Szabo v Battye

My son Arpad (also known as Arthur) Szabo has from time to time paid the insurance premium on my behalf in respect of my property at 21 Clanwilliam Street, Willoughby. I do not possess a bank cheque account and I have on each occasion asked Arpad to pay the insurance premium on my behalf and I have on each occasion and at the time of making such request paid to him in cash the amount of insurance premium he subsequently drew out of his account and paid to the insurance company. I say that my son Arpad has not given me any money by way of gift or otherwise and whenever he has made any payment on my behalf, whether insurance premiums as aforesaid or rates, taxes or other outgoings or any other payment whatsoever, I have on each occasion paid to him by cash the equivalent amount.

My other son Charles Szabo has at all times helped me with the repair and maintenance of my house and did this free of charge without ever accepting any payment in return. Whenever I asked my son Arpad for help with the house I have on each occasion paid him for his assistance. I have considered both of my sons situation as at the date of signing of my Will and although I consider that my son Charles Szabo has in the past been more helpful to me than Arpad Szabo, I have come to the conclusion that in order to be fair to both of my sons my assets would be divided in equal shares between them. 10 Her power of attorney dated 23 July 1991 appointed Charles her attorney if, whenever and so long as she should be incapacitated by illness from attending to her affairs. 11 Mr Denes gave the following evidence which I accept. The deceased's English was limited and so they conversed in the Hungarian language when they spoke. He had no independent recollection of taking instructions for the drawing of the will, the accompanying statement, or the power of attorney. In accordance with his practice, he would have excluded from the room, when taking instructions and having the will executed, all persons other than the testatrix and attesting witnesses. Further, he would have read over, and if necessary explained, the provisions of the will, the statement and the power of attorney to her before she executed them. It was not his practice to question a testator as to their mental capacity unless he had a doubt about their answers because such answers were not coherent, or did not fit into the frame of what they were instructing him to do. 12 Charles' evidence, which I accept, is that when the deceased came out of Mr Denes' office she said to him that she had made it "50:50" for him and Arthur and that they never again discussed the division of her assets under that will. The 1991 will and accompanying statement were placed in Charles' safe custody packet at his bank and, according to Charles, he forgot they were there until about 2005. Revocation of the 1991 power of attorney 13 In 1999 the deceased telephoned Mr Denes and asked him to arrange for the power of attorney to be revoked. On 27 August 1999 Mr Denes wrote a letter to the deceased enclosing a copy of the 1991 power of attorney, a notice of revocation and a notice to Charles. 14 On 17 September 1999 Mr Denes wrote to the deceased about the revocation of the power of attorney and her relationship with Charles, from whom he had also received instructions: Re: Mr Charles Szabo

We confirm that the Notice of Revocation of Power of Attorney was registered and served on Mr Charles Szabo on 9 September 1999 as instructed by you.

We note that we do not hold a will on your behalf and if you can not located [sic] your will we suggest that a new will should be prepared and signed by you. Please contact the writer should you require any assistance in this regard.

Mr Charles Szabo has confirmed that he intended to keep in touch with you. He indicated that he visited you on 3 occasions namely on 1 May, 1992, 30 November, 1995 and 4 September, 1996, however you did not permit him into your house and asked him to leave.

We can only suggest that you contact Mr Szabo and clear up any misunderstanding that appears to have interfered with your relationship with him. 15 In his affidavit, Charles explained the first occasion referred to in the letter by saying that for a period of three months only around mid 1992 he and his mother were not talking because he had refused to take with him on holidays to Hungary a bag of clothes as presents for relatives, but that they then patched up their quarrel and resumed their good relationship. He said that he could not remember what the disputes were in relation to the latter two dates.

16 In cross-examination Charles said he could not answer the question why he would instruct his solicitor in 1999 to write a letter saying that he wished to clear up any misunderstanding. He was unable to explain why, in 1999, he would be referring to attempts to visit his mother on occasions seven years, four years and three years previously, when he was not allowed to enter the house. He gave evidence that throughout the 1990s his relationship with his mother was so close that he saw her every week and took her to his weekender at Katoomba virtually every weekend and that their relationship did not seriously decline until about August 2003.

17 Having regard to the letter of 17 September 1999, the content and manner of Charles' evidence when confronted with it in cross-examination and the evidence (referred to below) of close friends and neighbours of the deceased that they seldom saw him at his mother's house, I have decided that the relationship between Charles and his mother had deteriorated and was not good in the period 1992 to 1999. I do not accept his contrary evidence. This probably explains why in August 1999 she revoked the 1991 power of attorney. The underlying reason was probably the belief she held that Charles was indebted to her and had failed to pay the debt. Charles denied that he was indebted to her, but said that from about 1992 she regularly asked him to give back her money and that the amount she mentioned varied between $25,000 and $30,000. I consider this issue further later in this judgment. The 1999 will 18 On 8 September 1999 the deceased executed the following simple, one page will prepared by a solicitor, Mr Chris Battye, when she attended upon him at his Chatswood office which was quite near her home: 1. I HEREBY REVOKE all former Wills and testamentary dispositions and declare this to be my last Will and Testament.

I APPOINT my son ARTHUR SZABO of 47 Railway Street, Baulkham Hills and CHRIS BATTYE Solicitor of 50/47 Neridah Street, Chatswood Executors and Trustees of this my Will.

I GIVE to my son ARTHUR SZABO the Chesterfield lounge.

I GIVE to my son CHARLES SZABO of 20 Ralston Street, Lane cove the tapestries marked with his name.

I GIVE to both my sons equally the contents of my home. All my jewellery has been sold.

I GIVE the whole of my estate, including my home, equally to my two sons ARTHUR SZABO and CHARLES SZABO as tenants in common NOTWITHSTANDING the monetary debt owed to me by my son CHARLES SZABO.

6. I GIVE the rest residue and remainder of my estate both real and personal to my two sons equally as tenants in common. 19 It may be noted that paragraph 6 refers to an unparticularised monetary debt owed by Charles. The Chesterfield lounge referred to in paragraph 3 had been given to the deceased by Arthur in 1984.

20 Arthur's affidavit evidence as to the circumstances in which the 1999, 2002 and 2003 wills were executed was as follows: 23 … On each occasion in September 1999, May 2002 and August 2003 I accompanied the Deceased to the legal office of Chris Battye after she said to me words to the effect " I wish to change my Will ". On the first occasion we found the Solicitor nearest to her home and simply went in and made an appointment for about a week later. On each of these occasions I was there for the initial part of her introduction to the Solicitor Chris Battye. I observed that she and he were both able to converse and that she appeared to understand him and he appeared to understand her English without any need for assistance by me. On these occasions I believe I was present for the initial introductions but left when the Deceased was giving instructions to the Solicitor although on the last occasion I went outside for part of the time. I deny that she needed the services of an interpreter at all on these occasions when seeing Chris Battye. I say that when she gave instructions for those three Wills the Deceased had been residing in Australia for many years and could speak broken English well enough to be readily understood. She had worked as a caterer for many years which required her to speak English. She had many Australian friends and enjoyed talking to them and discussing her garden, cooking, tapestries and other interests in life. She understood English if spoken clearly. 21 I accept Arthur's evidence notwithstanding an attack made on his credit which I address below.

22 Mr Battye has been a solicitor since 1984. Since 1989 he has practiced under the name the "Conveyancing Shop" at Chatswood. Mr Battye's affidavit evidence as to the circumstances of the making of the 1999 will was as follows: 2. In 1999 I opened the Conveyancing Shop at an address a few doors up from its present address. I was aiming to concentrate on discount conveyancing but did other legal work such as the wills and powers of attorney.

3. I recall in early September, 1999 Arthur Szabo (' the Second Defendant ") came and asked me if I did wills and I told him that I did. I probably told him the charge would be $50.00. As my practice was only just starting I was happy to have the work and was not yet that busy. He said he would bring his mother back. Some days later he returned with his mother Irene Szabo and introduced her to me.

