16 July 2012? A. No. Q. When do you say you told her about the fees or commissions, if at all? A. Sorry? Q. When do you say you told her about the fees or commission, if at all? A. No. Q. You never did? A. I don't think so, no."
85. However, it is to be noted that Clause 6 of the 2006 Will contained a similar provision, which was in the following terms: "6. ANY executor who may be a solicitor accountant or other person engaged in any profession or business may act in a professional or business capacity in relation to the administration of my estate and shall be entitled to charge and retain all professional and other charges for any business or act done by him or his partner or partners or by his or their clerks or agents in connection with the trusts of this Will whether in the ordinary course of his business or not and although not of a nature required in the employment of a solicitor accountant or other professional person PROVIDED HOWEVER that nothing in this Will shall prevent my executors from applying to the Court for commission."
86. (I have included the topic of the charging clause as Susan relies upon the inclusion of that clause, in a Will prepared by Mr Stuart, and the involvement of Mr Brough, as one of the "suspicious circumstances" supporting the allegation of the lack of knowledge and approval: see Paragraphs 10 and 11 of the amended Statement of Claim filed 12 March 2020. As earlier stated, Mr Stuart read the terms of the Will aloud to the deceased.)
87. On 18 July 2012, Mr Stuart sent Dr Guerin a letter, together with a copy of the Will and the transcription of what had been recorded, which included: "The writer was of the opinion that Nancy had full testamentary capacity at the time and that she understood the nature of the Will and its effect. It would be greatly appreciated if you would let us have a report in which you could state: 1. The length of time that Nancy has been a patient of yours; 2. How often and how recently you have seen Nancy; 3. A brief observation of Nancy's state of health, her present condition and medication and its effect; and 4. Your conclusion that whether or not Nancy has had the necessary capacity to make the Will."
88. The importance of the opinion expressed in the first sentence of Mr Stuart's letter to Dr Guerin, which was written almost contemporaneously with the date on which the deceased had executed the 2012 Will, and the accuracy of which Mr Stuart was not directly challenged, should not be underestimated. In this regard, the cross-examination of Mr Stuart about the events occurred over 8 years after the 2012 Will was signed by the deceased. It is not surprising that some of his evidence may not have been entirely consistent with contemporaneous documents.
89. On 18 July 2012, Mr Stuart sent the deceased a letter, enclosing a copy of the Will, the letter sent to Dr Guerin on 18 July 2012 and a copy of the transcript from 16 July 2012. The letter included the following words: "It would be greatly appreciated if you would make an appointment to see Dr Guerin as soon as possible so that he might be able to make an assessment and give his opinion as to your testamentary capacity. Your early attention to the matter would be greatly appreciated and you might advise the outcome of the meeting with Dr Guerin."
90. In cross-examination, Mr Stuart accepted that this was the first time he had written to the deceased to suggest that she go and see Dr Guerin, despite being told, in February 2012, that she was potentially suffering from early dementia: Tcpt, 25 February 2021, p 173(33-39). He accepted that he wrote this letter because he was concerned about her testamentary capacity: Tcpt, 25 February 2021, p 174(11-14). He later stated that he "wanted confirmation as to her capacity": Tcpt, 25 February 2021, p 174(28).
91. Mr Stuart did not have any recollection whether the deceased saw Dr Guerin, or whether he had heard, subsequently, from the deceased, or from Dr Guerin about any such consultation. However, there was evidence that Dr Guerin had replied, by letter dated 19 July 2012, which was in the following terms: "1. I have known Nancy Starr as a patient for 12 years. 2. In earlier years, I saw Nancy approximately 4 times a year. As she has aged that has increased. Currently I would see Nancy at least every 2 months, sometimes more often. Her last appointment was in June. 3. Physically Nancy appears consistent with her age, but it is apparent that her cognitive function has decreased recently. Her medications are: Tritace and Karvea for hypertension Aricept for cognitive function Zoloft for depression"
92. Although Dr Guerin expressed an opinion as to the deceased's understanding, the part of the report containing that opinion was objected to and rejected because its basis was not explained in the report and there was no evidence of him having undertaken any formal testing when he expressed the opinion. It was difficult to know upon what, precisely, the opinion expressed was based. (I considered that to allow it might be unfairly prejudicial to Susan.)
93. Some of Mr Stuart's evidence, in cross-examination, about what he did, or did not do, suggests that he did not have a very good recollection of the events. What is clear is that, contemporaneously, he did not express a doubt about the deceased's capacity. At the date of the hearing, he was retired. I formed the view, from his demeanour, and some of the answers that he gave in the witness box, together with the long pauses before some of his answers, that he was struggling to recall events which had occurred 8 years earlier.
94. The cause of his lack of recollection, other than the passage of time, would be mere speculation. However, I am satisfied from all of the evidence, that, at the time, including from the transcript of the instructions, that he had based his opinion that "Nancy had full testamentary capacity at the time and that she understood the nature of the Will and its effect" on a proper and contemporaneous assessment.
95. In my view, the transcript of what occurred at the conference, as recorded, prior to the 2012 Will being executed, is important. Mr Stuart read out the 2012 Will as the deceased appeared to read it. When he asked the deceased if she had any questions, she said that she did not. She did not say that could not "follow or appreciate the legal jargon", or that she could not "comprehend Mr Stuart's reading aloud of the Will".
96. I shall return to the evidence of Dr Cetiner later in regard to those matters and about the significance of some of the statements made by the deceased later in these reasons, which in my view support the conclusion that the deceased did have testamentary capacity at the time she executed her Will.
97. There is nothing to suggest that, at the time, Mr Stuart was acting other than with proper vigilance and with due attention to the deceased's instructions. He conferred with the deceased, on her own, more than once, before she signed the 2012 Will and he had confirmed his instructions subsequently by sending to her a copy of that Will, together with other documents.
98. Under cover of a letter dated 19 September 2012, Mr Stuart sent a copy of the signed version of the 2012 Will to the deceased "for your records". The letter also stated that the original Will, the Power of Attorney and Appointment of Enduring Guardian had been placed in the firm's deeds safe and would remain there unless otherwise instructed by her. A copy of the firm's Tax Invoice was included with the letter. It included the following statement: "To our costs of preparation of your Will including: meeting with you and obtaining your Will instructions; drafting engrossing and arranging signature of your original Will; and numerous meetings in connection with it".

Evidence of Philip Hodges

1. Mr Hodges specifically recollects the deceased signing the 2012 Will on 16 July 2012. He knew the deceased as a neighbour of his client, Mr Copson, and he had met her, briefly, on several occasions when she had driven Mr Copson to complete his tax return.
2. Mr Hodges recollected that he greeted the deceased and made reference to her knowing Mr Copson. The deceased said: "Yes, hello Phil. Ron's health is getting worse. He cannot get around his farm anymore".
3. According to Mr Hodges, at the time of the Will being signed, Margo did not say anything to him about the deceased's "condition": Tcpt, 24 February 2021, p 111(46-47). However, he stated that, at another time, Mr Stuart had told him that she "was starting to sort of be in the early stages of dementia": Tcpt, 24 February 2021, p 111(49)-112(02).
4. Mr Stuart had also told him that the deceased was Mr Copson's guardian and that a solicitor "involved with that sort of thing" should be contacted: Tcpt, 24 February 2021, p 112(32-42).
5. Initially, Mr Hodges stated that he was "pretty sure" that this conversation occurred after the 2012 Will had been signed: Tcpt, 24 February 2021, p 112(09-14). He thought that it was "at least six to 12 months" after the 2012 Will was signed: Tcpt, 24 February 2021, p 112(27-30), "probably later in the year December or… early 2013": Tcpt, 24 February 2021, p 113(26-28).
6. However, during cross-examination, Mr Hodges was shown a file note, prepared by Mr Brough, relating to the meeting held on 6 February 2012, in which was written: "Nancy - does she have any power of attorney or guardianship what happens to them? Executorship Copson family friend, these lapse on her losing capacity. He will work it into his letter as an issue to be considered under the circumstances. Phil Hodges will sort it out with his client. Guardianship is the key": Tcpt, 24 February 2021, p 113(43-50).
7. Mr Hodges then accepted that he was not present at the meeting to which the file note related and said that the conversation about the deceased's dementia would have, in fact, occurred before the signing of the 2012 will: Tcpt, 24 February 2021, p 114(17-20). He remained unsure of the exact date but stated "I presume [it was] within a month or two of that meeting [on 6 February 2012]": Tcpt, 24 February 2021, p 117(50)-118(03).
8. According to Mr Hodges, he had been approached by Mr Brough at this time and was told that the deceased "had early onset dementia and [to] talk to Michael Shillington who was Mr Copson's solicitor about getting that possibly changed, because of her… condition": Tcpt, 24 February 2021, p 114(31-41).
9. Mr Hodges accepted that he "did not have a file note to back up when it was said or anything like that": Tcpt, 24 February 2021, p 119(24-27).
10. Mr Hodges was also uncertain about the identity of the person with whom he had a conversation about the deceased's dementia, stating at various points in cross-examination: 1. he was "not sure whether it was Mr Brough or Mr Shillington who advised that [the deceased]… may have to be taken off as guardian of Mr Copson's estate": Tcpt, 24 February 2021, p 117(44-48); 2. "I'm pretty sure it was either Mr Brough or Mr Stuart, but I'm pretty sure it would have been Mr Brough": Tcpt, 24 February 2021, p 118(37-39); and 3. "[Mr Shillington] would have" told him of the deceased's dementia: Tcpt, 24 February 2021, p 119(10-12).
11. It is unsurprising that Mr Hodges did not recollect the identity of the person who told him about the deceased suffering from dementia, bearing in mind his limited involvement.
12. Importantly, Mr Hodges did not give evidence of having observed any obvious signs of dementia at the time the deceased signed the 2012 Will. Nor did he say that there was anything which led him to conclude that she may not have had the capacity to understand what she was signing.

The evidence of Susan and of Margo about the deceased's condition

1. Because there was some criticism of each party's evidence, I shall record next, the evidence given by each of the parties and my conclusions about her credibility respectively. It is to be borne in mind that each is an interested witness, who held strong views as to the deceased's condition and as a result, perhaps, naturally, each lacked some objectivity.
2. I start by noting that Susan is a speech pathologist and that she has worked in hospitals. She said that she often sees people with dementia. She was an articulate and intelligent witness.
3. According to Susan, the deceased's mental capacity was "greatly impaired", from 2009 onwards. I do not accept this description. Nor do I accept that the deceased exhibited any obvious impairment as early as 2009. Although Susan mentioned in her affidavit made on 16 October 2019, in paragraph 10, that she had taken the deceased to a GP in 2009 due to concerns about her capacity, her evidence on the topic is inconsistent with: 1. the particulars of her amended Statement of Claim, which identify matters, the earliest of which she observed in around late 2010 and most of which relate to the period from late 2011 onwards; and 2. the evidence in her affidavit of 24 June 2020, that she had taken the deceased to see her General Practitioner on about 26 October 2011, having "noticed changes in her behaviour language memory and capacity to write for over the previous twelve months or so" and that she was worried that the deceased had dementia. The following particulars were provided: 1. language changes, including difficulty with word finding or anomia, which Susan noticed with increasing frequency over the previous year; 2. the deceased wanting to walk 12 kilometres into town; 3. the deceased looking at Susan blankly during conversations; 4. Susan arriving at the deceased's house for pre-arranged visits, to find mouldy or no food in the fridge; 5. the deceased seeming depressed and anxious and not seeming to care about previous hobbies; and 6. the deceased becoming irritated over small things and seeming to react disproportionately.
4. Susan gave evidence that in December 2010, she had observed the deceased was unable to write a congratulatory card. At around this time, the deceased had begun to hand over her entire wallet to cashiers when she was shopping. More significantly, Susan's evidence was to the effect that the deceased's recollection was so poor that she did not remember seeing Margo, despite the latter's regular visits.
5. Susan stated that she observed the deceased to have become unable to care for herself, manifested by an inability (for example) to keep fresh food and to look after the house. In stating this, she noted an email sent to her on 14 February 2011 in which Margo had written: "I have checked the fridge and it smells much better. It will be safe to visit."
6. Susan also stated that, prior to taking the deceased to Dr Guerin, she had discussed her concerns with Margo and with Margaret. Susan recalls that both had told her they thought there was a problem and that they had also noticed changes in the deceased's behaviour and memory. Susan said to Margo: "Mum keeps telling me she hasn't seen you for days and complaining that she hardly sees you?" to which Margo replied "That's not right I do see her. But Scott and I don't have lunch with mum when we come out, as there is no food, or the food is mouldy".
7. During the consultation with Dr Guerin, Susan stated that he had spoken only to the deceased and "was reluctant to do anything when I was there or even discuss anything with me". Susan "felt like he wasn't listening or acknowledging my concerns". She stated: "In the end I said: 'Let's go mum'… as Dr Guerin wasn't willing to discuss anything with me or complete any tests while I was there... Mum refused to volunteer any concerns of her own to Dr Guerin and Dr Guerin did not help the situation."
8. However, in cross-examination, Susan was taken to Ex TB1/10, a progress note made by Dr Guerin in his practice records on 26 October 2011, recording a visit to him by the deceased and Susan. In this note, Dr Guerin stated "daughter became abusive". Susan stated "I don't recall becoming abusive": Tcpt, 24 February 2021, p 90(14-15).
9. Initially, in cross-examination, Susan stated that Dr Guerin "asked me to leave, but I don't recall that he separated mum and I": Tcpt, 24 February 2021, p 90(36-38). However, Susan later accepted that she had left when Dr Guerin asked her to: Tcpt, 24 February 2021, p 91(14-21). Susan denied that she had physically propelled the deceased out of the room: Tcpt, 24 February 2021, p 92(05-09).
10. On this aspect, I do not accept Susan's evidence. I consider that the contemporaneous records reveal far more about the event than Susan was prepared to admit. I tend to the view that her conduct, on this occasion, was highly combative, as reflected in the notes of Dr Guerin.
11. According to Susan, a couple of months after the appointment, she attended an appointment with Dr Cetiner. Susan recalls telling Dr Cetiner about the language changes she had noticed in the deceased and asking if the deceased had a specific type of dementia. Susan recalled that Dr Cetiner stated that this could only be tested post-death.
12. Susan also recalled that in 2011 or 2012, when in Orange, the deceased had wanted to buy some lollies from a coffee shop for her grandchildren. Susan stated that she stayed in the car with her children. When the deceased returned, she said that she had been unable to find the coffee shop.
13. Susan recalled Margo telling her, in December 2012, that, whilst visiting Susan in Sydney, the deceased kept trying to escape from her hotel room in the middle of the night, forgetting where she was and what she was doing. However, Margo's evidence is that she woke up during the night and the deceased was trying to open the hotel door. When Margo asked her what she was doing, the deceased stated that she was trying to find the bathroom. Margo stated: "In the dark hotel room, mum had gone to the wrong door, something anyone sleeping in a room which they are not accustomed to could do. I may have jokingly said to Susan 'mum tried to escape last night'": Affidavit, Margo Anne Miller, 4 November 2019 at par 18.
14. Margo, also, was an articulate and intelligent witness. It is to be remembered that she was the person who had, by late 2011, been living with the deceased for about 6 years. Although she did commence to live with Scott in 2011, she remained the person with the closest relationship to the deceased and the one who saw her most regularly. Hers was more than casual observation.
15. She stated that, in May 2008, she drove the deceased for an MRI in Dubbo and to Sydney for specialist appointments at the RPA. In June 2008, the deceased had an operation at the Royal North Shore Hospital.
16. After the operation in June 2008, the deceased made the decision to stop driving to Orange and to only drive locally within 15km of Molong. Margo would drive the deceased to Orange when required.
17. According to Margo, in 2011, the deceased's behaviour became a "bit odd". In cross-examination, Margo stated that the first thing she noticed that caused her concern was, in June 2011, when she and the deceased were marking lambs and the deceased had difficulty "doing something that she had done for numerous years": Tcpt, 25 February 2021, p 191(39-45). Margo also recalled an incident, in the second half of 2011, where the deceased had left a farm gate open and that shorn and unshorn sheep became mixed: Tcpt, 25 February 2021, p 191(47-50). She also noticed that the deceased misplaced items, like her dentures and handbag: Tcpt, 25 February 2021, p 192(01-02).
18. In cross-examination, Margo was shown a note, prepared by Ms Christopherson, which recorded Margo as saying that the onset date of the deceased's symptoms was December 2010 and that those symptoms included "confusion and memory loss": Tcpt, 25 February 2021, p 193(04-05).
19. In spite of the contents of the note, Margo maintained that she had only noticed the deceased's memory problems in the second half of 2011: Tcpt, 25 February 2021, p 193(36). She also denied that the deceased was losing her mind or was confused from time to time before then: Tcpt, 25 February 2021, p 193(45-49). Margo rejected the proposition that she had told Ms Christopherson that the deceased was "extremely vague", "can't write her name anymore" or was confused all the time: Tcpt, 25 February 2021, p 195(31-40).
20. Margo denied that, from about early 2011, the food in the deceased's fridge occasionally became mouldy or that the deceased sometimes ran out of food: Tcpt, 25 February 2021, p 196(33-38). Margo also denied that the deceased's premises were run down at this stage: Tcpt, 2 March 2021, p 273(20-21).
21. However, in cross-examination, Margo was unable to explain why she told Susan, around this time, that she had "checked the fridge and it smells much better" and "it will be safe to visit ["Arakoon"]": Tcpt, 2 March 2021, p 273(01-18). On this topic, I tend to the view that Margo's evidence is more likely to be inaccurate and that there was food in the deceased's fridge that had become mouldy.
22. In relation to the event involving Susan and Dr Guerin, Margo had asked Dr Guerin to complete an MMSE and had requested Susan to attend the appointment. Margo denied having told Susan that she thought the deceased was suffering from worsening dementia: Tcpt, 25 February 2021, p 197(19-21). Indeed, Margo said that she had not detected there was anything wrong with her mother's speech or her ability to converse at that stage.
23. During cross-examination, Margo was directed to a note by Dr Guerin of an appointment he had with the deceased and Margo on 7 November 2011. Margo could not recall her or the deceased stating that her memory was deteriorating rapidly. She was unable to explain why Dr Guerin had noted these matters in his records: Tcpt, 25 February 2021, p 197(48)-198(09). Margo accepted, however, that Dr Guerin had told her that the deceased "possibly had early stages of dementia" on this occasion: Tcpt, 25 February 2021, p 199(08-09).
24. On 7 November 2011, Mr Stuart drafted and executed an Enduring Power of Attorney and Appointment of Enduring Guardian for the deceased, appointing Margo. In cross-examination, Margo accepted that she had told Mr Stuart, at the appointment executing these documents, "that [the deceased] had memory problems and they were doing tests at that time": Tcpt, 25 February 2021, p 200(36-40).
25. In cross-examination, Margo accepted that, by December 2011, the deceased had suffered some deterioration in memory, diminished functioning and that on occasions, had been anxious and teary: Tcpt, 25 February 2021, p 202(07-31). However, she denied that the deceased was confused, disorientated about the days of the week, or when away from her own environment, or that she was increasingly dependent on Margo: Tcpt, 25 February 2021, p 203(24-37).
26. Margo also accepted that, by the end of 2011, the deceased's handwriting was not as neat as it had previously been and that the deceased had difficulty, in general, with writing. However, she denied that that the deceased could not write her own signature: Tcpt, 25 February 2021, p 203(06-22).
27. Margo accepted, also, that at the end of 2011, Dr Cetiner had diagnosed the deceased with early stage dementia. Margo informed Susan of the diagnosis, but, at the request of the deceased, had not informed Emma and Belinda.
28. Margo stated that, despite the diagnosis of early stage dementia, the deceased's mental capacity was not "greatly impaired" in 2011 and that she continued to work on the farm, with Margo, until late 2013.
29. Margo acknowledged that, as the deceased's health deteriorated, some of the incidents to which Susan had referred in her affidavit of 23 May 2019 had occurred, such as the deceased wandering around Molong or handing over her entire purse as payment when shopping. However, as Susan acknowledged, some of these events occurred around the time that the 2012 Will was executed.
30. On 19 April 2012, Margo took the deceased to see Dr Cetiner for another appointment. Margo accepted that the deceased had continued to show signs of cognitive impairment: Tcpt, 2 March 2021, p 281(24-26). According to Margo, the deceased was able to tell Dr Cetiner how many tablets of Aricept she was taking, but not the milligram dosage: Tcpt, 2 March 2021, p 282(10-29).
31. In cross-examination, when asked whether she knew why the deceased was undertaking MMSEs on a regular basis, Margo stated "I thought [the deceased] was doing these every couple of months to get another prescription for the medication": Tcpt, 2 March 2021, p 289(50)-290(03). (Dr Cetiner confirmed that, at the time the deceased was taking Aricept, the Pharmaceutical Benefit Scheme (PBS) required a patient to show at least a 2 point improvement in their MMSE scores after commencing Aricept to qualify to continue to receive it with a PBS subsidy. However, he did not explicitly state that this was a reason for the deceased having to undergo the MMSEs.)
32. By the end of 2013, there were occasions when Margo found medications at "Arakoon" that had been opened but had not been taken by the deceased: Tcpt, 2 March 2021, p 283(06-11).
33. In January 2014, Dr Guerin suggested that the deceased's drivers licence be revoked.
34. I have carefully read the evidence of Susan and Margo. It is likely that there is truth in some of the evidence of each of them. There is also some evidence given by each that I do not accept. However, I tend to the view that this has more to do with the passing of time rather than any dishonesty or attempt to mislead the Court.
35. Overall, I tend to the view that Susan exaggerated the severity of the deceased's condition in the period before July 2012. This is not to say that the deceased did not suffer from some cognitive difficulties in 2011 and in the first half of 2012. From all that I have read, I do not think her condition, at all times, during this period, was as bad as Susan stated.
36. However, I am also satisfied that the deceased's cognitive abilities, throughout the period, was not quite as good as depicted by Margo. In this regard, it must be remembered that by December 2011, a decision was made to obtain medical advice from a specialist medical practitioner, Dr Cetiner. This, alone, suggests that there were some matters of concern about the deceased's cognitive condition that required specialist medical diagnosis. In reaching these conclusions, I have also borne in mind the evidence of other witnesses.