4. She said to me: ' I want a new Will .' The old office was a two storey building and while I took instructions I asked the Second Defendant to leave and the Second Defendant went out in the street. I worked from the ground floor of the building and used upstairs for file storage. The Second Defendant made no attempt to bring any influence to bear on me while I made the Will. He did not tell me what his mother wanted or he wanted or suggest that I make the will in any particular way. He simply brought his mother to my office, as she lived about 2 kilometres away. She was physically in good condition for her age. I do not recall her talking about any ailments she might have had. From my observation as an experienced Solicitor she understood what she wanted to do and understood the significance of her instructions.

5. Mrs. Szabo appeared alert to me. Mrs. Szabo appeared to be in command of her mental faculties and to know her own mind at the time I took instructions from her for her will. As a Solicitor you meet many people who are not alert. Some repeat things that they have only shortly before told you or are obsessed with minor matters or clearly are not aware of where they are or what day it is. She showed no signs of any such defect. It did not occur to me to have her state of mental health of testamentary capacity checked as there were no signs of lack of awareness or other mental or physical problems.

6. Mrs. Szabo had been in Australia for 43 years when I took instructions for the 1999 will. Her English was accented as you would expect but she spoke it well enough for her to make her intentions clear to me. Her grammar and the tenses that she used may have been wrong but her meaning was clear. She certainly did not need an interpreter. The will I prepared was a simple one with no complicated trust provisions or gifts over. She gave me firm instructions, she did not dither or ask my opinion about what I thought about how she should distribute the estate…

8. After the making of the 1999 will she invited me around to see some tapestries at her house in Clanwilliam Street, Willoughby. I was there for about an hour and I recall she gave me some fruit from her garden. Sometime after that she would call in to see me and give me a plastic bag of fruit, or another tapestry. 23 Mr Battye's oral evidence included the following, which I accept. He has made hundreds of wills and his practice when making wills was substantially similar to that of Mr Denes. Mr Denes' evidence, which I accept, was that his practice when having a will executed was to exclude from the room all persons other than the testator or testatrix and attesting witnesses and to read over and, if necessary, explain the provisions of the will. When Mr Battye drafted the 1999 will Arthur went outside. It was Mr Battye's general practice to ask a relative to leave the office. Mr Battye deposed that on that occasion the deceased appeared quite alert and bright and indicated she wanted a new, simple will. She said her jewellery was gone. Because of her very broken English, he had to use very truncated direct sentences and sometimes rephrase them to get appropriate instructions. When she said the jewellery was gone, he gave her several alternatives and she said it had been sold. She said that Charles owed her money which was a recurring pattern over the time he knew her. He did not inquire into this. The instructions given on that occasion were so brief and to the point that Mr Battye immediately prepared the will on his computer. He explained "the legalese", such as it was, in this short will. He was satisfied that he had adequate instructions and that the will reflected those instructions. The instructions were difficult to get clear and he took some time to satisfy himself that he had got it right. His impression was that the deceased was of strong native intelligence and certainly knew what she wanted. He gave her a copy of the printed will. He had no one else in the office who could witness it. She took the original will away and brought it back, duly executed, shortly afterwards. 24 I accept Mr Battye's evidence notwithstanding an attack on his credit which I address later.

The 2002 will and contemporaneous note 25 On 9 May 2002 the deceased executed the following simple, one page will, prepared by Mr Battye at his office: 1 . I HEREBY REVOKE all former Wills and testamentary dispositions and declare this to be my last Will and Testament.

I APPOINT my son ARTHUR SZABO of 47 Railway Street, Baulkham Hills and CHRIS BATTYE Solicitor of 18/47 Neridah Street, Chatswood Executors and Trustees of this my Will.

I GIVE to my son ARTHUR SZABO the Chesterfield lounge and my television set.

I GIVE to my son CHARLES SZABO of 20 Ralston Street, Lane Cove the tapestries marked with his name.

I GIVE to both my sons equally the contents of my home. All my jewellery has been sold.

I DIRECT that my son CHARLES SZABO repay to my estate the amount which he borrowed from me and did not repay, namely Twenty Five Thousand Dollars ($25,000.00) and I DIRECT that the said CHARLES SZABO be responsible for all costs associated with the sale of my home.

Subject to Clause 6 I GIVE the whole of my estate, including my home, equally to my two sons ARTHUR SZABO and CHARLES SZABO as tenants in common.

8 I GIVE the rest residue and remainder of my estate both real and personal to my two sons equally as tenants in common.

26 At the time of executing the 2002 will the deceased also wrote a note in Hungarian which has been translated into English for the purposes of these proceedings. It says: Charles Son, No problem, because you used the 25 thousand dollars a long time ago, which you didn't even bring to pay back to Arpad, it belongs to him. 27 The borrowing of $25,000 by Charles, referred to in paragraph 6 of the 2002 will and in the note, is alleged by Charles in these proceedings to be a delusion held by his mother and a reason for refusing to grant probate of the 2003 and 2002 wills.

28 Mr Battye's affidavit evidence as to the circumstances of the making of the 2002 will was as follows: 9. On the occasion of the will of 9th May, 2002 I was still in the old office. I cannot recall whether the Second Defendant stayed in the office while I was given the instructions but I believe that he again went outside. He did not sit near his mother or make any attempt to influence her. On this occasion Mrs. Szabo told me: ' I am annoyed with my son Charles. It is not right. I am annoyed because he has not reapid $30,000.00 that he owes me. Charles is well off but he is making no effort to repay the debt to me '. While she appeared to be annoyed Mrs Szabo did not raise her voice or become emotional. On the occasion of making the second Will Mrs Szabo instructed me: ' The Will should provide for Charles to pay all the costs of the sale of the house out of his share of the Estate, ie agents and solicitors fees to be paid from his share '. 29 Mr Battye's oral evidence as to the circumstances of the making of 2002 will included the following. The deceased told him that Charles hadn't repaid her the money and was in a position to do so. She seemed annoyed about it. Sometimes she referred to $25,000 and sometimes $30,000. There was no change in her demeanour from 1999. He had seen her half a dozen times since 1999 and there was no change in her demeanour on those occasions either. 30 Again I accept Mr Battye's evidence. 31 Arthur's affidavit evidence, which I accept, concerning the circumstances in which the 2002 will was executed has been set out earlier.

The 2003 will 32 On 19 August 2003 the deceased executed her final will, prepared by Mr Battye, at his office: 1 . I HEREBY REVOKE all former Wills and testamentary dispositions and declare this to be my last Will and Testament.

I APPOINT my son ARTHUR SZABO of 47 Railway Street, Baulkham Hills and CHRIS BATTYE, Solicitor of Suite 18, 47 Neridah Street, Chatswood Executors and Trustees of this my will.

I GIVE to my son ARTHUR SZABO the Chesterfield lounge.

I GIVE to my son CHARLES SZABO of 20 Ralston Street, Lane Cove the tapestries and the contents of my home.

I GIVE the whole of my estate, including my home, as to 2/3 to my son ARTHUR SZABO and as to 1/3 to my son CHARLES SZABO as tenants in common.

I GIVE the rest residue and remainder of my estate both real and personal as to 2/3 to my son ARTHUR SZABO and as to 1/3 to my son CHARLES SZABO as tenants in common. 33 The following changes from the 2002 will may be noted: (a) for the first time Arthur received two thirds of the estate and Charles one third; (b) there was now no reference to any debt owed by Charles and the direction was omitted that Charles repay a loan of $25,000 to his mother and be responsible for the costs associated with the sale of her home; (c) Arthur continued to receive the Chesterfield lounge, but no longer received the television set; (d) Charles now received all her tapestries (not just those marked with his name) as well as the contents of her home (which in the 2002 will went to both sons); and (e) the statement that all her jewellery had been sold was omitted.

34 Mr Battye gave the following affidavit evidence concerning execution of the 2003 will: 10. On the occasion of the third will in 2003 I had moved to my new office at the present address. Here I had set the office up differently. It is a three storey terrace style office with reception and a kitchenette and storage on the ground floor. It has a couple of uncomfortable waiting chairs. I conduct my practice on the basis that people can come straight in and see me unless I already have a client with me. People generally do not wait, they either come up to the second level or come back later. On the second level is an open plan office in which there are computer stations and I have a half partitioned off client table area for taking instructions. On the third level is accounting and storage. 11. When she visited me in August, 2003 to make a third will with me Mrs Szabo was able to come up a flight of stairs to my table/office to see me. I observed that she was a little withdrawn on this occasion compared with the two previous occasions (looking tired about the eyes) but she was alert and showed no signs of forgetfulness or other signs of diminished mental capacity such as wandering attention. I saw no need to have her tested for testamentary capacity as she was clearly capable of making a will. The Second Defendant accompanied her but either waited downstairs or went outside. He did not sit near her while I took instructions for the will. If he was sitting downstairs he may have been able to hear something of what was said. At no time in my dealings with Mrs Szabo did the Second Defendant make any attempt in my presence to influence his mother or me in relation to her Will. 12. Mrs Szabo said to me: " I am annoyed about the failure of my son Charles to pay the debt of $30,000.00 he owes. " Mrs Szabo was a bit withdrawn on this occasion when she made the third will in 2003 but in my observations this did not appear to diminish her testamentary capacity. She said to me: " I wish to make a change to my Will to be more fair because Charles has failed to repay the loan of $30,000.00 ". As she gave the instructions I typed out the will in accordance with those instructions. Apart from telling me she wished to leave the Chesterfield lounge to her son Arthur and the tapestries and contents of her home to Charles she said words to the effect: " As to the rest of my Estate including my home I wish to give two-thirds to my son Arthur and one-third to my son Charles ". She was sitting at the table opposite me. I went through the will with her line by line telling her what it said. She appeared to be reading it at the same time and she was able to ask any questions if she did not understand it. I do not recall her asking about it. After reading it she expressed general satisfaction with it and said that she was ready to sign it. 13. Once she was ready I called my then secretary/typist Michelle Yip over and Mrs Szabo signed the will in front of us both in a steady hand. She then paid me $50 and left the will in my custody before thanking me and leaving with the Second Defendant. 14. I have no doubt that the will as drawn expressed her wishes at the time she made it. 15. I witnessed the will as there was no-one else around to do it. I realised that I could not take any benefit under the will but I never intended to take any commission from a pensioner.

35 In oral evidence Mr Battye corrected his affidavit evidence where he said that "as she gave me instructions I typed out the will in accordance with those instructions". What in fact happened, he said, was that he wrote on a photocopy of the 2002 will and gave the hand amended copy to his secretary, Michelle Lewis, to type. I accept his affidavit evidence with this correction.

36 Mr Battye also gave oral evidence, which I accept, concerning the execution of the 2003 will which included the following. This was the simplest will he had ever done. Because of the language difficulty he wanted to be perfectly sure in his mind that the deceased understood what she was doing. He satisfied himself that she understood by reading it to her and by her responses. On that occasion her mental capacity was undimmed, she was alert and quite definite in what she wanted, although frailer than she had been. When she arrived, she walked up the 20 steps to his office. When she was three quarters of the way up, he saw and greeted her. She said "okay, heart" indicating her heart, paused, continued up and sat down at his desk. She told him she had been to hospital. The reason she gave for changing the will from Charles repaying $25,000 and the costs associated with the sale of her home to a two thirds/one third split was that "Charles was better off and in a position to repay". She was quite adamant that it was no longer to be 50/50. Mr Battye followed his usual practice in reading and explaining the 2003 will. I take the words "in a position to repay" to be referable to the debt of $30,000 to which Mr Battye referred in his affidavit.

37 Her explanation that "Charles was better off" is consistent with the evidence given in cross-examination by the deceased's friend, Maria Lynn, that the deceased told her she had given more to Arthur because "he is poor and the other one is much richer".

38 Mr Battye said that Arthur may have been present during the initial, introductory part of Mr Battye's meeting with the deceased when, because of difficulty in communication and getting things clear, some mechanical detail was probably checked with Arthur, who at times communicated with his mother in Hungarian. Mr Battye was quite clear that Arthur was not present thereafter when he checked with her exactly what she wanted in her will, when the will was read to her, when she confirmed what was in it and when it was executed. Similarly, Arthur said that Mr Battye might have asked him some questions at the initial stage of the meeting, but then he left. He said that he may have spoken to his mother in Hungarian during this initial conversation, but that if he did, it would only have been to say "I'm going downstairs" or words to that effect. In addition to his affidavit evidence set out in paragraph 20, above, Arthur confirmed in oral evidence that he was not present when his mother gave instructions.

39 Mr Battye's description of how he explained the will to the deceased substantially accords with the view of Windeyer J in Robinson v Spratt [2002] NSWSC 426 at [31] that "wills should be read out loud to testators with pauses to explain the terms during the reading to ascertain that those terms are understood by the testator and carry out his or her intentions".

40 Michelle Lewis, Mr Battye's paralegal and secretary, gave the following evidence concerning the circumstances of the execution of the 2003 will in an affidavit on which she was not cross-examined: 1. On the 19th August 2003 I was a legal secretary/paralegal employed by the First Defendant Chris Battye at his office at Suite 18 47 Neridah Street Chatswood 2067. On that day the deceased Irene Szabo attended at the office of the First Defendant and was accompanied by her son Arthur Szabo. She came upstairs to Mr Battye's office area which was on the first floor. She was able to get there unassisted by anyone although she supported herself on the hand railing. 2. The first floor was open plan and Mr Battye's desk was partly separated from the area where I sat by a chest-high padded office partition. Mrs Szabo wanted to make a new will. She spoke to Mr Battye for a few minutes. I do not recall what was said but I can recall Arthur Szabo being involved in the conversation. When he spoke to his mother it was in a deferential tone. I do not recall Arthur Szabo speaking in an authoritarian or badgering tone to his mother. Their relationship appeared to be one of mutual respect. Mr Arthur Szabo let her take her time to give instructions for the will. 3. After the instructions had been taken Mr Battye handed me a photocopy of Mrs Szabo's previous will with the alterations handwritten on it. While I was in the process of taking the handwritten instructions and walking back to my desk I recall a discussion in which Mrs Szabo indicated that she was unhappy about something relating to money and her son Charles. She looked very displeased at something when this was discussed. She was discussing it with Arthur Szabo in Hungarian. She had a document which was handwritten in a language I do not understand and which I understand to be the document written by Mrs Szabo. Annexed hereto and marked ' A ' is a copy of that document. 4. I then typed the new will and took it over to Mr Battye. I stayed in the immediate vicinity of Mr Battye and Mrs Szabo while Mr Battye explained the will to her. He explained the will while holding it so she could read it and pointing to the relevant clauses. While Mrs Szabo did not speak perfect English she spoke it well enough to get by. She appeared to understand the will. She may have asked some questions regarding the will. After this process she indicated that she was ready to sign the new will and she then signed it. I was watching as she signed it, Mr Battye then witnessed it and then I witnessed it. We were at all times within one another's presence. To the best of my recollection at the time that the will was being signed Mr Arthur Szabo was absent from the first floor having either gone down to the ground floor reception area or gone outside of the building altogether. 5. Throughout the period of the instructions for the will and the signing Mrs Szabo seemed alert. She seemed very sure of what she was doing and she knew it involved her property.

41 Mr Battye testified that Ms Lewis was not entirely correct in that Arthur was present only during the initial part of the meeting and that any discussion between Arthur and his mother occurred then. That was also the effect of Arthur's evidence. Having heard the evidence of Mr Battye and Arthur, I accept that Arthur was only present during the initial stage of the meeting when Mr Battye obtained some mechanical detail, and that any discussion between Arthur and his mother occurred at that time. I accept Mr Battye's evidence to the extent that it is inconsistent with Ms Lewis'.