The contemporaneous medical evidence

1. The medical evidence relied upon in the case consisted of a copy of the medical notes of the Molong Medical Centre at which the deceased's treating general practitioner, Dr Guerin, conducted his practice; the contemporaneous and other reports; the affidavit and oral evidence, of Dr Cetiner; and the affidavit and oral evidence of Ms Christopherson.
2. The medical notes record, amongst other things: 1. For 31 October 2011: "Dr Michael Guerin dgt concerned re mothers deteriorating memory. ct brain" 1. For 7 November 2011: "memory deteriorating rapidly has asked me the same question 3 times refer to acat" Dr Guerin also recorded that in the MMSE conducted on that day, the deceased scored 16/30. He prescribed Aricept 5mg daily. 1. In November 2011 Ms Christopherson made arrangements for the deceased to have a CT scan "as a result of a significant deterioration in memory that she had experienced over the previous 12 months"; 2. Ms Christopherson's Referral Form of 15 November 2011 records that Margo had noticed slight memory problems, approximately six to twelve months before, and that the deceased was now extremely vague; she could not write her name anymore and was "confused all the time". It was then that the deceased was referred, for the first time, to Dr Cetiner. It was also noted that in the MMSE conducted on that day, she scored 14/30. (Ms Christopherson accepted the deceased may have been confused on the one, or two, occasions that she saw the deceased between November 2011 and July 2012, although the passage of time precluded her from recalling the deceased's symptoms.) 1. On 30 November 2011, Dr Guerin realised that one of the drugs that he had prescribed for the deceased, which she was taking ("Protos"), caused confusion as a side effect. He took her off that drug. 2. On 1 December 2011, the deceased was visited by Dr Cetiner's nurse Mary Rose Taffa. In her report of the visit, Ms Taffa noted that the deceased: 1. "was highly anxious and angry regarding our visit" but that, after 10 minutes of small talk, she invited Ms Taffa into the house and the visit continued. Margo was outside with a colleague of Ms Taffa; 2. was able to name everyone in the many family photos she had in the house; 3. was conscious of a "deterioration in [her] memory and functioning over the last 6 months"; was "forgetful" and "disorientated away from [her] own environment"; 4. was "fit looking and active', "independent with all personal ADLs", and "able to drive to Molong without problems"; and 5. in the MMSE conducted on that day, she scored 20/30. Ms Taffa also recorded that the deceased suffered fluctuating moods; that there had been no change, or improvement, despite commencing Aricept, four weeks before; and that there was some forgetfulness with some aspects of farm work (for example, forgetting to shut gates), the loss of household objects, and difficulty in writing. (As I understand it, Aricept is a drug used to treat the symptoms of Alzheimer's disease, also called dementia of the Alzheimer's type.) 1. On 24 June 2012, Dr Guerin recorded that the deceased scored only 15 on the MMSE performed on that day.
3. There is no suggestion that the documents referred to did not accurately record what the author observed on the date recorded.
4. Ms Christopherson's notes were the subject of evidence. For example, in one of the records, it was noted (with minor amendments correcting spelling errors): "Family History: Nancy has been running the family farm with the help of her daughter Margo since the death of her husband. Margo gave up a good job in Sydney to come and support her mum and enable them to keep the farm running. Over the past few years Nancy has had a marked decline in her cognition particularly when it comes to farm chores. Margo is now running the farm and keeping Nancy active with appropriate chores. Nancy's house is now quite untidy as Nancy keeps everything out on tables and benches so she can find it. When she attends for an appointment she never knows why she is here, Margo always attends with her. She is currently still driving around farm and into Molong and there have only been a couple of incidences where she could not find car or forgot which way home. Social History: Goes to lunch with sister in law regularly and to family functions with Margo. Has never been a great socialiser. She has four daughters but is not close to two of them."
5. Ms Christopherson stated that that it was her practice to raise with patients the need to think about the care she, or he, wished to receive as she, or he, became older so they could make decisions about it while they still had the capacity to do so.
6. However, in cross-examination, when asked if she would speak about a directive to someone of the deceased's age if she had a concern about the patient's mental capacity, Ms Christopherson stated: "No, the advanced life directive doesn't have anything to do with capacity": Tcpt, 2 March 2021, p 310(39-41).
7. Ms Christopherson stated that, when she began explaining the advanced life directive to her, the deceased asked "Is this about the farm? I want Margo to have… the farm. She's worked so hard". Ms Christopherson replied: "You will have to see a solicitor about that. This is about making health decisions".
8. In her affidavit, Ms Christopherson referred to Dr Cetiner's description of the deceased as disordered, confused, never very "conversive", giving monosyllabic answers and not being lucid. She stated that the description given did not accord with her recollection of the deceased in 2011 and 2012. She recalled having several conversations with the deceased about her diagnosis of dementia and, before Mr Copson's death (in June 2014), about his health and about what was happening on the farm. Ms Christopherson recalled the deceased answering questions and volunteering information about Mr Copson and farm events. She stated that the deceased often said words to the effect of: "It's hard for Ron. He lives on his own. He doesn't have power. I am worried about him. He doesn't have support like I've got Margo and Marg and Judy".
9. Ms Christopherson also recalled that the deceased was always very comfortable talking about family, farming, or the weather.
10. In cross-examination, Ms Christopherson maintained that her recollection was that the deceased was not confused all of the time: Tcpt, 2 March 2021, p 305(42-44). However, she accepted that "when [the deceased] was anxious she could get confused": Tcpt, 2 March 2021, p 306(03-05).
11. Ms Christopherson also recollected that, after the deceased's husband died, the deceased said "My daughter Margo is coming to help me run the farm. She is leaving her job in Sydney" and that subsequently the deceased often spoke about Margo and her work on the farm. She regularly said words to the effect of: "I couldn't do it without Margo's help. It's hard work". Ms Christopherson recalls the deceased, on one occasion, stated: "Margo has a boyfriend and I miss her when she is with him".
12. According to Ms Christopherson, on several occasions prior to October 2012, the deceased had told her Margo was "continuing to work hard on the farm" and that she "want(ed) Margo to have the farm after [her] death".
13. Dr Cetiner saw the deceased for the first time on 29 December 2011. He continued to see her, at various times, until 8 December 2016. He had received a copy of the Referral Form dated 15 November 2011 from Dr Guerin (which had been completed by Ms Christopherson). He had also been provided with the results from a series of standard pathology tests used to screen for dementia and a CT scan of the deceased of 2 November 2011 which can be found at Ex TB1/113: "The intercranial midline structures are central. There is pronounced but symmetric diffuse brain atrophy with enlargement of the ventricles, cisterns and sulci. Also some suggested chronic microvascular periventricular white matter ischaemic changes but no focal ischaemic infarct. A small rounded area of hypodensity in the inferior basal ganglia region on the right just above the temporal horn of the right lateral ventricle more likely represents an enlarged perivascular space than a small infarct. No intracranial mass, haemorrhage or extra axial collection is seen. There is noted atherosclerotic calcification in the walls of the distal intracranial ICAs. The posterior fossa structures are unremarkable. No focal bony abnormality is detected. The sinus, middle ear cavities and extensively pneumatised mastoid air cells are bilaterally clear. Impression: • Pronounced age related cerebral hemispheric and cerebellar atrophy. • No intracranial space occupying lesion, haemorrhage or infarct."
14. Dr Cetiner described cerebral atrophy as meaning "a decrement, or decrease in the size of the cell. In brain tissue, atrophy describes a loss of neurons and the connections between them".
15. Dr Cetiner noted that the deceased presented with a 12-month history of cognitive changes and consequential behavioural changes, manifesting in the form of forgetfulness. He did not make any assessment of her cognition but noted that there had been some subtle improvement in her since she had commenced on Aricept.
16. Dr Cetiner indicated that based on the CT scan results, he would expect to see an impairment of conscious thought and voluntary processes. He said that his observations of the deceased included trouble with language (i.e. expressive dysphasia), confusion, disordered words and monosyllabic answers. Based upon his observations, the referral, the MMSE results, the screening test results and the patient history he diagnosed the deceased with Alzheimer's disease in the mild to moderate range.
17. After the consultation, Dr Cetiner recommended increasing the deceased's dosage of Aricept to the maximum of 10mg daily. He also recommended that she commence taking an anti-depressant if the increased dosage of Aricept did not improve her mood.
18. When asked in cross-examination, Dr Cetiner said that he was not familiar with the drug Protos (or Cafergot), and could not recall whether or not he had previously been told that the deceased had been taking it, or that she had been taken off it a month before he saw her, specifically because one of its side effects was to cause confusion. Therefore, he could not make any comment on the extent to which the cessation of Protos (or Cafergot) might also have led to an improvement in the deceased's mental condition.
19. On 19 April 2012, Dr Cetiner attended on the deceased again. (He did not think he had seen her otherwise after her first consultation in December 2011.) Margo was present for the consultation. He performed another MMSE in which the deceased achieved a score of 16/30. One of the MMSE tests indicated there were some issues with her handwriting and visuospatial function.
20. Margo informed Dr Cetiner that the deceased had begun taking Zoloft, which had stabilised her mood, but that the cognitive deficits remained. Although her score on the MMSE, conducted on this date, showed only a modest improvement, Dr Cetiner stated that there had been more significant clinical improvement in terms of her affect and manner, as "she was less distressed, less labile and crying, and more co-operative that day": Tcpt, 23 February 2021, p 23(06-14).
21. Dr Cetiner also noted that, clinically, there had "been an improvement with [the deceased's] mental state and behaviour"; that she "keeps a daily calendar to remind herself"; that she was still "independent with her living skills and there are no services"; that in the MMSE conducted on that day, she scored 16/30 and she still had cognitive impairment. He also recorded that "[S]he was eating and sleeping well", and that "[A]gain there were no symptoms of mental illness such as psychosis or mood disorder".
22. He summarised his opinion on her condition in a letter dated 19 April 2012 to Dr Guerin stating: "Mrs Starr has Alzheimer's disease in the mild to moderate stage. Importantly, there has been no associated behavioural disturbance, mood disorder or psychosis. Her mental state is much improved. Cognitively, there is still significant impairment, although somewhat improved from her assessment pre commencement of Aricept…"
23. Dr Cetiner provided another letter, dated 23 May 2012, to Dr Guerin in which he noted that "on 19 April 2012, there was more significant clinical improvement…".
24. Dr Cetiner saw the deceased again on 11 October 2012. On this occasion, the score she achieved on the MMSE was 20/30, which he wrote showed "significant improvement with her cognition". He added that "Clinically at least, she remains unchanged with her level of cognition and functioning… there has been no obvious progression of her dementia". He recommended the deceased continued on her medication.
25. In his affidavit, Dr Cetiner explained that he considered an MMSE score between 20 and 23 indicated "early stage or mild dementia", and that a score of between 10 and 19 indicated "moderate dementia".
26. During the course of his consultations and treatment of the deceased, Dr Cetiner was not asked to assess, or to even consider, her testamentary capacity. To use his words, the question of testamentary capacity "never came up": Tcpt, 23 February 2021, p 31(21). Indeed, the first time he was asked to do so was in April 2020, over eight years after he had first seen the deceased. The request was made by Susan's legal representatives in the course of obtaining evidence. In other words, during the period of time that he saw the deceased, Dr Cetiner had never been required to formally assess her testamentary capacity.
27. Dr Cetiner agreed that he had not been given any of the other affidavits in these proceedings until sometime before 19 February 2021 (the date he swore his second affidavit); that even then, he had not been furnished with the evidence of either Mr Brough, or Mr Stuart, particularly the affidavit of each made in January 2020, and, therefore, did not know of the evidence each had given of his conversations with, or observations of, the deceased. It is clear, however, that he had been shown the transcript of the conversation that the deceased had with Mr Stuart on the day she signed the 2012 Will.
28. Dr Cetiner was cross-examined as follows at Tcpt, 23 February 2021, p 25(21)-26(25): "Q: …she may not have understood her assets or known their values at the time she signed the will? A. That's correct. Q. You're saying that you don't believe that she would have been able to read or understand the will itself? A. Correct. Q. Because of the legal language that it had? A. Correct. Q. Now, I take it that you nevertheless are of the view that she knew what a will was? A. She knew. I accept that. Q. She knew that this document that she was signing was her will? A. Yes. Q. She knew that it gave the farm and the farming business to Margo, her daughter Margo? A. That's what's stated. Q. But she knew that? A. Okay. Q. But do you agree? A. Yes. Q. She knew that everything else was going to go to her other three daughters? A. I'll have to check the details. I'm not sure. Is that - if that's what's written. Q. You'll have to check the details because what? A. You're asking me about the details of the will itself. I have to go back and check the will if that's the case. Q. I'm asking you about what she knew about the will-- A. Right. Q. --on the day she signed it, and you've seen the transcript of the conversations with her on that day. A. Yes. Q. You said she wouldn't have been able to understand the legal language in that document. A. Correct. Q. But what I'm putting to you is: she nevertheless did understand that she was giving the farm and the farming business to her daughter Margo? A. Yes. Q. And that she was giving the other assets, the non-farming assets, to be divided between her other daughters. She knew at least that much about the will that she was signing, didn't she? A. I'm just going to go with you, okay. I'll have to check that though."
29. In re-examination, Dr Cetiner stated that from the MMSE of April 2012, he would conclude that "her language skill at that time from that question, particularly expressive, is very poor": Tcpt, 23 February 2021, p 29(43-44). What follows demonstrates that perhaps it was better than he recollected.
30. Following the questions asked by senior counsel for Susan, Dr Cetiner gave some answers in response to questions from the Bench: Tcpt, 23 February 2021, p 31(23)-34(13): "Q. Could I then go to some of the answers you gave Mr Condon? A. Please do. Q. One of the things that you said was very important to you in relation to determining capacity was memory? A. Correct. Q. You also said that another thing that was important was executive function? A. Correct. Q. Could you go to page 34 of your affidavit, which is the recording of the conversation? A. 34, I've got it. Q. Could we start at page 34? Would you look at the first page, am I right in thinking that the first question involves memory, she remembers her name? A. Correct. Q. She remembers her date of birth? A. Correct. Q. She remembers that she has children? A. Correct. Q. She remembers the number of children? A. Correct. Q. And their names? A. Correct. Q. And in relation to her grandchildren, she appears to remember the grandchildren that she has, at least the number and the gender? A. Okay. Q. Is that right? A. I don't know the accuracy of that comment, that's why. Q. Assuming that it's accurate, it demonstrates some memory does it not? A. Okay, yes. Q. Would you then look at the next question? A. The next question, which one? Q. Which is "And what are you here for today?"? A. Correct. Q. And her answer? A. Yep, I've seen it. Q. Am I right in thinking that that question and answer demonstrates more than memory? A. Well she understands what a will is, that's what that means. Q. Yes, but she also says that she's there for the specific purpose to have her will done? A. Correct. Q. That does involve more than memory, does it not? A. It would involve more than memory, correct. Q. Am I right in thinking that it would involve some executive function? A. To some degree, yes. Q. She's able, is she not, to extrapolate not only why she's there but the purpose for which she is there as well? A. That's correct. Q. Is that part of executive function? A. In a very simple way, yes. Q. Then go to the next question and answer? A. Right. Q. Am I right in thinking that question and the answer that she provided involves not only memory but also executive function as well? A. Well, it could just be a very simple learned statement too, in a sense that they know what a will is. Q. Yes, then would you go down to the last question-- A. Same page? Q. --"When does a will come into effect?" A. Correct yep. Q. That requires executive function, does it not, the answer? Go to the next page? A. Yes, that's-- Q. She's able to again correlate-- A. Yes, correct. She's understands what a will is. Q. She understands when it becomes operational? A. That's correct. Q. Then would you have a look at the next two or three questions and answers between "So what other property do you own?" up to "As the family trust"? A. Okay, right. Q. Am I right in thinking that that demonstrates a recollection of property that she has? A. Yes, correct. Q. What about the reference to Aurukun (sic) and Aurukun (sic) owning property as part of a family trust? That's a fairly complex response, is it not? That is that it's not owned by her personally, it's owned through the interposition of a family trust? A. Correct. Q. Would I be correct in saying that that is a fairly complex concept for her to have raised as part of her response? A. Correct. Q. It seems, if I accept that statements made, that not only was the solicitor providing Mrs Starr with a copy of her will, he also read it out to her? A. Correct. Q. Would that assist in her understanding, that is the reading out of the parts of the will? A. I didn't actually hear the recording, but if it's a continuous discussion that would be quite a challenge for her to maintain her attention at each issue that's been mentioned before moving onto the next and the next and the next. That's where I think it's more complex with the executive functioning, to be able to maintain and understand all those concepts. Q. I see. But so far as the dispositions in the will are concerned, we have clauses 3, 4 and 5 which formed gifts to Margo, correct? A. Clause? Q. If you just look at page 36, you'll see at paragraph 3 or clause 3, 4 and 5? A. Okay, yep. Q. They appear to be gifts of property to Margo? A. Correct. Q. And then you have the matters that - and 7 is another gift to Margo? A. Correct. Q. And then you've got 6 and 8 being the rest of the estate? A. Correct."
31. Senior counsel for Susan then asked some questions Tcpt, 23 February 2021, p 35(41)-36(42) (with minor spelling corrections): "Q. I'd just like to ask you about the passage that follows. Mr Stuart says, "So what do you want to do in your will, Nancy?" and the answer is, "I'd like to leave Margo the 'Arakoon' part of it." Do you see that? A. Correct. Q. Can you assume for the moment that she does not mention 'Hylands' but we see Mr Stuart prompts in the next question? A. That's correct. Q. If her answer was confined to, "I'd just like to leave Margo the 'Arakoon' part of it," and she's not referring to 'Hylands', what does that indicate to you about her capacity as at the date of this transcript? A. This is what I was trying to say about executive functioning, trying to maintain all the aspects of the issue at the one time, making decisions calculated based on all the information at the same time and then coming to conclusions and expressing her wish. Q. Then Mr Stuart asked about Highlands (sic), and Mrs Starr said something about that, and there's a question about the stock and current accounts. A. Correct. Q. You'll see some questions and answers down to about eight-tenths of the way down the page, and then Mr Stuart says to her or asks her, "What did she," that is Margo, "do in Sydney?" Do you see that? A. I see it. Q. Mrs Starr answers, "I think she was in the bank." A. Correct. Q. Can I ask you to assume that Margo had worked for Westpac for a number of years before, up to 2001, but had resigned from the bank in 2001 and commenced work at the Maersk, M-A-E-R-S-K, Shipping line? So from 2001, she was working for an entity other than the bank and that she came to live with Mrs Starr in about July 2005. What does that answer to that question indicate to you about Mrs Starr's capacity? A. Well, first of all, there's an issue about her language, that's obvious. Q. Just forgive me. What are you referring to there, please? A. I'm quoting Nancy's comments, "I think she was in the bank," instead of saying what does, that she worked in the bank. Q. Yes. A. That's just one issue. Second issue is about her memory, short term or recent memory, that she didn't recall that other job that she was doing and that she remembered one that was much longer and previous. Q. What does that indicate to you on the issue of capacity? A. Again, it comes down to recall and memory as being, that, that, well, what that shows is that her memory has been impaired for some years. Quite, and in fact that's not uncommon, that often the patients, although they're diagnosed at a certain year, the deficits could have been evident for a couple of years before that."
32. Susan submitted that the deceased did not have the requisite level of testamentary capacity at the time of signing the 2012 Will. In doing so, Susan relied on the evidence of Dr Cetiner, the only medical expert called in these proceedings. She maintained that weight should attach to his opinions because they were formed at the critical times with the benefit of at least one lengthy conference with the deceased and having taken a history from Margo.
33. Margo submitted that Dr Cetiner's conclusions as to the deceased's capacity were formed without knowing of some significant evidence bearing on the deceased's condition, namely: 1. he was unaware of the fact that one of the drugs prescribed for the deceased had confusion as a well-known side effect; 2. the first time that he had been given any of the affidavits of the evidence was when he was asked to prepare the affidavit he swore on 19 February 2021; 3. even then, he had not been furnished with the evidence of either Mr Brough or Mr Stuart, and so did not know of the evidence they had given of their conversations with, or observations of, the deceased; and 4. he was not aware that, at about the same time as instructions for the Will were given and it was executed, the deceased was involved in a legal dispute with Emma.
34. Margo submitted that the views of Dr Cetiner must be considered carefully.
35. Not very much time, if any, was spent by either senior counsel on the events in February 2012, in which there had been discussions with Mr Brough and with Mr Stuart about her testamentary intentions. Importantly, Dr Cetiner himself did not comment on what either of them had stated in his affidavit about those events and the instructions given by the deceased at that time.