42 It was submitted for Charles that the circumstances attending the 2003 will were unsatisfactory for the following reasons: (a) first, Mr Battye failed to check with a doctor or any independent person as to the deceased's testamentary capacity despite knowing that: (i) the deceased had been hospitalised since the last will was made. Mr Battye's evidence, which I accept, was that it did not occur to him to have her state of mental health or testamentary capacity checked as there were no signs of lack of awareness or other mental problems; (ii) the deceased had difficulty in negotiating stairs, pausing on them and pointing to her heart. Mr Battye did not accept the suggestion put to him in cross-examination that she had been struggling up the stairs, but agreed she had some physical difficulty and looked more frail than she had previously. (iii) as Mr Battye agreed, the deceased had black circles under her eyes and was withdrawn. I do not accept that he should have checked with a doctor or an independent person as to the deceased's testamentary capacity. (b) secondly, Mr Battye should have sent the deceased away to think about the change to her will, given that she was changing it from 50/50. I do not accept that he had such an obligation in the circumstances; (c) thirdly, Mr Battye failed to inquire as to the underlying reasons for that significant change and whether those reasons were rational given that he knew that the deceased had strong feelings regarding the unpaid loan from Charles. I do not accept that Mr Battye was obliged to make that inquiry in the circumstances. He went through the will with the deceased line by line telling her what it said. After reading it she expressed general satisfaction and said she was ready to sign it, and she did so in a steady hand; (d) fourthly, it was pointed out that Mr Battye failed to take a note of her instructions. I do not accept the submission. His evidence was that it was not his practice to make a lengthy note, especially when the will was simple and that he assumed that he threw out any notes he had after the will was executed. (e) finally, it was submitted that Mr Battye acted as if a slave to his client's instructions. I do not accept this submission. 43 Despite these criticisms, I do not think that the circumstances surrounding the execution of the 2003 will were unsatisfactory, or so unsatisfactory as to lead to a conclusion that the deceased did not know and approve of the will.

44 Charles gave evidence that, unaided by the services of an interpreter, the deceased was not capable of giving a lawyer instructions for the drawing of the later wills, or of reading the vast majority of English words and the language found in the later wills, that she spoke only the most basic English words and that she never spoke English sentences.

45 There was a remarkable division in the evidence as to the deceased's spoken English and comprehension. There were called in Charles' case a number of witnesses who had known the deceased for some years, mostly Charles' family members, friends or colleagues. They gave evidence to the effect that the deceased had an extremely limited vocabulary and only understood the most basic English words and phrases; that it was impossible to conduct a meaningful conversation with her in English; and that although she had been a strong and vigorous woman, in the last few years of her life her health deteriorated significantly and she was gloomy and sometimes forgetful. These witnesses included Evette (Eva) Beale, who is Charles' daughter; Andrew Beale, who is Charles' son-in-law; Elizabeth Brownlow, who worked at the hairdressing salon where the deceased had her hair done; Dean Emerson; Brian McEwen; Joseph Younan; Nable Rahme; Anthony Rihme and Amanda Olufsen. The last-mentioned witness was the office manager of the Chatswood Diagnostic Centre, which the deceased visited between March 2002 and March 2003 on some nine occasions. Dr Robert-Smith, the deceased's general practitioner from February 2002, gave not dissimilar evidence.

46 A contrary body of evidence was adduced in the defendants' case which I prefer. It includes the evidence of four friends and neighbours of the deceased (set out later in the judgment) to the effect that they and the deceased constantly had intelligent and rational conversations in English; as well as the evidence of Mr Battye and Arthur. Arthur gave evidence that the deceased did not have the need for an interpreter to interpret English into the Hungarian language; that the suggestions that she was unable to converse in English were wrong; and that she spoke to her many friends and conducted her business and shopping in English without undue difficulty. Whenever she wanted to get her message across in English she was able to do so, she used simple words and spoke English well enough to be understood, although at times her language was broken. He observed his mother writing shopping lists in English on most occasions when he went shopping with her. She loved television and he would often sit and watch an English film or program with her. Only occasionally would he have to explain a word to her. The Patient Assessment on her admission to hospital on 26 January 2002 noted that she "speaks good English". The Patient Assessment on 31 January 2002 noted under the heading "Communication": "Able to answer verbally all questions posed to her including orientation questions… able to follow complex instructions, verbal, without non-verbal cues".

47 There was also an issue as to the deceased's ability to read and write English. Arthur's evidence was that she had some cookbooks in English, which were tendered; that she also had women's magazines in English; and that he had often seen her writing out shopping lists in English when they went shopping together. I accept his evidence. Charles said that his mother looked at pictures in the women's magazines but did not read the articles. I accept that was his impression. My conclusion is that she had very limited ability to read or write English without assistance.

48 In my opinion, the deceased's knowledge and understanding of English was sufficient for her to know and approve of the simple wills that she executed in 2003, 2002 and 1999 if they were properly explained and read out to her, as I accept that they were.

49 It was submitted for Charles that the credit of Mr Battye should not be accepted. First, it was noted that there was a discrepancy in Mr Battye's evidence as to the fee which he charged for the 2003 will. In his affidavit he said that the deceased paid him $50 for the will, whereas in cross-examination he conceded that it was $75. I consider this point to be insignificant . Secondly, it was pointed out that Mr Battye said in his affidavit that he typed out the 2003 will, whereas he corrected this in his oral evidence and said that he wrote on a photocopy of the old will and that the amendments made were typed up by Michelle Lewis. That is true. Nevertheless, I accept his evidence as corrected. Thirdly, it was pointed out that Mr Battye said in cross-examination that the deceased sometimes referred to Charles' debt as $25,000 and sometimes as $30,000, and that he thought they were interchangeable and did not know whether they were two separate amounts. This is correct, but I do not think it is a significant credit point. Fourthly, it was submitted that Mr Battye permitted Arthur to be present and participate in giving instructions for the 2003 will. I do not accept that submission because of the contrary findings that I have made earlier. Finally, it was submitted that Mr Battye admitted that Arthur was talking to the deceased in Hungarian "prior to or when" instructions were given to the 2003 will. As stated earlier, I have accepted the evidence of Mr Battye that Arthur was speaking with his mother in Hungarian when they first arrived, when only mechanical detail was discussed, not later when she gave instructions. Notwithstanding the criticisms made of Mr Battye, I accept his evidence.

50 Arthur's credit was challenged. First, it was submitted that his evidence that he gave his mother $30,000 was wrong, because when one looked at the document that recorded that transaction, it acknowledged that the payment was for her financial contributions over the past 17 years. I do not think this is significant. Arthur's evidence was that she had contributed little bits of money over time for different things, had helped him along the way, and now this was the first time in his life that he had a large amount of money and he gave it back to her. I accept his evidence.

51 Secondly, it was said that there was some difference between an answer that Arthur gave to an interrogatory, "She had asked both [Charles] and [Arthur] to give her $30,000 each from the sale of the house as she had not received anything from the marital home at the time of divorce" and his evidence in his affidavit where he ascribed to her the words "Charles as you know I asked both of you to give me $30,000 each from the sale of the house as I got nothing from it at the time of our divorce", and his additional oral evidence that he agreed to match any monetary contribution from the proceeds of the sale that Charles was willing to give his mother. I do not think that these statements are necessarily inconsistent and I accept that they are substantially accurate. Thirdly, it was pointed out that there was a conflict in his evidence because in his affidavit evidence he said that before she went in to sign the 2003 will she told him that she wanted to change the will, that she was not happy with Charles and that she wanted him to have two thirds and Charles one third, but that she would give Charles most of the furniture and tapestries and he could have the lounge. In cross-examination he appeared at one point to say that it was not until after she changed her will that he knew about the two thirds/one third aspect. I accept that this appears to be a conflict.

52 Fourthly, it was submitted that neither Arthur nor anyone else had produced any evidence of handwriting by the deceased in English, notwithstanding that Arthur said that he saw his mother write shopping lists in English on most occasions when he went shopping with her. It would be surprising if shopping lists had survived the passage of time. I accept Arthur's evidence concerning the shopping lists. Next, it was submitted that Arthur had been untruthful in his evidence that the English cookbooks tendered in evidence belonged to his mother. I accept his evidence. Next, it was submitted that the deceased was required to wear reading glasses. I do not see that this goes to Arthur's credit although it is relevant to the deceased's ability to read a will. In any case I do not accept the submission. Arthur's evidence, which I accept, was that he never saw his mother wearing glasses, though he knew that she had glasses. Rosa Romanowski's evidence was that the deceased never wore glasses. There is no evidence that she wore glasses or needed them for reading. Finally, it was submitted that Arthur's claim that he had met Dr Robert-Smith on at least ten occasions at home or in his surgery was false because Dr Robert-Smith in cross-examination could not recognise him in Court. I find it unsurprising that Dr Robert-Smith did not recognise him. I accept Arthur's evidence in this regard.

53 It was submitted for Charles that Arthur exploited his mother's delusions and initiated and instigated wills which were more favourable to him. I reject the submission. His evidence, which I accept, was that she wanted him to ring Mr Denes in 1999 to ask him where her will was and he did so. It was submitted for Charles that Arthur knew of, and participated in, the revocation of the power of attorney in favour of Charles in 1999. I do not accept that he did anything in that regard other than what his mother asked him to do. It was pointed out that Arthur telephoned Mr Battye to make the appointment for the 1999 will and took his mother to Mr Battye's office. I do not see anything remarkable in that. Charles appears to have done much the same thing back in 1991. Moreover, the 1999 will divided the estate equally between the sons.

54 A number of matters were said to strain credulity in relation to Arthur's evidence. First, it was said that it was no coincidence that the revocation of the power of attorney in 1999 was coincidental with the drawing of a new will. Arthur gave evidence, which I accept, that the deceased was looking for her earlier will, could not find it and did not explain why she was changing her power of attorney, and that he did not ask her why. He denied the suggestions in cross-examination (a) that he was "in [his] mother's ear… persuading [her] mother to make a will that was more generous to [him]"; (b) that he wanted to find the prior will and that was why he telephoned Mr Denes; (c) that he encouraged his mother to revoke the power of attorney; (d) that he assisted her with the revocation of the power of attorney; and (e) that he made a call to Mr Battye so he could attend to the alteration of the will. I accept his denials. Moreover, given that the 1999 will essentially divided the estate equally between the sons, it was not in fact more generous to Arthur. Secondly, it was submitted that it strains credulity that when Arthur read the note accompanying the 2002 will, that he was not especially upset about it. This refers to a question that was put to him in cross-examination as to whether that annoyed him, and his answer that he was not annoyed. I do not regard this as a significant point. The next matter said to strain credulity concerned Arthur's evidence that the deceased told him on a number of occasions "I lent moneys to Charles to help him with the purchase of some properties. These loans are to be repaid and Charles signed an Acknowledgement that he borrowed such money from me… I asked Charles many times to repay the money. When I showed him the Acknowledgement he ripped it up and said to me 'this is not worth anything'". I accept Arthur's evidence. The next matter said to strain credulity was Arthur's evidence that his mother told him she believed her diamond ring was being worn by Charles' wife. Arthur gave evidence that there was a ring missing from her place five or six years before she died, that this went out of his mind, and then some 12 months before his mother died for some reason she brought it back up again and said that she had seen the ring on the hand of Charles' wife. I accept Arthur's evidence. Next, there was a criticism about Arthur's evidence that he changed the locks on his mother's front door when she came home from hospital in 2003 because she felt that there were things missing from her house and that she mentioned his brother in that context. I accept Arthur's evidence.

55 Notwithstanding the criticisms made of Arthur's evidence, he impressed me as an honest and generally reliable witness.

Credit of Charles 56 A challenge was made to Charles' credit. I consider that his credit was diminished for a number of reasons which are analysed in more detail later in this judgment. First, I do not accept Charles' evidence that no arrangement was made for each son to pay the deceased $30,000. Secondly, I do not accept Charles' evidence that during the last 12 years or so of his mother's life, until about August 2003, he visited her nearly every day and took her most weekends to his weekender at Katoomba, nor that his mother's attitude to him did not seriously decline until August 2003. His relationship with his mother was by no means as close as he suggested given the contents of Mr Denes' letter of 17 September 1999, the evidence of the deceased's friend Mrs McInnes and housekeeper Ms Nagy as to his aggressive behaviour towards his mother, and their evidence, and that of the deceased's friends Mesdames Romanowski, Lynn and Snodgrass that, in contrast to Arthur, they seldom saw Charles at his mother's home (see below). I accept their evidence. Thirdly, I reject Charles' evidence that the deceased did not like Elizabeth McInnes very much. That is quite contrary to the evidence of Mrs McInnes (see below), which I accept.

57 There are two main issues. First, did the deceased have testamentary capacity when she made the 2003 will or the 2002 will? That is, did she have the mental skills needed to be able to make a will? If so, did she exercise her testamentary capacity when making the wills? In other words, did she know and approve of - that is, understand - the wills that she made?

58 The classic authority usually quoted concerning the meaning of testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549 at 565, which was approved by the High Court in Bailey v Bailey (1924) 34 CLR 558. There, Cockburn CJ, delivering the judgment of the Court of Queens Bench (which additionally included Blackburn, Mellor and Hannen JJ), said: It is essential to the exercise of such a 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 a disposal of it which, if the mind had been sound, would not have been made.

59 That statement was made in a case where the testator had been confined as a lunatic for some months and, following his discharge, remained subject to delusions that he was pursued by spirits and that a man long since dead still pursued and molested him. It was admitted that at times he was incapable of making a will. The question was whether his mental illness had influenced his testamentary capacity at the relevant time. A jury found that the will was valid. On an application to set aside the jury verdict it was held that the delusions were unconnected with the dispositions under the will and could not have had any influence upon him in disposing of his property; that the jury must have found that he was in possession of his faculties when the will was executed; and that in the circumstances there was no ground for holding the will invalid (at 571). The case demonstrates that it is a question of fact whether a testator suffered from a particular delusion and, if so, whether it had an effect upon a will (as Needham J pointed out in Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 at 272).

60 In relation to the more usual situation where a question of testamentary capacity arises, Cockburn CJ said 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… 61 Cockburn CJ approved (at 566 - 567) the following passage from an American case: … he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their 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 by 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. Cockburn CJ also approved (at 567) the following passage from another American case: 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 the nature of a rational, fair and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory.

62 The guidelines in Banks v Goodfellow have been accepted as the proper test in cases where testamentary capacity is in issue. However, it was recognised by Windeyer J in Kerr v Badran; Estate of Badran [2004] NSWSC 735 at [49] that in applying those guidelines, formulated in 1870, in the 21st century, it should be borne in mind that people now live much longer and consequently tend to end their lives with some mental deterioration. His Honour also noted that the requirement of knowing "the extent" of the estate must now take account of the fact that there have been great changes in the nature and diversity of assets that people own and that many have handed over management of their assets to advisers.

63 The ways in which unsoundness of mind may come about were reviewed in Donato v Mangravite; Estate of Donato [2005] NSWSC 488 at [29] - [30] by Burchett AJ: 29 Unsoundness of mind in the sense indicated by this statement of the law [in Banks v Goodfellow ] may come about in various ways. In the present case, age, illness, bereavement and personal stresses are relied upon. A number of other matters, such as education and linguistic problems, are relevant. But although it is legal principle, expounded in the cases, which makes all these things relevant, the ultimate decision upon them is one of fact, and the weight of a particular aspect may not necessarily be the same at the outset of the twenty-first century as it would have been in the nineteenth. The point has been made before (see the decision of Windeyer J in Kerr v Badran [2004] NSWSC 735 at [49]), but it is worth emphasising again in a case where inferences are sought to be drawn, amongst other things, from the testator's 79 years. Modern medicine has ensured that there is no reason to infer that the testator's brain was labouring to function in a miasma arising from malfunctioning arteries. In fact, of course, his CT scan, and the absence of any diagnosis of dementia or of possible dementia, suggested the opposite. Nor, as the medical evidence made clear, could it be inferred that if his cancer required sedation at a particular time any effects on his mental faculties would have persisted at some subsequent time.