Conclusion regarding the medical condition of the deceased

1. Importantly, there can be no dispute that in December 2011, the deceased was diagnosed with dementia and that the conclusion of dementia of the Alzheimer's type was an accurate one. As the Court knows, dementia is a neurodegenerative condition characterised by the development of multiple, cognitive deficits, usually including memory impairment, whilst not impairing consciousness. Yet, there was no evidence of any neuropsychological examination. There was clearly evidence of the deceased suffering some impairment of memory and of cognition, but there was no evidence of any behavioural, or psychological, symptoms of dementia. Nor was the deceased suffering from any debilitating physical ailments, she being able to continue to do the farm work with Margo.
2. In relation to the various MMSE conducted, it is to be remembered that the examination is wholly insensitive to executive dysfunction. It is insensitive to cognitive impairment in a more general sense, such as in relation to frontal executive functions of insight, judgement and the ability to plan. Scores are also influenced by IQ and education levels.
3. It is also clear that in 2011 and 2012, the deceased had an understanding of personal, health and lifestyle decisions that she was required to make and she was able to make those decisions. For example, signing an Enduring Power of Attorney and Appointment of an Enduring Guardian suggests that she was able to understand these matters.
4. In executing the Power of Attorney, Mr Stuart completed a certificate under s19 of the Powers of Attorney Act 2003 (NSW), which read: "I, Bradford F M Stuart of Anson House 193-195 Anson Street, Orange NSW 2800 certify the following: 1. I explained the effect of this power of attorney to the principal before it was signed; 2. The principal appeared to understand the effect of this power of attorney; 3. I am a witness prescribed by section 19(2) of the Powers of Attorney Act 2003; 4. I am not an attorney under this power of attorney; 5. I have witnessed the signing of this power of attorney by the principal."
5. There was no suggestion put to Mr Stuart that the certification that he gave was inaccurate.
6. The deceased's condition did not follow a straight line and there appear to have been periods of exacerbation and fluctuation.
7. I must also take care to remember, in the assessment of Dr Cetiner's evidence, that much of that evidence was directed to questions of capacity, generally, rather than testamentary capacity, and that the deceased's capacity to execute a will was not under direct consideration.

The submissions concerning the 2012 Will

1. According to Susan, the transcript of the deceased's 16 July 2012 meeting with Mr Stuart demonstrates that the deceased could not identify, with precision, her assets or give an accurate description of Margo's career. Further, the deceased had been prescribed and was supposed to be taking 10mg of Aricept to improve cognitive functioning, but it appears that she was not taking Aricept, or was not taking it correctly, by July 2012.
2. Susan submitted that Mr Stuart made a number of concessions in evidence, which demonstrated the deceased's lack of capacity, including: 1. he could not recall what steps he took at the meeting on 6 February 2012 to ensure that the deceased had capacity; 2. he sought a report from Dr Guerin on 2 April 2012 because he apprehended that the deceased had potentially lost capacity; 3. on 16 July 2012, he was concerned about the deceased's testamentary capacity; 4. other than what appears on the transcript, and other than writing to Dr Guerin, he took no steps to satisfy himself that the deceased had capacity; 5. he did not know if the deceased had read the Will on 16 July 2012 before she signed it; and 6. he asked the deceased to see Dr Guerin after she executed the will due to concerns about her capacity.
3. According to Susan, Mr Stuart undertook no comprehensive test of the deceased's testamentary capacity, failed to correct her misunderstanding as to the terms of the Will, and, even after 16 July 2012, harboured doubts about her testamentary capacity.
4. During oral submissions, senior counsel for Susan referred to Veall v Veall (2015) 46 VR 123; [2015] VSCA 60, in which Santamaria JA stated (Beach and Kyrou JJA agreeing), at [186]: "there are several decisions in which courts have held that suspicious circumstances have not been dispelled notwithstanding that a will has been read over to a testator by a solicitor before its execution".
5. Susan submitted that Mr Stuart's evidence was unreliable, given that he was unable to remember many of the details of what occurred at his meetings with the deceased on 6 February 2012 and 16 July 2012.
6. Susan submitted that the deceased also did not know and approve of her Will, given that: 1. Margo, the principal beneficiary, was instrumental in the process by which the Will came to be prepared, in that she attended the 6 February 2012 meeting with Mr Brough where the deceased's wishes were discussed; 2. the deceased's capacity was impaired, because of her dementia and because she could not recall details of her assets; 3. the Will constituted a marked change in the deceased's testamentary intentions and, in Susan's case, this cannot be explained by any deterioration in the deceased's relationship with Susan; and 4. the deceased was not agreeable to Emma receiving any money, when the Will provided otherwise.
7. However, in oral submissions, senior counsel for Susan accepted that, despite her assertions that the deceased was a significantly demented elderly person living on her own, she had given no evidence of any attempts made by her to assist the deceased in the years following 2011: Tcpt, 3 March 2021, p 340(12-23).
8. Senior counsel also accepted that Susan did not file a caveat to prevent a grant of probate and took a year to bring her claim for revocation of the grant: Tcpt, 3 March 2021, p 340(25-43). Whilst she may not have known all of the particulars that she inserted in her Statement of Claim when it was filed, according to her evidence, the deceased was significantly impaired from 2009. In this regard, she gave evidence of her experience as a speech pathologist and her observations of dementing patients.
9. Susan was not cross-examined on the deceased's capacity and she submitted that special significance should attach to this fact. Senior counsel for Susan referred to Gooley v Gooley [2021] NSWSC 56, in which Sackar J wrote, at [1150] - [1152]: "…Judges in the common law system are umpires not investigators. It is no part of the function of a trial judge to make or explore a case not sought to be made by one of the parties. They are not of course obliged to accept evidence even that which has not been the subject of cross examination. But the failure to cross examine at all where matters are seriously in issue usually should have consequences, especially where the decision is to be seen as a deliberate forensic choice. … Cross examination is not a test of willpower or cleverness. It is the opportunity for the relevant party to expose flaws, qualifications or doubts about the other side's evidence in order to persuade the court to accept or reject evidence. By adoption of this convention the court has the full opportunity to evaluate the opposing cases. Failure to cross examine will generally as I have said have consequences"
10. The matters to which I have referred about Susan's evidence on her observations were self-evident and did not require cross-examination.
11. Susan submitted that when the deceased stated that she did not want Emma to have any money, she was referring to the money proposed to be given under the 2012 Will. She relied on the fact that Mr Stuart accepted, in cross-examination, that the deceased was referring to the Will when she made this statement. Further, the pump dispute was not the subject of any earlier discussion on that day and there is nothing in the transcript which could have caused the deceased to turn her mind to it. The last communication on that topic occurred on 8 May 2012, being the date of Mr Stuart's letter on the topic.
12. During oral submissions, however, senior counsel for Susan accepted the proposition I put to him that "Elderly people… often come back to issues that have been bothering them" and that the pump dispute had "been a very significant issue in relation to the last six months of [the deceased's] life": Tcpt, 3 March 2021, p 349(09-20). I have dealt with this issue earlier in these reasons.
13. Margo's case is that the provisions of the 2012 Will set out a natural and logical testamentary scheme, having regard to the deceased's circumstances and those persons who might have had a claim on her bounty. I accept this submission.
14. Margo relied on the unequivocal, and repeated, statements made by the deceased during her meeting with Mr Brough and her meeting with Mr Brough and Mr Stuart on 6 February 2012, and then what she repeated to Mr Stuart, concerning "Arakoon" and "Hylands" going to Margo and the residue of the estate being shared between her other three children as demonstrating both capacity and knowledge and approval.
15. Margo asserted that Mr Stuart's evidence in cross-examination that the deceased's statement "I'm not agreeable about getting Emma any money" was a reference to a testamentary gift was mistaken, for the following reasons: 1. Mr Stuart appeared to struggle to recall events which occurred 9 years earlier; 2. if Mr Stuart's evidence were true, he deliberately allowed the deceased to execute a Will which he knew was contrary to her instructions, a conclusion which the Court should be slow to draw against a solicitor of significant experience in drafting wills; 3. it is unlikely that a solicitor who was careful enough to record the meeting would allow a will to be signed that was inconsistent with the deceased's instructions; 4. on 8 May 2012, the same day as her dispute with Emma about the bore pump was resolved, the deceased told Mr Stuart that she wanted Emma to be a recipient of the residue of her estate. There was no change of circumstances between this conversation and the making of the Will in July 2012; 5. it would have been a simple matter to print a new will which omitted Emma's name or rule through her name and initial that change, if the deceased had been referring to the Will; and 6. after Mr Stuart read the 2012 Will to her, she did not raise any objection to Emma's name being mentioned.
16. Counsel for Margo, during oral submissions, referred to Salmon v Osmond [2015] NSWCA 42, a probate case in which a child of the deceased had worked, for many years, on the deceased's rural property. Beazley P (McColl JA and Gleeson JA agreeing) wrote, at [67]-[72]: "The appellants submitted that the primary judge's "foremost error" was a failure to pay appropriate regard to the deceased's own judgment as to how the demands on his bounty were to be satisfied…They submitted that it was obvious that it was the deceased's intention to keep the farm as an integrated economic unit, managed and run by Michael... The appellants submitted that it had not been demonstrated that the deceased, in giving precedence to Michael over the claims of his other children, had failed in his testamentary duty …They contended that the testator's intention was to reward Michael for his past efforts and to fulfil his expectations of succeeding to the farm… It was submitted that the deceased had sought to achieve this by leaving the substantial portion of the farm to Michael so that it would continue to operate as an integrated farming operation. …a testator's explanation of why he made… decisions must be given appropriate weight… the deceased's reasons for preferring Michael in his will were well based and the Court should pay appropriate regard to them."
17. Counsel for Margo submitted that he did not cross-examine Susan on this issue because "what's important really is what happened on 6 February when the instructions were given and what happened on 16 July": Tcpt, 3 March 2021, p 385(25-28).

Dementia

1. I turn next to some matters concerning dementia.
2. The World Health Organisation definition of dementia is: "Dementia is a syndrome due to the disease of the brain, usually of a chronic or progressive nature, in which there is impairment of multiple higher cortical functions, including memory, thinking, orientation, comprehension, calculation, learning capacity, language and judgement. Consciousness is not clouded. Cognitive impairments are commonly accompanied, and occasionally preceded, by deterioration in emotional control, social behaviour or motivation."
3. There is in Nicholson & Ors v Knaggs & Ors [2009] VSC 64 at [369], a very useful summary of the different stages of dementia (footnotes omitted): "Professor Peisah also agreed with observations as to the progress of Alzheimer's disease made in O'Brien, Ames and Burns work on dementia and she also agreed with the conclusions of Isabelle Gelinas and Stephanie Auer in their edited work on the loss of functional autonomy suffered by an individual having Alzheimer's disease. The progress of the disease plotted by these authors, when their observations are integrated, may be summarised as follows: (a) In the pre-dementia stage, meticulous neuro-psychological investigation may reveal very mild cognitive impairment five years before the clinical diagnosis of a dementia syndrome can be established. At the pre-dementia stage of Alzheimer's disease, patients do not show a significant deterioration in activities of daily living. Individuals may still be able to live independently most of the time but, due to significant cognitive difficulties in several domains, may still need support with a variety of activities. Sufferers may forget appointments or have difficulty finding their way in unfamiliar environments. At this stage, individuals may use memory aids and other strategies to overcome or compensate for any cognitive deficits. (b) In the mild dementia stage, memory impairment usually interferes with various cognitive domains and usually plays a key role in the patient's difficulties with the activities of daily living. The patient's reduced ability to plan, judge and organise may not only show in complex tasks, but also in more difficult household chores such as managing finances, preparing meals and using complex appliances at home. Communication may begin to suffer from a reduced vocabulary, decreasing word fluency and less precise use of expressive language. Even though a patient may still appear eloquent, "fluent" and even verbose on casual inspection, an impairment of object naming and semantic difficulties with word generation can often be demonstrated by means of detailed neuropsychological tests. Individuals have more difficulties in performing complex instrumental activities, such as dealing with finances or marketing. At this point, independent living is attainable and the affected person can still adequately perform basic tasks, such as dressing or moving around their community. Symptoms of depression may prevail in the early stages of illness. These emotional disturbances are typically mild and fluctuating, but full-blown depressive episodes can also occur. (c) In the moderate dementia stage, due to the severe impairment of recent memory, patients may appear to "live in the past". Logical reasoning, planning and organisational abilities are significantly impaired at this stage. Language difficulties become more obvious. Reading skills deteriorate and the comprehension of texts can be incomplete. Individuals start to experience difficulties with basic activities of daily living. This usually begins with problems in choosing appropriate clothing. At this point, patients with Alzheimer's disease are no longer able to live alone safely and the ability to drive a motor car becomes increasingly compromised. Writing becomes increasingly insecure with an increasing number of mistakes and omissions. Patients become distractible and gradually lose insight into their condition. (d) In the severe dementia stage, specific cognitive deficits cannot be teased apart at this late stage of the illness, when almost all cognitive functions are severely impaired."