30 It is important also to bear in mind the point made by Santow J in Redroff v Miegoch (at para 5) that, although extreme age or grave illness will provide evidence of lack of testamentary capacity, they " will only displace a prima facie case of testamentary capacity if there is evidence the Deceased's mental facilities [ scil faculties ] had been so affected thereby as to make him or her unequal to the task of disposing of his or her property. That is, the decay of intelligence must have been to such an extent that the proposed testator did not appreciate the testamentary act in all its bearings… " As Young J put it in In the Estate of Kazacos; Ryan v Kazacos (2001) 183 ALR 506 at 516: " [t]o displace a prima facie case of capacity mere proof of serious illness is not sufficient ". Similarly, in Seeley v Back [2005] NSWSC 68 Barrett J said (in para 20): Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity: Bailey v Bailey (1924) 34 CLR 558. It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity. … Concerning the repeated references in the authorities to the level of capacity required by the principle, I think it is important to note that the judgment of Powell JA in Read v Carmody (1998) BC 9803374 (with which Meagher JA and Stein JA agreed) cited (at 42) with apparent approval the remarks of Cockburn CJ in Banks v Goodfellow which I have just quoted referring to cases where " the mental power may be reduced below the ordinary standard ".

See also Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706-707 (Powell J).

64 An apparently rational testatrix and an apparently rational will are important indicators of testamentary capacity: Worth v Clasohm (1952) 86 CLR 439 at 452. The cases reviewed above indicate that mere proof of serious illness, great age or reduction in mental powers below the ordinary standard are, of themselves, insufficient to establish testamentary incapacity; although they and such matters as personal stresses and linguistic problems are relevant matters to take into account.

65 In the present case, it is alleged that the deceased not only lacked testamentary capacity generally but, in particular, suffered from delusions when she made her 2003 and 2002 wills. In Banks v Goodfellow, Cockburn CJ said at 561 that where an insane delusion "has had … or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity"'. In Du Maurier v Wechsler [2001] NSWSC 4 at [41], Windeyer J said that where a delusion is alleged, it is necessary to determine two questions: "first whether the deceased suffered from delusion and if so, what delusion; and second if there was a delusion whether it acted so as to influence the testamentary dispositions". His Honour further noted: "It is, however, necessary to remember that when the evidence raises a doubt as to capacity the onus is on the plaintiff to satisfy the conscience of the court as to capacity: Worth v Clasohm (1952) 86 CLR 439; Bull v Fulton (1942) 66 CLR 295 at 343. However, great care must be taken with this as was pointed out by Gleeson CJ in Re Estate Griffith deceased, Easter v Griffith NSWCA 7 June 1995 as otherwise Courts may be too ready to declare against wills. Most cases are readily decided without going to onus".

66 On the question whether a delusion overmasters a deceased's judgment, in Seeley v Back; Estate of Seeley [2005] NSWSC 68 at [20], Barrett J said: The ultimate question for the court is not the appropriate medical classification or description of any illness or incapacity suffered by a testator but whether the testator suffered from a " delusion" or other incapacity which affected the making of the will. Cf Re Crooks Estate (14 December 1994, Young J, unreported); Re Crichton (22 July 1994, Bryson J, unreported); and Re Estate of Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698. The enquiry identified by Williams J in Timbury v Coffee (1941) 66 CLR 277 at 280 is whether " the delusion overmastered the judgment [sic] at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will" .

67 "Insane delusion" was the phrase coined in Banks v Goodfellow. That was a tautology. It is no longer necessary to describe a delusion as insane, or to find medical insanity: Shaw v Crichton (NSWCA, 23 August 1995, unreported) per Cole JA with whom Handley JA agreed. The contemporary notion of delusion and the need to show that it affected dispositions under the will were analysed by Santow J at first instance in Easter v Griffith; Estate of Ethel Gertrude Griffith (NSWSC, 17 June 1994, unreported): … Thus to sum up, to speak of an insane delusion in the nineteenth century was tautological - all delusions were by definition insane.

… The cases distinguish between lack of capacity or rationality, and the prejudiced or unreasonable exercise of that capacity. Each of these various conditions and attitudes may provide evidence of lack of capacity or excite the Court's suspicion and vigilance but none is per se demonstrative of incapacity…

More recent authority, while continuing to cite the earlier cases and citing the outdated terminology of " insane " delusion, has in reality evolved a different concept of delusion. This concept is more concerned with practical, non-psychiatric notions than requiring the higher hurdle of a pathological condition of a medically recognised type. Thus the concept requires incorrigibility of a belief whose falseness is not amenable to appeals to reason… So Derrett v Hall (High Court 4 February 1942, unreported) approved in Bull v Fulton (1942) 66 CLR 295 at 343 defined an insane delusion as " a fixed and incorrigible false belief which the victim could not be reasoned out of " and earlier as " a belief which is not true to fact, which cannot be corrected by an appeal to reason and which is out of harmony with the individual's education and surroundings "…

The contemporary position can thus be summarised. It is necessary for the delusion to affect some at least of the dispositions of the will; to describe it as insane is no longer necessary. However, the mere fact that certain dispositions of the will are apparently irrational or inofficious is not of itself sufficient to vitiate testamentary capacity though a relevant evidential fact, along with the whole circumstances of the will and testator, as well as relevant to whether the onus shifts back to the propounder of the will… What is required is absence of capacity, not merely its prejudiced exercise, so preserving freedom of testation. Thus whilst the presence of a medical label which reliably identifies the particular mental condition as a disorder of the mind or as insanity may be the clearest intermediate step to a conclusion that testamentary capacity is lacking, if the will's dispositions are thereby affected, it is not a necessary one. Thus, in Bull v Fulton (supra) at 339 Williams J said: " No specialist in mental diseases was called, but the Court can rely on its practical knowledge derived from its own experience ". Thus absence of the psychiatric or medical label is not of itself sufficient to lead to the conclusion that there can be no delusion of the requisite kind. Nor is it any longer necessary to find a disorder of the mind in any clinical sense. The delusion must be tested by objective evidence as to it being fixed, false and incorrigible such that the testator could not be reasoned out of it. Such delusions or disorders of the mind thus go beyond mere eccentricity, or vindictiveness or irrationality, though these may be evidence pointing with other material, to lack of testamentary capacity.

68 On the unsuccessful appeal in Re Estate of Griffith (deceased); Easter v Griffith (1995) 217 ALR 284, Gleeson CJ explained the concept of delusion as follows (at 291): Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. 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.

In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts (such as a husband's belief that his wife is unfaithful). Delusion may also consist in, or involve, a value judgment where the " judgment is so extreme as to defy credibility "… In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope for difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion.

In the present case the respondent did not profess to be able to point to any specific belief of objective fact entertained about him by his mother which could be characterised as delusional. Rather, he relied upon her assessment of him and his character, manifested by her conduct towards him over the years, and her final rejection and disinheritance of him, as involving a judgment so extreme as to be delusional. In this he called in aid the opinion of Dr Milton. Additionally, he relied upon the totality of the evidence concerning his relationship and dealings with his mother as indicating that she ultimately came to suffer from a form of mental disturbance which made it impossible for her to judge him rationally.

69 The relevance of a delusion was expressed in Seeley (above) by Barrett J as follows (at [20]): What must be assessed is the extent, if any, to which a delusion existing at the time of making the will affected the testator's ability to satisfy the traditional tests of testamentary capacity… Where the delusion is in respect of a matter irrelevant to the disposition of the testator's estate it may nevertheless provide evidence of mental capacity which must be evaluated as part of the general body of evidence. Similarly, the fact that a testator was known to have delusions at a time reasonably proximate to the date of the Will may create a concern as to whether those or other delusions existed at that date.

Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity Bailey v Bailey (1924) 34 CLR 558. It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity.

70 A finding of capacity or a finding that a delusion does not bear upon a testamentary disposition may be supported by the fact that the will does not preclude, but makes reasonable provision for, a person who is the natural object of a testator's bounty. In Du Maurier v Wechsler [2001] NSWSC 4 at [47] Windeyer J said: While there is I think little doubt that if one wishes to avoid ill feeling over wills it is desirable to treat all children equally whatever their differing circumstances there is no requirement this be done. Cases were [sic] incapacity is alleged through delusionary inability to consider claims of persons whom the community would expect to have a claim on bounty usually occur when such a person has been left nothing. Here it seems likely that Mrs Wechsler's 40% of residue will amount to about $2.4 million. While the onus is on the plaintiff to establish capacity, this fact itself supports a finding of capacity. One could never say the will was not " officious ". In the circumstances if I had concluded that there was monomania or delusion I would hold that it did not bear on the testamentary dispositions.