The Law - Probate

1. The task of the Court in contested Probate proceedings is to determine which is the last valid will of the deceased. Relevantly, in the present case, one focus of the enquiry is to ascertain whether the deceased suffered from any medical conditions that affected her capacity to make the 2012 Will. Another is upon the process by which the 2012 Will was produced.
2. Wills can be proved in two ways; being in common form or in solemn form. A grant, in whichever form it takes, is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 at 398. The power to grant probate of a will vests in the Supreme Court.
3. A grant in common form is the result of non-contentious proceedings where the validity of the will is not contested. In that case, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596, at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147, at [35]. It has been described as an interlocutory order. It is usually made on the basis of affidavit evidence, and in the absence of interested parties, by a Registrar exercising the powers of the court.
4. In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [8], it was said that a grant of probate in common form is inherently revocable. The grant does not create a res judicata, but is subject to later challenge: Romascu v Manolache [2011] NSWSC 1362 at [174]- [177].
5. In order to obtain a grant of probate in solemn form, the propounder of the will must establish that the will-maker had capacity at the relevant time to make a will, that she, or he, had the intention, by the instrument, to make a will, and that she, or he knew and approved of the contents of the testamentary instrument: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed) (1989) [301]; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21.
6. It is open to a court exercising probate jurisdiction to revoke the grant, at any time, upon a proper case being established: Richardson v Rearden [2006] NSWSC 1252 at [16].
7. In Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), 8 May 1992, unrep) Powell J wrote, at 14-18: "That the Court possesses, and, when necessary and appropriate, will exercise, the power to revoke a grant which it has made - even after the death of the original grantee (see, Ayling, deceased January (1949) (UK) unreported, but noted Tristram and Coote's Probate Practice 24 Ed (1973) at 470) In Re Gillard (1949) VLR 378) is undoubted, the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective. (see, for example Tristram and Coote op cit at 426-433; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed (1982) at 335-339). It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as of course, or even as a matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case (In the Will of Lamont (1881) 7 VLR (IP and M ) 86; In re Goode (1890) 11 NSWLR (Eq) 281; In Re Gillard (supra)). Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable - and, in any event, probably impossible - to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion. However, having regard to the particular features of this case, it may be instructive to look at the way such questions as long delay, estoppel and the concept of abuse of process have been regarded over the years. The earlier cases appear to have proceeded upon the basis that, while delay, of itself, was not necessarily a bar, a long delay which was unexplained did constitute a bar... to allow revocation after a long delay unconditionally 'would be contrary to reason and every principle of justice. Where the opposing party has been in a situation which rendered it impossible or difficult for him to have proceeded earlier - if he has been absent from the country, a minor, or labouring under imbecility, he may be admitted...' Sir H. Jenner Fust… said 'the ground or principle upon which the Court proceeded in that case was that the party was not barred by the lapse of time if he could show good reason why he had not proceeded at an earlier period; it affirms the principle that if he does not show good cause, this Court, unless pressed by superior authority, will not allow him to call in a will after such a lapse of time'. ...Although one may question whether 'estoppel', or waiver, or acquiescence, represent completely independent bars to a claim for revocation it should be noted that there are suggestions in the cases to the effect that they might be."
8. Powell J repeated what he had written in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), 20 August 1993, unrep) at 19-20, and Bryson J applied it in Stanley v Stanley [2000] NSWSC 1133 at [8] as did Campbell J in Richardson v Rearden [2006] NSWSC 1252 at [16]. More recently, the passage was referred to, with approval, by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [293].
9. The relevant legal principles concerning the determination of the question whether a grant should be revoked were considered in Seeley v Back - Estate of John Michael Pegus Seeley [2005] NSWSC 68, in which Barrett J wrote, at [16] - [17]: "The legal principles This is a case in which a grant of probate in common form has been made and the plaintiff, as the person challenging the validity of the will, seeks vindication of his position by an order revoking the grant of probate. In that respect, the case resembles Kantor v Vosahlo [2004] VSCA 235 (16 December 2004). Ormiston JA there said (at [3]): 'The present case arises out of an application to revoke the grant of probate to the appellants but, whatever might have been the position in other circumstances, it was accepted here that the burden of establishing that the will had been validly executed remained on the appellants, as having propounded the will and having received a grant of probate of it in the first place, so as to show that they remained entitled to that grant, with the consequence that, if they failed to do so, the respondent would have made good his right to have that probate revoked.' In the present case, therefore, it is for the defendant executors to show that the will is a valid will and that the grant of probate to them should be allowed to stand."
10. More recently, in Estate Kouvakas; Lucas v Konakas, Lindsay J, at [304] - [306] wrote: "It would be a vain effort, and an imprudent one, to endeavour, by emphatic statements, to constrain the Court's discretionary power to revoke a grant. There is, in the administration of justice generally and in the administration of estates, a need for principled flexibility in decision-making. The best that can be done is, perhaps, to recognise that: (a) all decisions about the revocation of grants should be made with the purpose served by the probate jurisdiction in mind; and (b) insofar as judicial decision-making may be assisted by reference to precedents, patterns of decision-making may, from time to time, be found in earlier cases. On a search for such patterns there are some constants. Chief amongst these are respect for the autonomy of the person whose estate falls for consideration, and the necessity to maintain the integrity of the Court's processes."
11. Lindsay J also wrote in Estate Cockell; Cole v Paisley [2016] NSWSC 349, at [51] - [55]: "An application of these principles in these proceedings carries with it an acceptance that the defendant, as propounder of the deceased's wills, bears the legal onus of proving their validity, including that of the 2006 will. The circumstances in which the defendant sought and obtained a grant of the 2006 will, with notice of the plaintiff's opposition and ongoing inquiries, and the speed with which the plaintiff thereafter applied to have it revoked, so that no part of the estate has been distributed, are such as to justify, and require, the defendant to be treated, in substance, as if he were propounding the will de novo: Estate Kouvakas [2014] NSWSC 786 at [284]-[291]. A decision of the Court, in location of the onus of proof on an application for revocation of a grant, is largely one of case management, governed by the purposive character of the probate jurisdiction, directed towards the due and proper administration of the deceased's estate and, in the interests of justice, approaching the question as one of substance, not form. In this context, an applicant for revocation of a grant (not unlike an applicant for the setting aside of any judgment or order of the Court) must generally persuade the Court that the applicant has: (a) a reasonably arguable case for a grant of representation other than that under challenge; and (b) an explanation for delay in advancing a case for that alternative form of grant: Cf, Vacuum Oil Pty Co Limited v Stockdale (1942) 42 SR (NSW) 239 at 243-244 and Tobin v Ezekiel (2012) 83 NSWLR 757 at 761[3]-764[18]. Four important qualifications to this general statement - ideas that inform an exercise of probate jurisdiction - must be borne in mind. First, the fact that probate litigation is "interest litigation" is a critical factor in all decision-making; an applicant for revocation of a grant must be able to show that his, her or its rights will, or may, be affected by the outcome of the proceedings: Estate Kouvakas [2014] NSWSC 786 at [212]-[216], citing, inter alia, Gertsch v Roberts; The Estate of Gertsch (1993) 35 NSWLR 631 at 634B-C and Osborne v Smith (1960) 105 CLR 153 at 158-159. Secondly, public interest considerations are always prominent in probate proceedings because of an ever-present need: (a) to consider "rights", whether actual, potential or merely arguable rights, of absent parties (always, in the nature of the jurisdiction, including the deceased, and often including beneficiaries who may, or may not, be aware of their interest in an estate); and (b) to maintain public confidence in an orderly, fair process for succession to property. Thirdly, an application for revocation of a grant, and a consequent reopening of issues otherwise settled, may be refused if there is no utility in allowing litigation to proceed; for example, because the size of the estate is too small to warrant, or bear the cost of, further disputation, or because the estate has been fully administered: Estate Kouvakas [2014] NSWSC 786 at [292], citing, inter alia, Stanley v Stanley [2000] NSWSC 1133 at [11] and [33]-[34] and Richardson v Reardon [2006] NSWSC 1252 at [19]-[21]. Fourthly, a preparedness of the Court to entertain an application for revocation of a grant (involving, as it may, an examination of the merits of the grant itself) does not, of itself, entitle the applicant to an order for costs out of the estate or against a perceived adversary. An applicant proceeds at his, her or its own risk as to costs, bearing in mind that the public interest character of probate proceedings may need to be weighed in the balance upon a determination of what orders for costs are, in all the circumstances, appropriate: Williamson v Spelleken [1977] Qd R 152. The essential question, in deciding whether a particular document should be admitted to probate, is ultimately whether it was the last will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35; Boyce v Bunce [2015] NSWSC 1924 at [45]-[46]."
12. In this case, there did not seem to be serious dispute that the deceased's diagnosis of dementia at, or about, the time of the execution of the 2012 Will, was such that it was appropriate to require the executors to prove, affirmatively, on the balance of probabilities, that the deceased had testamentary capacity, and that she knew and approved the contents of that Will. As stated, there was no challenge to the 2006 Will other than on the basis of it having been revoked by the 2012 Will.

Solicitor's Duties in Will-Making

1. In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, I set out the relevant principles. However, for the benefit of the parties in these proceedings, I shall restate what I said there, with additional principles, where necessary.
2. It is trite that a solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving instructions freely and voluntarily.
3. In Jarman on Wills, London, Sweet and Maxwell, 8th ed, 1951, Vol. 3, page 2073, it is said: "Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills."
4. In Pates v Craig & Anor; The Estate of Cole (Supreme Court (NSW), 28 August 1995, unrep), Santow J, at 36-39, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour wrote: "There do not appear to be rules of professional conduct specifically governing the first situation. Thus R 22 of the Professional Conduct and Practice Rules deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever 'associate' may mean it probably falls short of including a conventional solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to a similar effect. That does not, however, mean that no ethical considerations arise in such a circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v Mikrelsen (Supreme Court of NSW, 3 October, 1974, Unreported), in the analogous context of conveyancing transactions: 'The reasonable expectations of a client instructing a solicitor [is] that the solicitor will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of another party. [The client] should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself.' The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his or her favour and the interests of the testator. The testator should be assisted by his legal or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances, the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is reason to fear lack of testamentary capacity on the part of the testator by reason such as fragility, illness or advanced age. Further, in such context, the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent... There is an additional consideration, not dependent on the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical check list approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned, on the alert. At the least, the solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity... For this purpose, and subject to the earlier caveat concerning checklists, the advice concerning the taking of instructions contained in Mason & Handler's 'Wills, Probate and Administration Service NSW' (Butterworths) [at 10,019] is a useful guide… 'If any doubts do rise as to the testator's capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties: 1. The solicitor who is to draw the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect; 2. One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify where the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testator's consent; 3. A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present. If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who took instructions to draw the will and be present on execution and this practice should not be departed from in these circumstances. On execution the attesting witnesses should where possible, come from those persons (including the solicitor) referred to above who are present at the time of instructions and, again as at every stage, detailed notes of the events and discussions taken.' If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted."
5. Because it is relevant to the issues in this case, I also refer to Key v Key [2010] 1 WLR 2020; [2010] EWHC 408, in which there was a reference to what has been described, in the United Kingdom, as "the golden rule", namely, that "when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings".
6. There is no so-called "golden rule" in Australia. At its highest, what is described elsewhere as a rule provides guidance only and any failure to obtain the view of a medical practitioner does not automatically invalidate the will; nor does compliance guarantee its validity. The duty of the solicitor instructed to make a will is to take reasonable steps to satisfy herself, or himself, that the will-maker has testamentary capacity. This requires the exercise of her, or his, judgement.
7. Certainly, some authority suggests that it would be prudent for a solicitor to obtain a medical opinion as to the will-maker's medical condition and the effect on her, or his, capacity, before making a new will for an elderly client where there is a doubt about testamentary capacity, see, for example: Fradgley v Pocklington (No 2) [2011] QSC 355 at [28].
8. Where, as in this case, the solicitor is aware, prior to meeting with the deceased that there is a potential issue as to capacity, the statement that should be borne in mind is found in a Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98, of Kroft J in the Manitoba Court of Queen's Bench, in which (at 107) it was said: "Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood."
9. In Nicholson v Knaggs, Vickery J, at [664], recommended a "considered and appropriately structured interview with the testatrix" and, at [387], emphasized that "in order to establish knowledge and approval of a will by a testator, 'more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him'".
10. In Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47], White J wrote: "As is said in Charles Rowland, Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]: 'Where the solicitor is drafting a will and there is any possibility that the testator's capacity might later be questioned, the solicitor should ask questions the answers to which will establish whether or not each of the requirements for capacity laid down in Banks v Goodfellow is satisfied. It follows that the solicitor taking instructions for a will must have the Banks v Goodfellow tests at the front of her or his mind.'"
11. The weight to be given to the solicitor's evidence will depend on his, or her, experience, training, and understanding of the test of testamentary capacity; his, or her, ability to make an assessment of capacity taken with the quality of the assessment made, as appears from any contemporaneous notes and records; his, or her, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and his, or her, independence; the will-maker's presentation to the solicitor, and whether there are any "red flags" suggesting a possible challenge to capacity. It will also depend on "the level of enquiry and discussion on the part of the lawyer of, and with, the deceased": Loosley v Powell, at [51].
12. Red flags might include recency of hospital admissions or other medical attention received by the will-maker; whether the will-maker is making significant changes to her, or his, will; or that the will-maker is not an existing client of the firm of the solicitor. In circumstances where there are any red flags, the solicitor would be prudent to exercise more caution. In such cases, she, or he, may consider that the only way to be satisfied that the will-maker has testamentary capacity is by obtaining a medical report.
13. This appears to be a case in which the words of Young J in Re Crooks Estate (Supreme Court (NSW), 14 December 1994, unrep) apply. In that case, at 29, his Honour stated that evidence from a solicitor who has considerable experience, including in dealing with elderly clients, and their testamentary wishes, is valuable evidence of testamentary capacity because: "[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic]."
14. The passage quoted above was referred to, with approval, in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218, at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).
15. Other authority supports the view expressed by Young J. Mummery LJ in Hawes v Burgess, wrote, at [57] and [60]: "That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational. … My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix, and particularly in circumstances when that expert accepts that the testatrix understood that she was making a will and also understood the extent of her property."
16. Yet, I accept that the value of the solicitor's evidence should not be overstated, and it should not be regarded as being of magnetic importance. Nor does the fact that a solicitor may genuinely believe that the will-maker had testamentary capacity at the time she executed the Will, displace the Court's role in deciding whether, in fact, she had testamentary capacity. The solicitor's evidence must be read with all of the other evidence in the case.
17. In this regard, Christopher Pymont QC stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43] that the comments made: "do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless."
18. In Petrovski v Nasev; The Estate of Janakievska, I wrote, at [89], referring to Pates v Craig & Anor; The Estate of Cole, that a solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the will-maker.
19. In this case, as has been read, Mr Stuart did seek the opinion of Dr Guerin who provided an opinion, initially, albeit one which was brief and unexplained. Subsequently, he confirmed his earlier opinion.
20. Furthermore, I have used as a guide, in the consideration of Mr Stuart's evidence, the contemporaneous correspondence and in this he expressed the view that the deceased had capacity.

Testamentary capacity

1. The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory but is derived from the caselaw. Nor does the Court adhere to the language of testamentary capacity in the caselaw as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. Furthermore, how the elements would be regarded as having been established, in a given situation, must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.
2. Before proceeding further, it is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."
3. ("Inofficious" in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker's bounty: McNamara v Nagel [2017] NSWSC 91, per Robb J, at [263].)
4. Thus, the test for testamentary capacity should be understood in the context that it is time, situation, person, and task, specific, that is to say, by a consideration of the particular will-maker, suffering from her, or his, particular medical, or mental, conditions, in the particular situation. The degree of complexity of the will-maker's affairs and her, or his, testamentary intentions, directly affects the level of cognitive function required to make a testamentary instrument. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554, at 109.
5. In regard to burdens and presumptions, one needs, also, to remember what was more recently written by Leeming JA in Mekhail v Hana; Mekail v Hana at [168]: "I respectfully agree with what Justice Lindsay has written, extra-judicially, on this point: '… In the modern form of 'judge alone (case managed) trial' it is generally artificial, at least at a final hearing, to analyse a case in terms of a 'prima facie case' or dispositive 'presumptions'. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence. What is perceived to be 'law' upon an exercise of probate jurisdiction is often no more than a reflection of ingrained attitudes of mind about case management based upon established practice. One needs to approach talk of 'presumptions' and shifting 'burdens of proof' with respect, but critically. When the language of the law does not sit comfortably with actual practice, a re-assessment of law, practice and their interaction may be called for in order to bring them into line. This might be done relatively easily with an appreciation that a 'presumption' is not, in the current context, so much a 'legal rule' as a common 'inference' drawn from particular types of evidence. It is, after all, a 'rebuttable presumption of fact' even if hedged about by formalistic reasoning": G Lindsay, "The 'Why' and 'What' of 'Suspicious Circumstances' in Probate Litigation", paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.'"
6. Next, I repeat what Powell J stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707: "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows: 1. the onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the Court is bound to pronounce against the document; 2. this onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. the proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. a prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator; 5. the first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. where what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. a testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. a testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature. 9. unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. facts which may well cause suspicion to attach to document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; (c) where the testator executes the document as a marksman when he is not; 11. where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator is, as a general rule, conclusive evidence that he knew and approved of its contents; 12. the locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow… in which case His Lordship said: '…It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.' … 14. a duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; sanity is to be presumed until the contrary is shown. 15. facts which, if established, may well provide evidence to the contrary include: (a) the excusion of persons naturally having a claim on the testator's bounty; (b) extreme age or sickness or alcoholism; 16. in relation to the former of these two matters, however, it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker, the following passage appears: '… the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the Will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.' 17. however, while extreme age or grave illness will call for vigilant scrutiny by the court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property." [Citations omitted]
7. In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 565-566, stated: "If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence - in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand…. It must be borne in mind that the absolute and uncontrolled power of testamentary disposition conceded by the law is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself. If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right."
8. At 568-570, Cockburn CJ referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117, at 290-291, where Erskine J had delivered the judgment of the Court in the following terms: "… Their Lordships are of opinion, that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity."
9. In Banks v Goodfellow, the Court referred to some American authorities. The first was the case of Harrison v Rowan (1820) 3 Washington at 585, where the Court, after referring to the three usual aspects which the law requires, wrote: "It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property at will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new."
10. The issue was taken up in the next case referred to, Den v Vancleve (1819) 2 Southard, at 660, where it was stated: "By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into nature of a rational, fair and just treatment."
11. Another case was also referred to, Stevens v Vancleve (1822) 4 Washington at 267, (which has been referred to by Powell J, as he then was, with approval in Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep)) where it was said: "He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and in his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and figure of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator?' as this: Had he a disposing memory? Was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?"
12. Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters. Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect.
13. This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.
14. As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr … referred in this context to the three 'R's' adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr … emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other."
15. White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], wrote: "The question of testamentary capacity is not whether the deceased did bring to mind her property and those who might have claims upon her, and did evaluate the respective claims on her testamentary bounty, but whether she was able to do so (King v Hudson [2009] NSWSC 1013 at [51]). That question must be answered in the context of the particular will in question (Re Estate of Church [2012] NSWSC 1489 at [52]-[55] and cases there cited)."
16. As was written in Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280, at [40], by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory….". Thus, comprehension and appreciation of the calls on a will-maker's bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he, or she, must have the capacity to decide for himself, or herself, between competing claims. That means that he, or she, must have the ability to inform himself, or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.
17. Henry J put this succinctly in The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, at [100]: "The question is not whether a testator knows they are excluding someone who has a claim, but whether a testator was, at the time, capable of recollecting who they were, understanding their respective claims and deliberately forming an intelligent purpose of excluding them from any share of their property." (Omitting citations)
18. Thus, capacity is not a test of memory, but rather, a test of disposition; it is the soundness of the will-maker's ability to dispose that concerns the Court. The issue is not so much her, or his, ability to remember details, but the soundness of her, or his, ability to decide how assets are to be divided: Frizzo v Frizzo [2011] QCA 308 at [24].
19. A prima facie case of testamentary capacity will only be displaced if there is evidence that the deceased's mental facilities had been so affected as to make her, or him, unequal to the task of disposing of her or his property: Pates v Craig [1995] NSWSC 87 at 4 (Santow J).
20. In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at 289-290, Gleeson CJ said: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter."
21. In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig, at [65]: "It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question."
22. In Carr v Homersham, Basten JA wrote at [47]: "To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the Court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the Court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, 'a grave matter'. A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity."
23. I should also refer to Bailey v Bailey, at 570-572, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant: "… 5. A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. 6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances 7. As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries… (b) the exclusion of persons naturally having a claim upon the testator… c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit… 8. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof 9. To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property…"
24. The statement of principle in Banks v Goodfellow has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449, at [82] and [66]. It has also been described as the "classical exposition": I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co), at [306]).
25. Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566: "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.'" [Footnotes omitted]
26. In Re Griffith; Easter v Griffith, at 290-291, the Court considered it a grave matter to invalidate a will: "The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight, above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind. … Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
27. Kirby P articulated, at 295, this principle as follows: "In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."
28. I have also found the following passage in Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [74]-[75] (Poon J), useful to remember: "… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. 'Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough': John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66: 'Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.' Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will."
29. In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263, wrote that, to have capacity, the will-maker must: "... [have] a mind... of sufficient memory and understanding to know generally the state of his property (I use the word generally, because you have no right to expect from a man... a specific and accurate knowledge of every atom of his property... [But] if a man has six children, and... thinks he has only five... you could hardly then say he is in a proper state of mind to dispose of his property."
30. In Read v Carmody [1998] NSWCA 182, Powell JA, (with whom Meagher and Stein JJA agreed), wrote (at 4) that a testator or testatrix "is aware, at least in general terms, of the nature, and extent, and value, of the estate".
31. In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J noted at [49]: "In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing "the extent" of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life."
32. In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained, at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.
33. The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, and by White J in D'Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333, at [95].
34. In Frizzo v Frizzo, Muir JA (with whom McMurdo P and White JA agreed), at [53], stated: "A testator may not need to know the exact address or precise current value of land he owns or other matters of detail but it is necessary to show that the testator is able to differentiate between his assets to a sufficient degree to satisfy the court that he is substantially aware of what he 'does and doesn't own' and its general value. Kerr v Badran does not absolve a party propounding a will from proving that the testator knew the nature and extent of his assets."
35. In In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his "mind should be free to act in a natural, regular and ordinary manner". Dixon J cited these observations with approval in Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.
36. In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs, at [97]; Brown v Wade [2010] WASC 367, at [95]-[96].
37. In Re Matiasz [2017] VSC 677, Zammit J set out a useful summary of the principles relating to capacity in elderly will-makers, at [25]-[29]: "the ability of a testator to make his or her will may fluctuate. As Santamaria JA recently observed in Veall: 'A testator who is aged and infirm may suffer from dementia or some other form of impairment. But, if such a testator has lucid intervals, the inquiry must be directed to whether the will was made in such an interval.' A testator need not have perfect mental balance and clarity in order to have testamentary capacity. Rather, testamentary capacity requires the testator be of sound mind, memory and understanding. … What is relevant is the testator's capacity to 'remember, reflect and reason'; the first as to the relevant property and those who have claims upon it; the second as to the relative weight of their claims; and the third so that 'he can judge, having regard to his assets, how far, if at all he should give effect to them'. In each case, it is not necessary that the testator has actually remembered, reflected and reasoned, only that he or she has the capacity to do so. Further, the test does not require the possession of these faculties to the highest degree, only to a sufficient degree. Indeed, even where a testator is of unsound mind, it may be possible to show that the will was made in a lucid interval. In relation to the need to understand the nature of the act and its effects, what is required is an understanding of engagement in a testamentary act. In other words, a testator must be aware in general terms of the nature, extent and value of the estate over which he or she has a disposing power. Old age and infirmity does not, by and of itself, establish want of capacity. Nor does extreme ill health, including the onset of dementia, although these may require the propounder of the will to provide evidence of testamentary capacity. Medical evidence as to whether a person has testamentary capacity may be useful, but the question is ultimately a practical one, to be determined by considering all the facts of the case. As Lindsay J put it, in Estate Sue, the 'essential question, in deciding whether a particular document should be admitted to probate, is whether, on the whole of the evidence, the Court is satisfied that the document was the last will of a free and capable testator. That decision can be, and ordinarily is, made with the benefit of evidence extrinsic to the document itself, including evidence as to the provenance of the document.' The important point is that the test is a legal rather than a medical one" [footnotes omitted].
38. Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the will-maker's mental state did not influence the Will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. However, as Dixon CJ wrote in Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67, at 453: "… that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."
39. I also note that in Bool v Bool [1941] St R Qd 26, at 39 (Full Ct, Macrossan SPJ), it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation."
40. However, whilst that may be a summary of the principle, I prefer to identify the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks - Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13-30]: "A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside. The testator's feebleness of body or mind may be relevant to knowledge and approval." [Citations omitted]
41. In Bull v Fulton, at 341, Williams J noted: "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants"
42. Yet, Sir James Hannen, over 140 years ago, in Boughton v Knight (1873) LR 3 P&D 64, at 66, wrote: "By the Law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his Will, however much we may condemn the course he has pursued."
43. More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]: "[Counsel for the appellants] had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what [the testator] should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why [the testator] disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of [the testator] excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator's soundness of mind, and not to general questions of perceived morality."
44. Thus, whilst an explanation for a dramatic change in testamentary intention, such as the complete disinheritance of some of his children, may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.
45. As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time he, or she, gave instructions for the will, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see, Hardingham, Neave and Ford, at [308].
46. Thus, it would be necessary to establish that the Will, as executed, accords with the instructions given by the will-maker at the earlier time and the principle does not apply if there are material differences between the instructions given and the Will prepared.
47. In this case, affirmative satisfaction of the testamentary capacity of the will-maker at the time the 2012 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.
48. Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J).
49. Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at s19 (Lam VP).
50. I should refer to Key v Key, at [97] - [98], in which it was said: "The burden of proof in relation to testamentary capacity is subject to the following rules: i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity. ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity. iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless. … Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges."
51. As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2), at [65] (Hodgson JA; Young JA and Bergin CJ in Eq agreeing): "The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."
52. It was also aptly put in Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh, Ian M. Hull and Pamela R. Champine, "Assessment of Testamentary Capacity and Vulnerability to Undue Influence" (2007) 164 The American Journal of Psychiatry 722, at 722: "Testamentary capacity is a construct rooted in both the legal and medical domains, thus inviting a collaborative approach to its definition and assessment. Challenges to testamentary capacity are made on a legal basis, and the judge remains the final arbiter. However, the evidence to support a challenge may be informed by the assessment of a medical expert."
53. Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case.
54. In Parker v Felgate (1883) 8 PD 171; [1883] UKLawRpPro 41, a testatrix gave solicitors instructions for her will in July. She ceased to have testamentary capacity in late August. On 29th August, she executed the will drafted by her solicitors in accordance with her instructions. She died on 2nd September. The executors sought to propound that will. Their claim was opposed by the testatrix's next of kin on the grounds that the will was not duly executed, lack of testamentary capacity at the time of execution and want of knowledge and approval. The case was tried by Sir James Hannen P with a jury. In the course of summing up, Sir James Hannen directed the jury as to the applicable law. He said, at 173-174: "If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, 'I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out'… That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked, 'Do you wish to leave So-and-So so much,' or do you wish to do this (as the case might be), she would have been able to answer intelligently 'Yes' to each question? That would be another condition of mind. It would not be so strong as the first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, 'I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;' it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient."
55. Thus, the primary occasion for assessing capacity is the date of the execution of the contested will. However, if by the date of execution, testamentary capacity is absent, the rule in Parker v Felgate allows for the assessment to be made on a secondary and earlier occasion: In such circumstances, the Court can nevertheless have regard to whether the willmaker had testamentary capacity at the time when she or he gave the instructions to prepare that will. See also, Bailey v Bailey at 567 and 572.
56. The force of the rule in Parker v Felgate was recognised by the Court of Appeal in Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3, at [5]: "… Under the rule in Parker v Felgate if, when the instructions were given by a will-maker, that will-maker had testamentary capacity, the will can be valid even though that testamentary capacity had been lost by the time of execution.[13] In Parker v Felgate the will-maker had given instructions for her will in July 1882 but ceased to have testamentary capacity by the date she executed the will on 29 August 1882. She died shortly after. The jury was instructed that the will was valid if there was testamentary capacity at the time the instructions were given, and at the time of signing the will-maker was capable of understanding and did understand that she was engaged in executing the will for which she had given instructions."

Knowledge and Approval

1. In addition to showing that the deceased had testamentary capacity, Margo, as the propounder of the 2012 Will, must also show that the deceased knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton, at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945, at [45] per Lewison J.
2. Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. … Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."
3. The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour said (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
4. In Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879, Peter Gibson LJ referred to circumstances in which the court's suspicions might be aroused by the nature of the testamentary provisions and continued at [33]: "What is involved is simply the satisfaction of the test of knowledge and approval, but the court insists that, given that suspicion, it must be the more clearly shown that the deceased knew and approved the contents of the will so that the suspicion is dispelled. Suspicion may be aroused in varying degrees, depending on the circumstances, and what is needed to dispel the suspicion will vary accordingly. In the ordinary probate case knowledge and approval are established by the propounder of the will proving the testamentary capacity of the deceased and the due execution of the will, from which the court will infer that knowledge and approval. But in a case where the circumstances are such as to arouse the suspicion of the court the propounder must prove affirmatively that knowledge and approval so as to satisfy the court that the will represents the wishes of the deceased. All the relevant circumstances will be scrutinised by the court which will be 'vigilant and jealous' in examining the evidence in support of the will (Barry v Butlin (1838) 11 Moo PC 480 at p. 483 per Parke B.)."
5. In the same case, Chadwick LJ summed the matter up at [65]: "The question is whether the court is satisfied that the contents do truly represent the testator's testamentary intentions."
6. In Estate Rofe [2021] NSWSC 257, Lindsay J, at [129(b)] described the concept as "directed (upon an assumption of testamentary capacity) to whether the testator truly knew the terms of a will and intended to give effect to them".
7. Traditionally, a two-stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.
8. More recently, however, the single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [22], is considered more appropriate: "Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in the unreported case of Crerar v. Crerar, cited and followed by Latey J in Morris [1971] P 62, 78E-G, namely that the court should 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'"
9. In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana, at [165] (Leeming JA).
10. In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, commented in the circumstances of the case before the court at [12] - [14]: "As for want of knowledge and approval of the contents of the 2007 Will, the scope of the inquiry indicated by a long line of authorities gives rise to other questions distinct from lack of mental capacity to make the will: Wintle v Nye [1959] 1 WLR 284; Fuller v Strum [2001] 1 WLR 1097; Gill v. Woodall [2011] WTLR 251. The relevant questions to ask in this case are- i) Do the circumstances of the 2007 Will arouse the suspicions of the Court as to whether its contents represent the wishes and intentions of the Deceased as known to and approved by her? The judge said 'Yes.' ii) Has scrutiny of those circumstances by the court dispelled those suspicions? The judge said 'No.' In answering those questions in a particular case the court has to consider and evaluate the totality of the relevant evidence, from which it may make inferences on the balance of probabilities. Although talk of presumptions and their rebuttal is not regarded as specially helpful nowadays, the courts realistically recognise that, for example, if a properly executed will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the grounds of either lack of mental capacity or want of knowledge and approval than in a case where those prudent procedures have not been followed. I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death."
11. I should also refer to the judgment of Lewison LJ in Simon v Byford, at [47]: "When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for the requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010] EWCA Civ 840; [2011] Ch 270 at [25]. Normally proof of instructions and reading over the will will suffice: ibid at [25]. The correct approach for the trial judge is clearly set out in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380. It is a holistic exercise based on the evaluation of all the evidence both factual and expert."
12. In Romascu v Manolache, at [205], I wrote that the factors the Court may look at when considering whether circumstances that excite suspicion exist, include: "…the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense."
13. In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, had observed: "The rule in Barry v Butlin, Fulton v Andrew, and Brown v Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." [Footnotes omitted]
14. Davey LJ, at 159-160 wrote: "It must not be supposed that the principle in Barry v Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed." [Footnotes omitted]
15. These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, Leona Johnson (Deceased) [2015] SASC 51, at [7].
16. In Tobin v Ezekiel, Meagher JA put it as follows: "Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will: Barry v Butlin ...; Gregson v Taylor ...; Re Fenwick ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non‑exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew ...; Tyrrell v Painton ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton ...; Nock v Austin ...; Fuller v Strum ...; Dore v Billinghurst ..."
17. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec'd) [1950] 2 All ER 117, at 121.
18. As stated by Kunc J in Ng v Lau [2020] NSWSC 713 at [81]: "The relevant circumstances are only those that relate to the preparation of the will in question, its intrinsic terms and the circumstances surrounding its preparation and execution: Alan John Hyland v Laura Healy [2013] NSWSC 1513 at [25]. Circumstances both antecedent and subsequent do not have bearing on the determination of whether or not the suspicion is made out."
19. Finally, I should mention Paraskov v Paraskos [2002] WASC 109, in which case, Pullin J, at [50] observed: "Because the person cannot read the will, does not mean that it is invalid. The question is whether the deceased understood what the contents of the will were before it was signed. In some cases this will be established by reference to the instructions which were given before the will was signed; in others by the fact that the will was accurately translated into language the testator understood before it was signed; and in others it will be satisfied by proof that the contents of the will, although not translated, were explained to the testator in a way which accurately informed the testator what the will provided for. See In the Will of Steward (supra); In the Will of Clayton (1906) 8 GLR 516; Parker v Felgate (1883) 8 PD 171 at 173 per Hannen P; Perera v Perera [1901] AC 354; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; and Re Flynn [1982] 1 WLR 310 at 320."
20. It is the will-maker's understanding that is decisive. The sufficiency of evidence going to whether she, or he, knew and approved the contents of the Will depends upon the circumstances of the case. As was put by Lindsay J in Estate Rofe, at [152] - [154]: "Although the validity of each testamentary instrument under challenge must be considered on its own merits, and any circumstances exciting suspicion about the testator's knowledge and approval of the contents of a particular instrument must be considered upon a consideration of the question of its validity, the primary focus of any "suspicious circumstances" attending the deceased's wills in these proceedings is upon two main features: first, the nature and likely course of the deceased's cognitive impairment as a result of the vascular dementia from which he suffered and, secondly, the involvement of interested persons in preparation of the deceased's wills. Those factors, alone, sufficiently excite a suspicion (that the deceased may not have fully known and approved of the contents of his various wills) to require close scrutiny of all the circumstances in which each will propounded was prepared and executed. Where suspicious circumstances exist, for a court to be satisfied that a testator knew and approved the contents of a will it must be satisfied that the will reflects his or her "real" intention or his or her "true" will. The issue is not necessarily resolved by a finding that the testator read the will himself or herself before its execution. The strength of an inference of knowledge and approval that arises from the reading over of a will by, or to, a testator can depend on the complexity of the will. Where there are suspicious circumstances, a finding that a testator did or did not know and approve of its contents may require an assessment of the degree of suspicion, the capacity of the testator to understand its contents, and whether the testator both knew and approved of its contents such that it represents his or her "real" testamentary intentions: Stojic v Stojic [2018] NSWCA 28 at [133]-[136]. To establish a testator's knowledge and approval of the contents of a will, it is not necessary to establish that he or she understood each and every clause of the will. It is sufficient to establish that the testator understood the practical effect of the central clauses in the instrument, including the dispositions of property effected by the will and implications for the estate of the appointment of those who are to administer it: Gerovich v Gerovich [2021] WASC 77 at [36]."