71 The onus of proof in relation to testamentary capacity was pithily described in Boreham v Prince Henry Hospital (1955) 29 ALJR 179 at 180 by Williams, Fullagar and Kitto JJ: The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.

72 Similarly, in Worth v Clasohm (1952) 86 CLR 439 at 452 - 453 Dixon, Webb and Kitto JJ said: After anxious consideration of the whole case we are of opinion that there is no sufficient reason for denying that a testatrix who appeared to so many competent observers to be completely sane, and made a completely rational will, lacked a sound disposing mind. A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But 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 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. It appears to us that there is ample ground for that belief in this case.

73 More recently, in Re Estate of Griffith (deceased); 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. 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.

74 What Sir James Hannan said to the jury in Boughton and Marston v Knight (1873) LR 3 P&D 64 at 68 was: You must of necessity put to yourself this question, and answer it: " Can I understand how any man in possession of his senses could have believed such and such a thing?" And if the answer you give is, I cannot understand it, then it is of the necessity of the case you should say the man is not sane.

75 Where there is an issue whether the deceased knew and freely approved the contents of a will, the Court proceeds according to the principles summarised in Nock v Austin (1918) 25 CLR 519 at 528 by Isaacs J at 528 (omitting citations): (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 is to determine the fact upon a careful and accurate consideration of all the evidence on 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

76 Those principles have often been applied: e.g. recently in Hyslop Estate - Hyslop v Hyslop & Ors [2006] NSWSC 1237 (Palmer J). In Tonkiss v Graham [2002] NSWSC 891 at [103] Campbell J, after quoting this passage in Nock, said: "There is no limitation, as a matter of principle, on what types of circumstance count as ones which arouse suspicion that the testator did not know and approve the contents of the will, for the purpose of applying this law". This echoes the dictum of the Privy Council in Shama Churn Kundu v Khettromoni Dasi (1899) Indian Appeals 10 at 11 that "whenever 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". In Tonkiss, notwithstanding that the testatrix had some history of delusions (concerning people getting into, or living downstairs in, her house), Campbell J decided there was no reason to believe that they compromised, short of depriving her of capacity, her ability to understand matters connected with the making of her will, or to go through the decision-making processes involved in deciding what will to make.

77 It has been said that "most cases are readily decided without going to onus": Du Maurier v Wechsler [2001] NSWSC 4 at [41] per Windeyer J. Similarly in Bull v Fulton (1942) 66 CLR 295 at 343, Williams J said that "usually the evidence is such that the question upon whom the onus of proof lies is immaterial". A case in which it was material was Easter v Griffith; Estate of Griffith (NSWSC, 17 June 1994, unreported) where Santow J held that the propounder of challenged wills had not discharged its onus of establishing testamentary capacity.

78 The standard of proof on the propounder of a will to show that a delusion did not influence the will is on the balance of probabilities and not beyond reasonable doubt: Worth v Clasohm (above) at 453; Shaw v Crichton (above). In Bull v Fulton Latham CJ said at 299: "The onus in such a case is on those supporting the will to show that the delusion did not influence the will… This does not mean that a propounder must absolutely demonstrate this negative proposition. He must establish it according to the standard of proof required in civil cases. It will be sufficient for him to satisfy the Court that it is a reasonable inference from the facts that a delusion proved to exist did not affect the disposition in question".

79 Thus, at the end of the day, the onus may be discharged even if there remains a doubt. As Windeyer said in Kerr v Badran; Estate of Badran [2004] NSWSC 735 at [50]: It is important to bear in mind the decision in Worth v Clasohm (1952) 86 CLR 439. This explained that in a case where a doubt as to capacity is raised - thereby… satisfying the evidentiary onus on the defendant, the onus passing to the propounder to satisfy the Court that the will propounded is valid - this does not mean that a doubt is enough; the doubt must be such that the court considers it sufficient to prevent its finding for the will propounded.

80 Two questions of onus arise in the present case. First, has a sufficient doubt been raised as to testamentary capacity for the onus to shift to the propounders of the 2003 will and the 2002 will to satisfy the conscience of the Court that the testatrix had testamentary capacity, in the sense of being able to consider, and give effect to, the claims upon her bounty? If so, has that onus been discharged on the balance of probabilities?

81 The duly executed 2003 and 2002 wills, rational on their face, are presumed in the absence of sufficient doubt, to be those of a person of testamentary capacity.

82 Charles submitted in relation to the 2003 will that there were suspicious circumstances relating to the deceased's capacity and Arthur's conduct. It was submitted that the deceased was 88 years of age, enfeebled, unable to write English, capable of speaking only limited, broken English and delusional. It was submitted that Arthur took her to see the solicitor to significantly change her will in his favour, that he knew of the proposed two thirds/one third split, that he remained in the room whilst instructions were given, and that he participated in giving instructions for the will's preparation by prompting the deceased in Hungarian. It was submitted that the suspicion is aggravated by unsatisfactory aspects of Mr Battye's conduct, which I have addressed earlier. I have not accepted that Arthur remained in the room whilst instructions were given, nor that he participated in giving instructions for the will's preparation by prompting the deceased in Hungarian. As analysed earlier, he was in his mother's company only while matters of a purely mechanical nature were discussed. I have earlier expressed my view as to her English language skills and Mr Battye's conduct. Whether she was delusional is a matter which I consider later. However, I accept that other matters raised in the submission together with the medical evidence adduced in Charles' case (even though I later prefer the contrary medical evidence adduced in the defendants' case) raise a doubt as to testamentary capacity.

83 Consequently, there rests upon the propounders of the 2003 and 2002 wills the burden of satisfying the conscience of the Court that the deceased had such capacity at the relevant time. It is therefore necessary to conduct a vigilant examination of the whole of the evidence in order to determine whether, on the balance of probabilities, the deceased was of sound mind, memory and understanding at the time of execution of her will. That examination having been made, a residual doubt will be insufficient to defeat the 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.

84 In February 2000 the deceased was admitted to hospital with chest pain. In January 2002 she was hospitalised as a result of a stroke for almost a month, including rehabilitation. In May 2002 she executed her third will. In April 2003 she was hospitalised again for a few days because of chest pain. On 19 August 2003 she executed her fourth and last will. On 27 August 2003 she suffered a heart attack and was hospitalised until 20 October 2003, including a period of rehabilitation. Upon returning home in October she was provided with home care services by Katalin Nagy, who saw her virtually daily until January 2004. The defendants conceded that any medical evidence concerning the deceased at the time she executed the 2003 will would apply equally to the time she executed the 2002 will.

85 Charles gave evidence that his mother's mental state was good until the last few years of her life when, among other things, she was depressed, had mood swings, her attention wandered, she became forgetful and she expressed beliefs that people, particularly him, were stealing from her. There was similar evidence from others.

86 On 29 September 2003, while in Greenwich Hospital, she was given the RUDAS (Rowland Universal Dementia Assessment Scale) test. She achieved a score of 23/30, which was a pass.

87 Medical evidence was called in Charles' case with the object of establishing that the deceased lacked testamentary capacity when she executed the 2003 will. The evidence was from Dr Geoffrey Robert-Smith, the deceased's general practitioner, and Dr Sharon Reutens, a neuropsychiatrist and psychogeriatrician, who never saw the deceased, but expressed an opinion as to her testamentary capacity based on documents with which she was provided in 2006.

88 Dr Robert-Smith, the deceased's general practitioner from February 2002, said that by mid 2003 his opinion was that the deceased was neglecting herself to the point where she was not in adequate command of her life or in touch with reality. That opinion was based on her diminishing weight, increased malnutrition, progressive weakness and feebleness, unsteadiness on her feet, bouts of dizziness, increased frequency of her admissions to hospital, inability to follow directions for the taking of medication, her memory especially in relation to eating and self-administration of medication, apparent lack of cognition (however he did not administer a cognition test because of her lack of English), advanced age, depressed and flat moods, and inability to comprehend English in daily activities. He suspected that she was suffering from early senile dementia and had serious reservations and doubts about her mental faculties. Had an inquiry been made of him in relation to her testamentary capacity in 2003, he would not have been prepared to certify that in his opinion: (a) she was capable of performing any of the following functions: (i) understanding the nature of a will and its effects; (ii) understanding the extent of property she then owned or which she intended to dispose of; (iii) comprehending and appreciating claims to which she ought to give effect to in her will; (iv) understanding any document which involved legal terms; (v) giving rational instructions for the drawing of her will; (b) no disorder of the mind was poisoning her affections, perverting her sense of right or preventing the exercise with her natural faculties. In particular, he did not know if she was suffering from any delusions which might influence any will and any dispositions thereunder. Had such an inquiry been made of him in mid 2003 he would have recommended the assessment of the deceased by a well experienced psychogeriatrician in order to determine the above.