Determination of Probate Claim

1. I am of the view that the evidence, overall, suggests that the deceased, in this case, in late December 2011 and until July 2012, was in the mild dementia stage, although there were occasions when the symptoms appeared to be referable to the moderate stage.
2. I have paid close attention to the evidence of Dr Cetiner. Unlike some other probate cases in which experts called provide an opinion on the deceased's capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence in the present case was given by doctors, and others, who had contact with the deceased. Each of Dr Cetiner, Dr Guerin and Ms Christopherson, whose evidence, or documents are relied upon, had the advantage of having personally carried out interviews, examinations and clinical assessments of the deceased. The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe, and assess, the deceased first-hand: Nicholson v Knaggs, at [39] (Vickery J).
3. However, in the present case, it is clear that none of them was required to undertake any contemporaneous comprehensive assessment of the deceased to satisfy himself or herself of the deceased's testamentary capacity. This is not of great significance since "[t]he Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance": Nicholson v Knaggs, at [41].
4. Furthermore, in the present case, there was direct, contemporaneous, evidence from both the deceased's accountant and from her solicitor who took instructions from the deceased, who drafted the 2012 Will, read the 2012 Will to her, and who received instructions from the deceased explaining why she made the provision for Margo that she did in that Will. What he said, and wrote, in 2012, was more significant, from an evidentiary point of view, than some of what he said in 2021. The contemporaneous documents made by each of them are compelling.
5. Mr Brough's evidence withstood cross-examination. I have no hesitation that he was independent, honest, and, in giving his account, did so impartially.
6. I acknowledge that some of Mr Stuart's oral evidence was inconsistent with what he had written and what he had said at the time the instructions for the 2012 Will were given and when the Will was executed.
7. The instructions that the deceased gave in February 2012 as to her testamentary intentions were clear and unequivocal and she maintained those testamentary intentions when she gave instructions to him to prepare the Will, and confirmed them again when she conferred with Mr Stuart at the time she executed the Will a few months later.
8. The transcript of some of what the deceased said to Mr Stuart about the Will was clear. This is not a case where her instructions to her solicitor changed in the months prior to, or at, the time she executed the 2012 Will. I am satisfied that she did know and approve of the terms of the Will that she signed.
9. In my view, the detailed, contemporaneous notes of Mr Brough and the correspondence written by Mr Stuart, are consistent and they more accurately depict the view taken by each of them going to the deceased's capacity than any estimate of her cognitive functioning by Dr Cetiner, who saw her on only two occasions and who was not concerned about her testamentary capacity. This is not a case of "extreme old age", the deceased being 66 years of age when she executed the 2012 Will, living at home, and looking after herself, and, for the most part, being independent with activities of daily living, although with help from, particularly, Margo.
10. Nor is this a case in which the deceased's estate, or the terms of the 2012 Will, were complex. She seemed to have known of the property that she had, including that part of it was held in a Trust. Whilst she may not have known the precise values of all of her property, she had a sufficient idea of it as it was explained to her by Mr Brough and Mr Stuart.
11. I have found that in mid-to-late 2011 and in 2012, there were signs of dementia. However, as was accepted by senior counsel for Susan, the presence of cognitive decline, or dementia, does not necessarily preclude, and is not necessarily incompatible with, testamentary capacity: Tcpt, 4 March 2021, p 400(04-07).
12. The deceased, in 2012, considered that she should leave her only substantial assets, being "Arakoon" and "Hylands", together with associated property, to Margo, who had been a loving and caring daughter throughout their joint lives and who, for about 7 years prior to the making of the 2012 Will, had worked, on a fulltime basis, with the deceased, in maintaining the farms, and the deceased's lifestyle, at great personal, as well as financial, hardship. The deceased's wish to stay in her home and work on the farms despite the death of Richard, may have been unreasonable (according to some of her children), but it was Margo who enabled that wish to be fulfilled.
13. Whilst she continued to maintain her relationship with the deceased, Susan had returned to her life, in Sydney, with Andrew, after the death of Richard in 2005, and did not play the same role, in the life of the deceased, that Margo had thereafter. Belinda and Emma did not, by 2012, play any significant role in the deceased's life and in the case of Emma, had been involved in a dispute with her.
14. I do not see any basis for doubt that the deceased knew that those with claims on her bounty were her four children. She was also made aware of the 2006 Will and that she had, then, divided her estate, equally, between her four children.
15. Because it has been raised in relation to Susan, it is important to note that there is no requirement that the assessment of the validity of a Will involves a detailed inquiry into the reasons why the will-maker has made a significant change at the time the will is executed. Whilst apparently rational changes to a prior will may support a claim of capacity and apparently irrational changes may undermine it, the Court should not, in a Probate suit, substitute the examination of testamentary capacity with a detailed examination of moral obligation.
16. In this regard, even if providing for Susan, with whom she had a close and loving relationship, as a residuary beneficiary, with Belinda and Emma, with whom she did not, was unreasonable, it does not mean that the deceased lacked capacity.
17. In this case, it is clear from the instructions that the deceased considered the claims on her bounty of each of her children. As she stated it, she considered that it was Margo to whom she owed the greatest obligation. The solicitor's contemporaneous evidence on this topic was confirmed by at least one other independent witness. Whilst it may be accepted that there was a change in the deceased's Will, this was not a case in which it was an unexplained change.
18. The 2012 Will is also consistent with statements made by the deceased to other persons, such as Mr Brough, to Mr Stuart and to the registered nurse, Ms Christopherson. Her statements to each reveal the deceased's state of mind which was consistent with the intentions reflected in the 2012 Will.
19. Capacity to make a will is to be assessed having regard to the particular will made. At the time she gave instructions for the 2012 Will, and at the time she executed that Will, even though there may have been some degree of cognitive impairment, which seemed to fluctuate, the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property; there was no suggestion of psychopathology affecting her contact with reality; she had an intact intention of how, and to whom, she wished to dispose her assets on her death; and she understood the nature of the changes she was making. Judged at both times, the 2012 Will was not irrational on its face. In this regard, the apparent rationality of the 2012 Will, from the deceased's perspective, is an element of my assessment of capacity. However, I do not conclude that the deceased had capacity merely because the 2012 Will was rational from her perspective.
20. The concept of knowledge and approval is concerned with the contents of the 2012 Will, and whether they expressed the deceased's intentions, and not with the process by which the testamentary intention was formed. In addition, any relevant suspicion must be one that casts doubt on whether the deceased knew and approved the contents of the 2012 Will and must relate to the preparation and execution of that Will. The transcript of, at least part of, the discussion at the time the deceased made the 2012 Will demonstrates that the deceased knew what she was doing when she executed that Will. I am satisfied that it reflected her testamentary intentions. That Mr Stuart read the Will aloud to the deceased is also a relevant fact in this aspect of the case.
21. Applying the vigilant and careful scrutiny appropriate, having carefully considered all of the evidence, lay, legal and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith, "a grave matter", I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(1) of the Evidence Act 1995 (NSW) that the deceased did have testamentary capacity at the time she gave instructions for, and then executed, the 2012 Will.
22. There is no evidentiary support that Margo participated, in any meaningful way, in its preparation or execution. Her conduct, in saying to the deceased that she would be prepared to give up "Hylands" in order to "keep the peace", a matter rejected by the deceased, confirms that she was not endeavouring to protect her own position by involving herself in its preparation.
23. I am also affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw or, now, s 140(1) of the Evidence Act, that the 2012 Will expressed the mind of the deceased, that she understood what she was doing and its effect, and that it truly represented her testamentary intentions. Margo has proved, affirmatively, even without the benefit of a presumption of knowledge and approval arising from due execution, that the deceased knew and approved of the contents.
24. On the whole of the evidence, any doubts that may exist are not sufficiently substantial to prevail over the evidence that tells in favour of the deceased being of sound mind, memory and understanding at the time of execution of the 2012 Will and knowing and approving of its contents.
25. In view of this conclusion, Margo's Cross-Claim will be dismissed. It is not really necessary to refer to it further in light of the settlement of the claims of Belinda and Emma. Even if my conclusion about the validity of the 2012 Will is wrong, she is now entitled to receive three quarters of the deceased's estate as a result of the settlement of Belinda's and Emma's claims subject, of course, to satisfying the payments to be made to each of them.
26. In my view, she would not be able to establish that an order for additional provision should be made for her. I shall, however, have more to say about her competing claim upon the bounty of the deceased in determining Susan's claim for a family provision order.
27. I should make clear that some of what follows by way of findings, where relevant, has also been considered in relation to my findings in the Probate proceedings.

Susan's claim for a family provision order

1. In view of the conclusion reached regarding the validity of the 2012 Will, I must now turn to Susan's family provision claim. In doing so, I shall also refer to Margo's competing claim, financial and otherwise, upon the deceased's bounty as part of the evidence in the family provision claim.
2. Susan maintained a close, mostly harmonious and loving relationship with the deceased throughout their joint lives. She would return to visit on average once a month and would speak to the deceased, by telephone, regularly. Generally, she also visited the deceased every year for her birthday, Christmas, Easter and Mother's Day.
3. During oral submissions, senior Counsel for her, accepted that the evidence made clear that Susan had been completely financially independent of the deceased for approximately 40 years: Tpct, 3 March 2021, p 362(05-08).
4. I next turn to Susan's current assets and liabilities: Assets Superannuation $189,000 Cash Account $ 11,500 Shares and Property Trust $154,000 Total Assets $354,500

Liabilities Credit Cards $ 3,503 Legal Fees $113,112 Total Liabilities $116,615

1. It can be seen from this summary that almost all of her liabilities relate to the costs of these proceedings. Whether she recovers any, or all of those costs, is yet to be determined.
2. In cross-examination, Susan accepted that her financial position had improved by about $200,000 between May 2019 and February 2021: Tcpt, 24 February 2021, p 94(41-46). Since May 2019, Susan had purchased $40,000 in shares in public companies.
3. Susan was asked about a credit to an account of $1,200 on 1 September, labelled 'Fess, September'. Susan stated that: "That refers to Scott Pape, I think, the money investor, and the fact that he encourages you to put away money for spending, savings, credit card, et cetera, so every… time I get paid I take money out of his account and put it into NetBank Saver and then when I need to pay off the credit card or pay for swimming lessons or music, I think withdraw it and I transfer it back": Tcpt, 24 February 2021, p 96(29-36).
4. She accepted that this was "a transfer by way of just saving money [and] putting money aside for expenses" and said "I can't access that bank account at the teller, so… it's a bit like a security guard": Tcpt, 24 February 2021, p 96(38-41).
5. For the 5 years prior to October 2020, Susan was earning about $97,000 a year: Tcpt, 24 February 2021, p 99(10-12). Her gross annual income at the date of hearing was approximately $84,000. However, Susan plans to start a new position as soon as practicable, working three days per week, in which her annual income will be approximately $62,000.
6. Susan asserted that she had a number of "needs". She sought, by way of provision, a capital sum of $1 million: Tcpt, 24 February 2021, p 101(48)-102(01). Her so-called "needs", when added up, required a much greater sum by way of provision.
7. She stated that she needed a capital sum to provide an independent income stream which would enable her to work part-time or flexible hours, so she is able to spend more time with her children.
8. As a speech pathologist, she anticipated that, in future, she will continue to incur significant irregular expenses attending continuing education conferences, which often involve travel. To complete her PhD, Susan asserted that she will require a sum of $280,000, made up of $10,000 in fees and $270,000 in foregone wages over the course of the 3 years it would take to complete the course.
9. Susan also maintained that she needed a home of sufficient size for her family. She currently lives in Andrew's house, in Stanmore. According to her, whilst marketed as a 4 bedroom home, it is really only a 3 bedroom home, with the fourth bedroom measuring 2.4m x 2.8m. She stated: "This is insufficient space for a family of 5, especially as my children get older and want their own bedrooms and space. I would also require my own study if I was to complete my masters and PhD. My study is currently in the lounge room and I have no space for my books. Instead I have ten boxes of unpacked books and insufficient storage space, with only a single car garage. To indulge my passion for baking, I would also need a bigger kitchen with a second oven, a dishwasher, more bench space and ideally an al fresco area with a pizza oven".
10. Susan stated that she also needed financial security and security in her tenure in her home, in the form of a capital sum to be used as a contribution towards purchasing a bigger home jointly with Andrew, or to enable the financing of renovations to his home in exchange for having her name placed on the title.
11. When asked, in cross-examination, why Andrew, did not "fix up his own house", Susan stated, "I can't answer that. I can only say it's his house, I would like to have some financial security and contribute to our relationship, and the house we live in. My name isn't on the title of the house": Tcpt, 24 February 2021, p 102(47)-103(01).
12. In cross-examination, Susan also stated that she has not, to date, had any conversations with him about how, if she received a capital sum, it would be spent on the house in which they currently live: Tcpt, 24 February 2021, p 103(03-29).
13. In addition, during oral submissions, senior Counsel accepted that it is not a deceased person's obligation to provide funds to an eligible person to improve a property that is not her own but in which she lives: Tcpt, 3 March 2021, p 367(41-45).
14. Susan stated that she had been unable to accumulate sufficient superannuation to support herself in retirement and requires a capital sum to provide her with income in retirement and a buffer against contingencies.
15. However, in cross-examination, she accepted that she has another 20 years before she is likely to retire, during which she will continue to accumulate superannuation: Tcpt, 24 February 2021, p 103(39-44).
16. Susan also sought additional funds to pay for her three children to attend private schools, which she estimated will cost at least $540,000 plus inflation: Tcpt, 24 February 2021, p 104(25-30). During cross-examination, Susan stated that she wanted an additional $300,000 (on top of the $1 million claimed) to put towards these fees: Tcpt, 24 February 2021, p 104(32)-105(05).
17. In cross-examination, Susan stated that Andrew currently pays for school fees but that she would like to contribute to her children's education: Tcpt, 24 February 2021, p 105(10-12). She gave no evidence that he would not continue to do so.
18. As has been stated, Susan is in a de facto relationship with Andrew who is the father of her children. According to her, Andrew has always insisted that they keep their finances separate.
19. Susan stated that, in return for living in Andrew's house, she contributes her entire salary to paying household and childcare expenses and, consequently, has not been able to save any money.
20. In cross-examination, Susan stated that Andrew made some contribution to family expenses: "he pays some bills, he pays for some of the things the children need like soccer boots, he pays for some insurance": Tcpt, 24 February 2021, p 93(31-36).
21. When asked whether Susan had an agreement with Andrew about who pays for what, Susan stated, "No, we have separate finances": Tcpt, 24 February 2021, p 93(38-40). She also stated "I [use] my wage to pay for things, and then I guess he use[s] his wage to pay for things as well": Tcpt, 24 February 2021, p 94(02-04). When asked why Andrew does not contribute in a more meaningful way to the expenditure of the children, Susan stated: "I think he does. I guess we just pay for different things": Tcpt, 24 February 2021, p 94(09-11).
22. Andrew has an annual net salary of about $157,504, gross before tax. He also received dividends from Lighting Australia Pty Ltd of $204,000 in July 2020 and $102,000 in March 2020.
23. Andrew was said by Susan to have the following assets: Superannuation AMP $ 736,370 Bank/cash accounts Cash/Term Deposits $1,623,305 Lighting Australia P/L 33% ownership $1,000,000 Real property 46 Percival Rd Stanmore $2,514,000 Personal property Estimated $ 128,000 Furniture Estimated $ 35,000 Credit card $ (6,970) TOTAL $6,029,705

1. Susan stated that Andrew planned to retire at age 60. Susan would also like to retire at around age 60, so she can help to look after any grandchildren.
2. Susan acknowledged that, if their relationship ended, or if Andrew died, she would have a significant claim against him, or his estate, either for a property adjustment order under the Family Law Act 1975 (Cth) or for a family provision order under the Succession Act.
3. I accept, however, that whilst a person in Susan's circumstance has the financial resource of those potential claims, she "shouldn't necessarily be beholden to [her] partner or spouse for providing [her] with a fund in circumstances where a mother has a large estate, and where there is no suggestion of any… disentitling conduct to make it that no provision ought to be made for her out of the estate": Tcpt, 3 March 2021, p 387(28-34).
4. Susan's claimed "needs" demonstrate a problem that occurs in many cases in which a family provision order is sought. The problem is that there is little consideration given to the basis of the claimed "needs" - namely the obligation of the deceased to the applicant to meet the perceived needs. Formulating "needs", such as renovation costs and the purchase of a pizza oven, private schooling for her and Andrew's children, and the completion of a PhD which may be characterised as an extravagant "wish list" of wants rather than genuine "needs", are counter-productive as they may divert the Court's attention from the real "needs" of the applicant.
5. In addition, the "need" should be substantiated in some way. By way of example, a claim for an order which includes a capital sum to build up superannuation entitlements should ordinarily have a solid foundation in the evidence.

Margo's competing claim

1. Margo maintained a close, harmonious and loving relationship with the deceased throughout their joint lives.
2. In about July 2005, Margo moved from Sydney to "Arakoon", to live with the deceased. Initially, she took compassionate leave from her middle-executive position to stay with the deceased to help her adjust after the death of Richard, but subsequently resigned. As there was a drought at the time, they had to work together on the farm to keep the stock fed.
3. Initially, Margo intended to move back for a period of one year to help. However, after about one year, whilst she did not have a specific conversation about staying on at "Arakoon" with the deceased, it was assumed that she would do so.
4. The deceased expressed her gratitude to Margo for her help during this difficult period, saying, later, "I have enjoyed working with you; we have a good time together. I'm glad that you came home to Arakoon".
5. Margo's work on "Arakoon" was labour intensive and included fencing, animal husbandry, marking sheep, vaccinating, drenching, shearing and feeding the stock. As the deceased never used a computer, Margo was also in charge of the administrative running of the farm including preparing the accounts, paying insurances, creating tax invoices, doing banking, the payroll and the like.
6. Margo paid, personally, for the internet at "Arakoon" at a cost of $55/month. The telephone bills were shared, in a 60% share by the business and 40% personally by the deceased. Margo was provided with a car by the business in 2010 and, until 2014, she paid for all fuel.
7. It was accepted that Margo had made a significant financial, and personal, sacrifice in returning to "Arakoon". Financially she had held a responsible position at her employment and was highly regarded, earning a gross salary of $72,000 per annum. She might have expected significant advancement in the subsequent years if she had stayed. Her income, when working at "Arakoon" dropped to $20,000 per annum ($5,000 being paid per quarter). Any profits made by the Trust which operated the farming business - beyond the $20,000 paid to Margo up to 2012 and the $40,000 after that time, and whatever the deceased received - was used to pay for improvements to the properties and the farming machinery and equipment.
8. On the personal side, the farming work was hard and made any social life difficult.
9. As the years went by, it became necessary for Margo to spend more and more time caring for the deceased, in addition to completing the farm work. The deceased said to her "Please do everything you can to keep me living here. I don't want to leave Arakoon. I want to stay in my home". Although there was some dispute about whether Margo "was there every day" or "was there very frequently" and how often she assisted the deceased with shopping, I am satisfied that she was the person, of all the deceased's children, who did the most for the deceased.
10. After 2008, Margo would drive the deceased to medical appointments and on any other occasion that she needed to go to Orange, or to anywhere other than Molong. Contemporaneous medical records record, in late December 2011, that the deceased "remains mostly independent with her living skills, but she is closely supervised by one of her daughters". (There was no dispute that the reference was to Margo.)
11. Margo also took over the care of Ron Copson - a long-standing, close family friend, and of Margaret Starr, Richard's sister, because the deceased was no longer able to do what she had been doing in this regard. (Margaret Starr lives alone in her home in Molong, 13 km from "Arakoon". She has a pacemaker, deteriorating vision and suffers from macular degeneration.)
12. In February 2011, Margo moved, on a full-time basis, into the house of her then de facto partner, Scott Miller, in Manildra. However, she remained as the deceased's primary carer and travelled 5 to 6 days a week to "Arakoon". In 2013, Margo and Scott were married.
13. It was not until 2013, that Margo sought help from Merilyn Ball to spend two days a week with the deceased, and subsequently, sought assistance from Baptistcare. The assistance that was provided eased the burden on Margo to some extent, without eliminating it completely.
14. Whilst the deceased was a resident at Prunus Lodge, Margo visited regularly and would take her mother out for lunch and on weekends. She would visit on most weekends, except on weekends when Susan and her family were visiting. As the deceased's condition further deteriorated, Margo received advice from staff that it would be better if she did not take the deceased out and that she should visit for shorter periods.
15. In oral submissions, senior counsel for Margo made reference to the fact that, despite having the opportunity to do so, Margo did not, at any point in the deceased's lifetime, encourage the deceased to make an inter vivos transaction of "Arakoon" or "Hylands" to her: Tcpt, 4 March 2021, p 398(43-45).
16. Since 2012, Margo's salary for managing "Arakoon" and "Hylands" has been $40,000 per annum (which is said to be less than the award rate for a farm manager). From 2006 to 2009, Margo did not have any time off for holidays and, from 2010 to 2019, she had one week off a year.
17. Margo's income for the financial year to 30 June 2020 was $43,286, comprising of salary and interest.
18. Margo's assets include: CBA Smart Access $ 666 CBA Goal Saver $219,005 CBA Netbank Saver $ 5,002 CBA Term Deposit $ 5,000 Essential Superannuation $218,220 Mazda 3 2011 $ 5,000 TOTAL $452, 894

1. Prior to 2013, Scott had been helping out at "Arakoon". However, in July 2013, Scott commenced paid employment on the properties. Since that time, Mr Miller has been paid a salary by the Trust of $33,600 per annum, which is slightly under the award rate. Margo states that Scott's contribution to the farm is in excess of the of the award rate for 'farm hand', as he is experienced in cropping and machinery maintenance. Mr Miller also undertakes contract harvesting work in Western NSW and Victoria for 4 months a year. Between 2013 and 2017, Scott received funds from the sale of sheep he ran in his grandfather's property. His income for the financial year to 30 June 2020 was $33,929, comprising of salary and interest.
2. Scott is said to have the following assets and liabilities: Assets CBA Smart Access $ 1,585 CBA Goal Saver $ 47,694 Prime Superannuation $ 35,563 24 Orange Road, Manildra $150,000 Holden Rodeo 1999 $ 4,000 Isuzu Truck 1984 $ 8,000 New Holland Header 1997 $ 45,000 TOTAL $291,843

1. However, in cross-examination, Margo accepted that, in her tax return for the year ended 30 June 2018, she had disclosed Scott's taxable income as $50,000. According to her, the difference between the $50,000 estimate in the tax return and the $33,600 figure in her affidavit was attributable to the sheep that Scott ran on his grandfather's property and his contract harvesting work: Tcpt, 2 March 2021, p 265(50)-266(04).
2. Any excess farm income after expenses, including salaries, is reinvested in capital improvements on "Arakoon" and "Hylands". Margo stated that the substantial amount of salary she had foregone over 14 years and, to a lesser extent, that Scott had foregone over the last 6 years, had been invested in capital improvements on the properties, which have added to the value of both "Arakoon" and "Hylands".
3. In cross-examination, Margo accepted that she made a number of errors and omissions in her affidavit of 29 January 2021, setting out her and Scott's current financial position, including: 1. the omission of home contents worth $114,000 in Arakoon: Tcpt, 2 March 2021, p 257(41)-258(09); 2. estimating the value of Scott's property at 24 Orange Road, Manildra as $150,000, despite it being insured for $320,000: Tcpt, 2 March 2021, p 258(38)-259(05); and 3. the omission of home contents worth $64,000 in 24 Orange Road: Tcpt, 2 March 2021, p 259(19-41).
4. Margo does not wish to sell either "Arakoon" or "Hylands", but wishes to continue farming both properties as she has for the last 15 years. However, in cross-examination, she accepted that, since 2013 (with the exception of 2017), the trust has made a loss: Tcpt, 2 March 2021, p 278(07-09). When asked what would occur if the trust reserves came to an end and the trust was still making losses, Margo stated "We could stop making improvements on the farm": Tcpt, 2 March 2021, p 278(29-30).
5. Margo stated that she had never thought about selling one, or both, of "Arakoon" and "Hylands": Tcpt, 2 March 2021, p 278(26-27). She believed that if either were sold, it would significantly reduce the revenue from current farming activities. She considered that there would not, necessarily, be a corresponding proportionate decrease in costs and that current diversification in farming activities would be reduced, making the business more susceptible to risks.
6. She said that if "Hylands", or part thereof, or part of "Arakoon" were sold, two workers would still be required to complete all farming activities and the properties would not generate sufficient income to support two salaries. She said to sell, and to then purchase another property would require significant capital.
7. Margo stated that if she was unable to establish her own farming operation, she would seek employment as a farm manager, at an average annual salary of $47,000. However, due to the drought, she maintained that finding work in the rural sector was extremely difficult. Furthermore, she believed that her lack of experience in managing external farm hands and not having references from a previous employer would put her at a disadvantage in finding work.
8. Margo also said that, as she continues to provide support and company for her aunt, she wishes to find employment within 100 km of Molong.
9. In those circumstances, Scott would also seek to find work as an unsupervised farm hand or manager, with an expected salary of $35,000-$47,000. According to Margo, his ability to find employment is likely to be constrained by his limited experience in managing the finances of a property. Whilst he could undertake contract harvesting, much of this work is located in Western NSW and Victoria. To have him do so, would seriously affect her family's quality of life and would require capital to purchase and upgrade harvest plant and equipment.
10. In cross-examination, Margo accepted that, from December 2020 to January 2021, Scott had conducted harvesting work on properties other than "Arakoon" and "Hylands", as well as conducting the harvests on those properties: Tcpt, 2 March 2021, p 261(37-48). She accepted that he is a "capable contract harvester" who is well regarded in the local community: Tcpt, 2 March 2021, p 262(21-25). He charges $100 per hour for time spent travelling and $250 per hour for time spent working.
11. Margo was asked about potential ways in which she could satisfy any obligation to Susan incurred in these proceedings. She stated that: 1. the only source of funds she has to satisfy any such obligation (other than selling "Arakoon" or "Hylands") is to use whatever is left of the cash funds in the deceased's estate and the proceeds of sale of stock, ($100,000): Tcpt, 2 March 2021, p 300(16-41); 2. after being reminded of the estate's interest in "Koranui", she stated that she has not had any conversations with her aunt about the sale of that property. Nor had she discussed her aunt's Will with her: Tcpt, 2 March 2021, p 253(13-20). When asked why she had not sought any income from the use of "Koranui" or had not included a reference to the receipt of any income from "Koranui" in the estate finances, Margo stated (and I accept) that, since 1980, "My aunt always paid all the expenses on "Koranui" and in return received all the income from "Koranui"": Tcpt, 2 March 2021, p 298(50)-299(10); 3. Margo also stated that she believes the Bank will not lend her any more money "because the [existing loan] is subject to [her] having both 'Arakoon' and 'Hylands': Tcpt, 2 March 2021, p 254(01-06); 4. Margo was unable to explain the amount of $251,600 that had been listed as "total other assets" in Exhibit P3 (Agribusiness Statement of Position for Margo Miller, provided to the Commonwealth bank) and whether this could be used to satisfy any potential obligation to Susan: Tcpt, 2 March 2021, p 256(01-04); and 5. Margo confirmed that Scott's property is vacant and that she has never raised the possibility of leasing it with him: Tcpt, 2 March 2021, p 264(41-43).

Viability of Operating Arakoon and Hylands Separately

1. Mr Ivey's report was the primary source of evidence, in these proceedings, as to the viability of operating "Arakoon" and "Hylands" separately. Currently, as stated, the properties are run in conjunction. Until about 10 years ago, cattle and sheep were run on both properties. In subsequent years, only cattle have been run on "Hylands", with the exception of fattening of lambs and surplus sheep bound for slaughter. In recent years, more emphasis has been given to cropping on "Hylands". As also stated, labour for the operation of the properties is provided by Margo and Scott.
2. Trust income from the farm's primary production activities varied greatly from 2012 to 2020, with a low of $107,578 in the financial year 2013 to a high of $304,000 in financial year 2018. Total expenses (excluding owner operators' wages) followed a similar pattern to income, increasing from a low of $92,647 to a high of $282,342.
3. Over the period reviewed, net profit (before an allowance for the cost of owner/operators' labour) varied from a high of $93,343 in the financial year 2017 to a loss of $10,408 in the financial year 2019.
4. The results for the financial year 2019 reflect the adverse seasonal conditions which were experienced in the 2017, 2018 and 2019 calendar years. Average net profit over the nine year period was $33,361 per annum. Net profit showed a close relationship to annual rainfall. Annual rainfall over this period was 18% below the average. The extended period of below average rainfall was a major contributor to low trading profits.
5. The results for the year 2017 reflected the high number of sheep sold that year for a relatively high price and low fodder expenses: Tcpt, 2 March 2021, p 236(12-18).
6. In cross-examination, when referred to his summary of the profit and loss statements for RW & NL Starr Trust, Mr Ivey accepted, on the figures presented there, that, on balance, the business has been trading at a loss: Tcpt, 2 March 2021, p 237(14-21). However, he contended that these figures did not accurately reflect the profitability of the business, due to the inclusion of extraneous non-farm factors: Tcpt, 2 March 2021, p 237(19-25).
7. Mr Ivey also accepted that he did not attempt to reconcile the actual costs for "Arakoon" and "Hylands" with his estimates: Tcpt, 2 March 2021, p 243(06-09). The average year budget for the combined operation produced an operating surplus of $75,736 (before labour costs). He considered this to be a reasonable return for the amount of labour necessary to manage and operate the properties.
8. Mr Ivey's assessment of the labour requirement to operate the combined properties is 1.25 full-time equivalents, which would take the form of a full-time manager and some additional part-time or casual assistance. He assessed the gross wage cost of employing a suitable manager to be $55,000 per annum, plus provision of a residence rent free. Superannuation at 9.5% would be payable on this gross wage. He estimated the cost of casual assistance at $30 per hour for an average of 10 hours per week, representing an annual cost of $15,000. Superannuation at 9.5% would be payable on this gross wage.
9. The average year budget for the operation of "Arakoon" produced an operating surplus of $38,548 (before labour costs). According to Mr Ivey, this was less than a reasonable remuneration for an experienced farm manager.
10. Mr Ivey estimated that 80-90% of a full-time equivalent worker would be required to run "Arakoon" alone: Tcpt, 2 March 2021, p 234(07-16). However, he estimated that 20-30% of the time, two hands would be either advantageous or necessary in operating Arakoon as a stand-alone property: Tcpt, 2 March 2021, p 243(33-37). Whilst he accepted that the person operating "Arakoon" would have approximately one month (in aggregate) for work off the farm, he maintained that this would only be for certain periods of the year and that the work would need to be found in the vicinity of "Arakoon": Tcpt, 2 March 2021, p 243(44-49). Furthermore, he stated that the longest period of time that he or she could be away from "Arakoon", without adverse impact on the operations of the property, was three days: Tcpt, 2 March 2021, p 244(39-42).

The Law - Family Provision

1. To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made "adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made": s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as it "thinks ought to be made" for the identified purposes: s 59(2).
2. Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgement is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased's Will applies unless a specific application is made and acceded to by the Court.
3. Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant's proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.
4. King CJ in In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77 wrote: "The words 'advancement in life' have a wide meaning and application and there is nothing to confine the operation of the provision to an earlier period of life in the members of the family: Blore v Lang, per Dixon CJ at 128. In McCosker v McCosker, the expression was held to be wide enough to embrace the provision of capital for the poultry farming business of a claimant. The word 'proper' is of considerable importance and means proper in all the circumstances of the case: Bosch v Perpetual Trustee Co Ltd; McCosker v McCosker. The circumstances include the size of the estate, the needs of the applicants, the nearness or remoteness of the applicant's blood and personal relationship to the deceased, any special claims which the applicants may have on the bounty of the deceased, and competing claims of others." [Footnotes omitted]
5. The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.
6. Whether the disposition of the deceased's estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant's "needs" that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant's "needs", when compared with the provision made for her, or him, out of the deceased's estate, should be the only, or even, the dominant consideration. An applicant's financial needs and the financial needs of other persons with claims on the deceased's testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]: "… [I]t is important not to elide the distinction between needs and adequate provision; the former is but one indicator of the latter. The adequacy of provision is not to be determined by a calculation of financial needs. The background to any consideration of the appellant's needs required determination of the size of the estate and the claims of others on the beneficence of the testator."
7. In Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [81] - [82], Buss JA said, in respect of the first stage of the process: "The term 'need' has been used to refer to the claimant's inability to satisfy his or her financial requirements from his or her own resources: see Singer at 227 per Gaudron J. 'Need' has also been used in the context of a value judgment or conclusion, namely, that the claimant is 'in need' of maintenance, etc, because inadequate provision has been made for his or her proper maintenance, etc: see Gorton v Parks (1989) 17 NSWLR 1 at 10-11 per Bryson J.
8. As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased "is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably". The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes "adequate provision" for the "proper maintenance" of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.
9. If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.
10. Section 65(1) of the Act requires the family provision order to specify: 1. the person or persons for whom provision is to be made, and 2. the amount and nature of the provision, and 3. the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided, and 4. any conditions, restrictions or limitations imposed by the Court.
11. The Court's order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or "in any other manner the Court thinks fit" (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).
12. Section 66 of the Act sets out the consequential and ancillary orders that may be made.
13. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].
14. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
15. As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]: "Fairness and equality are not touchstones for relief under the Succession Act."
16. In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added: "There is, in my opinion, no reason for thinking that justice is better served by the application of abstract principles of fairness than by acceptance of the judgment of a competent testator whose knowledge of the virtues and failings of the members of his family equips him for the responsibility of disposing of his estate in far better measure than can be afforded to a court by a few pages of affidavits sworn after his death and which only too frequently provide but an incomplete and shallow reflection of family relations and characteristics. All this is, of course, subject to the proviso that an order may be made if it appears that the testator has failed to discharge a duty to make provision for the maintenance, education or advancement of his widow or children. But it must appear, firstly, that such a duty existed and, secondly, that it has not been discharged."
17. Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased's wishes: "The words 'proper maintenance and support', although they must be treated as elastic, cannot be pressed beyond their fair meaning. The Court is given not only a discretion as to the nature and amount of the provision it directs but, what is even more important, a discretion as to making a provision at all. All authorities agree that it was never meant that the Court should re-write the will of a testator. Nor was it ever intended that the freedom of testamentary disposition should be so encroached upon that a testator's decisions expressed in his will have only a prima facie effect, the real dispositive power being vested in the Court."
18. In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
19. Of the freedom of testamentary disposition, in Grey v Harrison, Callaway JA also wrote, at 366: "... [I]t is one of the freedoms that shape our society, and an important human right, that a person should be free to dispose of his or her property as he or she thinks fit. Rights and freedoms must of course be exercised and enjoyed conformably with the rights and freedoms of others, but there is no equity, as it were, to interfere with a testator's dispositions unless he or she has abused that right. To do so is to assume a power to take property from the intended object of the testator's bounty and give it to someone else. In conferring a discretion in the wide terms found in s. 91, the legislature intended it to be exercised in a principled way. A breach of moral duty is the justification for curial intervention and simultaneously limits its legitimate extent."
20. In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, at [47], the UK Supreme Court wrote: "It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors."
21. In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that: "Freedom of testamentary disposition remains a prominent feature of the Australian legal system. Its significance is both practical and symbolic and should not be underestimated."
22. In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that: "…respect should be given to a capable testator's judgment as to who should benefit from the estate if it can be seen that the testator has duly considered the claims on the estate. That is not to deny that s 59 of the Succession Act interferes with the freedom of testamentary disposition. Plainly it does, and courts have a duty to interfere with the will if the provision made for an eligible applicant is less than adequate for his or her proper maintenance and advancement in life. But it must be acknowledged that the evidence that can be presented after the testator's death is necessarily inadequate. Typically, as in this case, there can be no or only limited contradiction of the applicant's evidence as to his or her relationship and dealings with the deceased. The deceased will have been in a better position to determine what provision for a claimant's maintenance and advancement in life is proper than will be a court called on to determine that question months or years after the deceased's death when the person best able to give evidence on that question is no longer alive. Accordingly, if the deceased was capable of giving due consideration to that question and did so, considerable weight should be given to the testator's testamentary wishes in recognition of the better position in which the deceased was placed (Stott v Cook (1960) 33 ALJR 447 per Taylor J at 453-454 cited in Nowak v Beska [2013] NSWSC 166 at [136]). This is subject to the qualification that the court's determination under s 59(1)(c) and s 59(2) is to be made having regard to the circumstances at the time the court is considering the application, rather than at the time of the deceased's death or will."
23. His Honour added, at [86]: "To recognise that the court is not in as good a position as a capable testator to assess what maintenance or advancement in life is proper for an applicant having regard to all of a family's circumstances, including the relationships between the applicant and the deceased, and the merits and claims of other family members, is not to put a gloss on the statute. Rather, it is to acknowledge the superior position of the testator. The most important word in s 59(1)(c) is 'proper'. Until the court has identified what is proper maintenance, education and advancement in life for an applicant, it cannot assess whether the provision made, if any, is adequate. What is proper requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. Whilst the court will know the latter, it will only have an incomplete picture of the former. Of course, the court's assessment of what is proper maintenance, education and advancement in life must be made when the court is considering the application. That does not mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate."
24. In Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, at [51], White JA, although partially disagreeing with the majority, wrote that he "did not say that wherever it can be seen that the deceased was capable of giving due consideration as to the adequacy of the provision in the will for a claimant and did so, that that was determinative of a claim for provision" and at [54], that "[t]he issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death".
25. Clearly, in this case, the deceased decided to discriminate between her children and make substantially greater provision for Margo who had forgone wages, worked on the farm and help build it up, particularly in the last 12 years or so of the deceased's life.
26. Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.
27. In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].
28. The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased's Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].
29. In this case, the estate is of reasonably large value. In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J (as his Honour then was) said at 20-21: "[W]ith a very large estate… there is great temptation on a Court to be overgenerous with other people's money. This is especially so when the Court can see that Plaintiffs have been very hardly done by at the hands of a domineering testatrix. However, the case should not be approached in this way as the application has to be determined in accordance with the legal principles. These principles include the fact that in Australia there is freedom of a person to leave her property in whatever way she wishes, to love whom she wishes, to hate whom she wishes, and it is only when there has been a failure to comply with a moral duty to those who in the community's eyes she should have made proper provision for, that anyone can legally complain about another person's will. Even then, the Court has no power to rewrite the will, but can only adjust things, in substitution for the testatrix, in such a way as to fulfil her moral duty. If the estate is a large one, the Court has a slightly different approach. The basic principles are the same, that is, the will can only be affected to the extent that it is necessary to discharge the moral duty by making adequate provision for the plaintiffs, but where there is a large estate, competition between claimant and claimant, and claimant and beneficiary under the will is much reduced or eliminated. Further, there may be a more liberal assessment of the moral duty owed, to be reflected in what is proper provision for the plaintiffs. In particular, the lifestyle that has been enjoyed by the plaintiffs, because they have been associated with a wealthy testatrix, is a relevant factor."
30. In Vigolo v Bostin, at [51], it was noted that "in the case of large estates, provision can be made for the well-to-do".
31. In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], wrote: "… where the size of the estate permits and there will be no serious prejudice to the rights of other beneficiaries, [the court may] order further provision beyond the immediate and likely future needs of the applicant… [providing] a 'nest egg' to guard against unforeseen events." [Footnotes omitted]
32. (In this case, it is to be noted that Margo submits that there will be serious prejudice to her rights if a substantial family provision order is made in favour of Susan.)
33. Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]: "The ample size of the estate does not justify the Court in being profligate in disposing of the assets of the Deceased and in awarding to each Plaintiff an amount which is more than that to which that Plaintiff would be entitled. The Court should do no more than remedy the failure on the part of the Deceased to make adequate provision for the proper maintenance of each Plaintiff."
34. The size of the estate is but one factor, among many, which the Act requires the Court to take into account, in the evaluation suggested by s 60(2) of the Act, wherever it is relevant. However, the Court only alters a will as far as is necessary to provide adequately for the proper maintenance, education and advancement in life of the applicant. (I have, of course, taken into account the other factors referred to in s 60(2) also.)
35. In relation to the claims, each being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember: 1. The relationship between parent and child changes when the child attains adulthood. However, a child does not cease to be a natural recipient of parental ties, affection or support, as the bonds of childhood are relaxed. 2. It is impossible to describe, in terms of universal application, the moral obligation, or community expectation, of a parent in respect of an adult child. It can be said that, "ordinarily the community expects parents to raise and educate their children to the very best of their ability while they remain children; probably to assist them with a tertiary education, and where that is feasible; where funds allow, to provide them with a start in life - such as a deposit on a home, although it might well take a different form. The community does not expect a parent, in ordinary circumstances, to provide an unencumbered house, or to set their children up in a position where they can acquire a house unencumbered, although in a particular case, where assets permit and the relationship between the parties is such as to justify it, there might be such an obligation": Taylor v Farrugia [2009] NSWSC 801, at [57]; McGrath v Eves [2005] NSWSC 1006; Kohari v Snow [2013] NSWSC 452, at [121]; Salmon v Osmond [2015] NSWCA 42, at [109]. 3. Generally, also, "the community does not expect a parent to look after his or her children for the rest of [the child's life] and into retirement, especially when there is someone else, such as a spouse, who has a prime obligation to do so. Plainly, if an adult child remains a dependent of a parent, the community usually expects the parent to make provision to fulfil that ongoing dependency after death. But where a child, even an adult child, falls on hard times and where there are assets available, then the community may expect parents to provide a buffer against contingencies; and where a child has been unable to accumulate superannuation or make other provision for their retirement, something to assist in retirement where otherwise they would be left destitute": Taylor v Farrugia, at [58]. 4. There is no need for an applicant adult child to show some special need or some special claim: McCosker v McCosker (1957) 97 CLR 566; 31 ALJ 779; Kleinig v Neal (No 2) [1981] 2 NSWLR 532, at 545; Bondelmonte v Blanckensee [1989] WAR 305; Hawkins v Prestage (1989) 1 WAR 37, at 45; Taylor v Farrugia, at [58]. 5. The adult child's lack of reserves to meet demands, particularly of ill health, which become more likely with advancing years, is a relevant consideration: MacGregor v MacGregor [2003] WASC 169, at [179]-[182]; Crossman v Riedel [2004] ACTSC 127, at [49]. Likewise, the need for financial security and a fund to protect against the ordinary vicissitudes of life are relevant: Marks v Marks [2003] WASCA 297, at [43]. In addition, if the applicant is unable to earn, or has a limited means of earning, an income, this could give rise to an increased call on the estate of the deceased: Christie v Manera [2006] WASC 287. 6. The applicant has the onus of satisfying the Court, on the balance of probabilities, of the justification for the claim: Hughes v National Trustees, Executors and Agency Co of Australasia Ltd (1979) 143 CLR 134 at 149; [1979] HCA 2.
36. A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox [2014] NSWCA 392, at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].
37. The role of the Court is not "to address wounded feelings or salve the pain of disappointed expectations" that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).
38. In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse "strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased's bounty. These claimants include other beneficiaries entitled to a share of the deceased's estate, whether or not they themselves have made a claim under the Family Provision Act".
39. Basten JA, at [3], noted that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed: "There is no single provision of which it may be said that that is the provision that a wise and just testator would have made. There is instead a range of appropriate provisions, in much the same way as there is a range of awards for pain and suffering or a range of available sentences. Minds may legitimately differ as to the provision that should be made. Furthermore, it is not at all clear that reasons for an appropriate provision need be fully articulated. To borrow again from the analogy of sentencing, what is required is an instinctive synthesis that takes into account all the relevant factors and gives them due weight."

Farming Cases

1. The nature of the estate may also be a relevant factor in the Court's consideration. Yet, the Act does not direct the formal retention in the family of one form of property (such as a farm) against another. If a farm must be sold to provide for the proper maintenance, education or advancement in life of the applicant, that may be unavoidable. There are no special rules which apply to such cases.
2. However, the fact that two farming properties comprise the most valuable assets of the deceased's estate does give rise to considerations going to the ways and means by which any order for provision could be given effect. There is an overlap between the factual realities and the determination which the Court must make. If there is a way of providing for such provision, without causing the sale of the "Arakoon" or "Hylands", then it should be considered.
3. In White v Chambers (Supreme Court (WA), Franklin J, 27 February 1985, unrep), Franklin J stated, at 17: "I certainty do not agree that the exercise of my discretion to award what I consider to be appropriate provision for an applicant or applicants should be fettered by reason only of the fact that the only available asset is a farming property left to a son in circumstances where daughters have been left without adequate provision, which farm will need to be sold to provide that adequate provision... The question of whether or not the farm should be sold is one which must be viewed in the light of all the relevant circumstances and is no more than one matter to be considered in determining how the discretion should be exercised. I further observe that in this particular case the consideration given to that question must be influenced by the fact that the will provided for sale of all assets including the farm and did not leave it as a specific devise to the son, and the fact that on the evidence at the date of death the testator's appreciation and that of the son Joseph was that Joseph would not return to the farm but would continue life with his family in another country as a minister of religion."
4. In Bryant v Bryant (Supreme Court (NSW), Needham J, 24 July 1986, unrep), Needham J stated, at 8: "I bear in mind, very much, the desire of the defendant to maintain the farm… However, with regret, I feel that the proposition put by the defendant is not a sufficient provision for the plaintiff and I think that a sum in excess of that amount should be provided for her. If this means that the defendant has to sell the property, well I am afraid that is unavoidable. It is to be noted, of course, that the testator provided a trust for sale, even though there was a very extensive power to postpone the sale. The testator did not indicate in his will any desire that the property should be maintained in the family name, although it is possible to extract from the will provisions which, perhaps, the testator considered might enable the defendant to maintain the property in its then state, while appropriating some portion of the estate to the interests of the widow. Unfortunately, the property is, essentially, the only substantial asset in the estate."
5. In Davey v Fairhead (1996) ACL Rep 395 WA 7, Walsh J stated, at [22]-[24]: "In Roberts v Roberts (1992) 9 WAR 549 Pidgeon J at 5587 and 559 had this to say about the family farm: 'If the assets comprise a family farm and if a will makes provision for a member of the family to continue its operation, then I would consider that the principles applicable are those referred to by Malcolm CHJ in Young v Young (unreported, Supreme Court, WA, Malcolm CJ, Library No 7626, 26 April 1989). When dealing with the facts of that particular case, his Honour said (at 32): 'According to the evidence before me I am satisfied that it was very common in farming families to take the view that it was the moral duty of a testator or testatrix to discriminate between male and female children in certain circumstances. Where the male had foregone wages, worked on the farm and help build it up in the expectation of inheritance and the female children were supported by the family through their education to the point where they were qualified to obtain employment which would enable them to live comfortably and independently of the farm, the moral duty was discharged by the male inhering the farm. This is such a case. No doubt the situation might be different if a son left the farm to become a nuclear physicist and the daughter chose to remain on the farm and run it.' … When Young's case (supra) was heard on appeal by this Court (Young v Young (unreported, Supreme Court, WA, Full Court, Library No 8175, 3 April 1990)) I said: 'In my view a wise and just testator, who has as one of his assets a farm on which he has resided or occupied for the greater part of his life and personally conducted and which is subsequently being conducted by one of his children, would wish to make provision to preserve that farm even if it gives a greater benefit to the beneficiary conducting the farm. This would, a fortiori, be the position if the farm had been in the family for a number of generations. It would still be necessary to make proper provision for other members of the family. …" At [25], Walsh J further stated: "The learned Commissioner said (AB at 26): 'On the other hand, the fact that the assets of the estate are substantially farming lands and that the sons are seeking to continue farming, does not permit the court to discriminate in favour of those sons as against other children with competing interests.' If the intent of this passage is that a farm should not be awarded to a son to the exclusion of other children with legitimate competing interests then I consider that is an accurate statement of the law. The learned Commissioner later said (AB at 34): 'As I have already observed, it is now well established that the sons of farming parents do not have a right to inherit the farm to the exclusion of their sisters if proper provision has not been made for the sisters.' Again I would see that as an accurate statement of the law with the qualification that I doubt if there had even been a time when the law was different. Changing social conditions may well determine the nature of a competing claim by a sister in these circumstances. It is for these reasons that my terminology would not coincide with that of the learned Commissioner when he earlier referred to a 'discredited' view that sons should inherit farming properties to the exclusion of daughters. I would see it as always having been the law that in proper circumstances provisions can be weighted to enable some members of a family to inherit a farming property formerly carried on by the family, provided that proper provision is made for those with competing claims."
6. I have borne in mind Margo's desire to retain both properties. However, I have come to the view, bearing in mind Susan's claim for a family provision order, and the possibility of costs being paid out of the estate, that this may not be possible. However, some reasonable opportunity should be given to Margo to satisfy the order for provision that should be made in Susan's favour.

Qualifications on "Principles"

1. As long ago as 1980, in White v Barron, at 440, Stephen J wrote: "[T]his jurisdiction is pre-eminently one in which the trial judge's exercise of discretion should not be unduly confined by judge-made rules of purportedly general application."
2. As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as "principles" or "general principles" to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.
3. It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]: "Whatever guidance one might draw from analogous cases all analogies, and any guidelines drawn from a pattern of similar cases, must yield to the text of the legislation, the duty of the Court to apply that text to the particular circumstances, and the totality of material circumstances, of each case. Preconceptions and predispositions, comforting though they may be, can be the source of inadequate consideration of the jurisdiction to be exercised: Bladwell v Davis [2004] NSWCA 170 at [12] and [18]-[19]."
4. The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon, at [37]. They must be remembered.

Determination of Susan's family provision claim

1. In my opinion, the deceased, in all the circumstances to which I have referred, failed to make adequate provision for the proper maintenance and support of Susan in the 2012 Will. In this regard, I have borne in mind all the circumstances, including, amongst other things, Susan's financial position, the size and nature of the deceased's estate, the totality of the relationship between Susan and the deceased, and the relationship between the deceased and Margo, the only other person with a legitimate claim upon the deceased's bounty.
2. I have also made an assessment of what is the proper level of maintenance and advancement in life bearing in mind all of the circumstances. In this regard, I consider that a wise and just will-maker would have made greater provision for the future needs of Susan taking into account that she has not very much by way of her own property.
3. The use of the word "proper" means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the "station in life" of the applicant and the expectations to which that has given rise and the fact that she was throughout her adult life independent upon the deceased for any ongoing financial support.
4. I have also taken into account, as I may do pursuant to s 60(2)(e) of the Act, since Susan is cohabiting with Andrew, his financial circumstances. I also bear in mind that, in the event of a breakdown of their relationship, she has rights upon which she can rely (being a financial resource).
5. In reaching these conclusions, I have also borne in mind the deceased's wish, reflected in the 2012 Will, to provide "Arakoon" and "Hylands" to Margo, based upon, amongst other things, her significant sacrifices, services and contribution made directly and indirectly, financially and non-financially, towards the deceased. It is clear, as set out above, that her desire was to make provision to preserve "Arakoon" and "Hylands" as an indivisible entity, even if it provided a significantly greater share of her estate to Margo. The fact that she discriminated between her four daughters in this way is not, however, a determinative factor. She was entitled to do so.
6. I turn next to give consideration to the provision that should be provided for Susan.
7. Senior counsel for Susan submitted that the maximum amount by way of provision that should be ordered was $1,000,000: Tcpt, 4 March 2021, p 397(29-32). Senior counsel for Margo submitted that the maximum amount by way of order for provision for Susan was $810,000: Tcpt, 3 March 2021, p 391(13-16). Both agreed that the minimum figure to be awarded to Susan was about $440,000: Tcpt, 4 March 2021, p 397(29).
8. The parties agreed that if provision were made for Susan, it should be in lieu of her entitlement under the deceased's Will. In this way, Margo can determine how best to satisfy the order for provision as she will effectively be entitled to the whole of the estate after satisfying the order for provision made for Susan and the agreement that she has reached with Belinda and Emma.
9. The determination of the quantum of the provision to be made is not an arithmetical exercise, based on fiscal micrology, but involves the exercise of discretion within the confines of the Act and having regard to the numerous factors, both tangible and intangible, for which the Act provides and to which I have referred. In reaching the quantum of provision, I have considered what are said to be the "needs" of Susan. I do not accept that all of what she described as "needs" should, after the death of the deceased, fall to be met from her estate. As I have written, I consider that some of those "needs" are not within the concept of "adequate and proper" provision. That concept cannot extend to any, or every, thing which it would be desirable for the applicant to have. In this regard, what is "proper" provision, should be informed, at least in part, by the scope of an applicant's dependency upon the deceased during her, or his, adult life. Susan is an adult fully emancipated daughter of the deceased who had lived her own life and made her own lifestyle decisions without financial assistance from the deceased for many years prior to the deceased's death.
10. Ultimately, I am of the view that Susan requires a lump sum that should enable her to be, at least partially, financially independent of Andrew and which lump sum she can use, as she sees fit, for the exigencies, or vicissitudes, of life.
11. Taking into account the submissions made with respect to Susan's circumstances and all of the circumstances of Margo, even though Susan could not be regarded as being in necessitous circumstances, in my view, and in lieu of the provision made for her in the 2012 Will, she should receive a lump sum of $750,000 out of the estate of the deceased. Such a sum is capable of providing Susan with a financial buffer, whilst at the same time giving due consideration to the competing claim of Margo.
12. The parties should also consider other matters to which I shall refer below. I shall allow them the opportunity to consider these reasons and provide short minutes of order which should include an order: 1. for the dismissal of the Probate proceedings brought by Susan; 2. for the grant of Probate in solemn form of the 2012 Will; 3. that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return the original to the Defendants; 4. for the dismissal of the family provision proceedings brought in the Cross-Claim (in the Probate proceedings) by Margo; 5. pursuant to s 59 of the Succession Act 2006 (NSW), that in lieu of the provision made for her in the Will of the deceased, Susan should receive, by way of provision, a lump sum of $750,000, out of the estate of the deceased; 6. that the provision made for Susan be borne by the share of the deceased's estate passing to Margo; 7. specifying the time by which the lump sum should be paid; 8. that interest is to be paid on the lump sum if not paid in accordance with the time agreed to by the parties; and 9. that the Exhibits, excepting Ex D3, be dealt with in accordance with the Uniform Civil Procedure Rules 2005 (NSW) (rr 31.16A and 33.10) and Practice Note No SC Gen 18.
13. When delivering the reasons for judgment, I shall adjourn the matter to enable the parties to agree on the orders for costs and to provide the form of orders to me. If they cannot be agreed within 10 days thereafter, the matter shall be re-listed to enable the determination of any outstanding issues.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 May 2021