89 Dr Sharon Reutens, a neuropsychiatrist and psychogeriatrician, was asked in March 2006 to provide her opinion as to whether the deceased had testamentary capacity when she made her last will in August 2003. The documents with which she was provided included medical records, clinical notes, most of the affidavits in these proceedings and Arthur's verified statement and answer to interrogatories. Dr Reutens considered that the deceased's score on the RUDAS test administered in September 2003 should have been 22/30 not 23/30, and said that a score of 22 or less is suggestive of dementia. Dr Reutens concluded that in August 2003 the deceased was suffering from several disorders of the mind: depression; paranoid delusional disorder, which primarily consisted of Charles and his wife stealing from her; and cognitive impairment, which possibly reached the criteria for dementia of mild severity. As a result of those disorders, particularly the "probable" paranoid delusions (in relation to stolen items) she was unable to fully comprehend the true extent and nature of her estate and to accurately evaluate and discriminate between the relative strengths and weaknesses of the claims of her potential beneficiaries. On the other hand, I note the following question and answer in Dr Reuten's report: Q. Is it likely that as at August 2003 that any cognitive impairment was present which may have compromised the deceased's understanding of the nature of making a Will? A. No, it is very unlikely that such old knowledge (ie the nature of a will) is lost until the patient is in a very advanced stage of dementia. Mrs Szabo was not in an advanced state of dementia. 90 Dr Reutens provided a further report. There she said that she had seen the affidavit of Dr Rowland (see below) and now conceded that she was in error in stating in her first report that the deceased had failed the RUDAS test. Dr Reutens now conceded that the deceased scored 23/30, which would not categorise her as suffering from dementia - although Dr Reutens nevertheless added that she "might" still have had dementia or cognitive impairment. Dr Reutens said that she did not believe the deceased had testamentary capacity in August 2003 because her delusions concerning her son poisoned her affections towards him, impacting on her ability to accurately evaluate and discriminate between the relative strengths and weaknesses of the claims of her potential beneficiaries. Because the deceased believed that items that she had previously stated as having been sold were stolen from her, she was unable to fully comprehend the true extent and nature of her assets.

91 Medical evidence was called in the defendants' case from Dr Jeffrey Rowland and Dr Wayne Reid. Dr Rowland, the developer of the RUDAS test, testified that he agreed with Sheila Roche, who conducted that test on the deceased, that the test resulted in a mark of 23/30 which was a pass. He disagreed with Dr Reuten's contrary interpretation and explained why. The result indicated that the deceased was not categorised as suffering from dementia on 29 September 2003. The RUDAS test was indicative of testamentary capacity. In his opinion, if the deceased had made a will on the day the test was administered she would have had testamentary capacity and she probably had testamentary capacity when she made her last will in August 2003.

92 Dr Reid, a clinical neuro-psychologist, pointed out that Dr Reutens treated the deceased's accusation that Charles had stolen jewellery from her as a delusion, despite the fact that there was no clear evidence that it did or did not occur. Therefore the question of her suffering from a delusion and a disorder of the mind associated with delusion could not be held with certainty. Of particular importance in indicating that the deceased had testamentary capacity, were the affidavits of Mr Battye and Mrs McInnes. Dr Reid concluded that her frailty did not mean that she did not have mental capacity, that the question of her suffering from a delusional disorder could not clearly be established, and that she did have sufficient cognitive capacity to understand the implications of changing her will in 2003.

93 I prefer the evidence of Dr Rowland and Dr Reid to that of Dr Reutens and Dr Robert-Smith where they are in conflict. The RUDAS test result is an objective indicator that she was not suffering from dementia and had testamentary capacity.

94 Other evidence which I accept supporting general testamentary capacity was given by Katalin Nagy, the deceased's home help carer from October 2003 and four friends of the deceased: Elizabeth McInnes, Maria Lynn, Rosa Romanowski, and Patricia Snodgrass, although it may be more accurate to describe the last as a neighbour and friendly acquaintance. The broad effect of their evidence was that around the time the deceased executed the 2003 will she was alert and rational, and that her mental capacity appeared to be much as it had always been. They also testified that her conversational English was reasonably good, albeit broken. I do not accept the evidence of Charles and others called in his case insofar as it conflicts with their evidence.

95 Katalin Nagy provided the deceased with almost daily home help services from October 2003 to January 2004. She is fluent in Hungarian. She said that she spent many entertaining hours chatting with the deceased in Hungarian. The deceased told her many interesting things about her earlier life in Hungary and how the family ended up in Australia. They discussed food and recipes. The deceased remembered the recipes to many Hungarian sweets and gave Ms Nagy hints and shortcuts for preparing traditional Hungarian food. The deceased exhibited a sense of humour. The deceased made herself understood in English. Her English speaking neighbours sometimes dropped in and they spoke together in English. Ms Nagy was not asked to translate. For Christmas 2003, the deceased insisted that she show Ms Nagy how to make a special Hungarian walnut Christmas cake that she wanted to make for Arthur. On numerous occasions Ms Nagy saw Arthur. He would come with groceries or medication, looked after the garden and do any jobs that were needed around the house. Arthur and Ms Nagy were in constant contact and regularly discussed his mother's needs. She saw Charles only once when he came to the door and roughly handed his mother a package without speaking to or looking at her. Ms Nagy was shocked that a son could be as cold and unfeeling as he was on this occasion. The deceased was visibly upset. The next morning she still seemed upset and Ms Nagy asked her if she wanted to talk about Charles' visit. The deceased told her that when Charles' father died, Charles found a large sum of money under the house, that she told him it should be split three ways between Charles, Arthur and her; that Charles said he did not want to give Arthur a share, and that she told Charles he must consider it a loan from Arthur. Over the years, she had asked Charles many times to repay the loan but he always refused. She was very unhappy and distressed as she thought it was not fair, after all Charles had five houses and owed her other money. The deceased told Ms Nagy that she saw Charles' wife wearing some jewellery that originally belonged to the deceased and that some jewellery had not been returned to her. Ms Nagy found the deceased to be mentally sharp and extremely alert. She appeared to be normal and mentally stable, spoke fluently and recalled details easily. She found the deceased's conversation interesting, stimulating and entertaining.

96 Elizabeth McInnes is a registered nurse. She works as a carer for aged retirees and demented aged persons and in palliative care. She was a next door neighbour of the deceased for seven years prior to her death. She and her husband, the late Adrian McInnes QC (who passed away in October 2004), were among the deceased's closest friends. Mrs McInnes and the deceased visited each other at least every second day for a chat over coffee. She said that the deceased was interesting, intelligent and very knowledgeable about gardening, an interest which they shared. The deceased was very fit until she had a heart attack but even thereafter managed to keep active in her garden and with her other interests until some six weeks before her death. Her other great interests were cooking and tapestries. In 2003 she had an active body and an active mind. Her English was better than that of her friend Rosa Romanowski. I interpolate at this point that I found the spoken English of Ms Romanowski, who gave evidence, to be reasonable although broken. Mrs McInnes said that she could always understand the deceased and that the deceased often spoke to Mr and Mrs McInnes about the difficult times that she had during the war years and in the period under communist rule. They enjoyed her company and conversation. They had no trouble understanding her despite her Hungarian accent.

97 From her experience as a registered nurse in dealing with elderly people, Mrs McInnes was of the opinion that the deceased was of sound mind right up until the time of her death. She always responded appropriately and intelligently in their conversations and always conducted her affairs in an orderly and rational manner. She appeared aware of her surroundings and friends, remained alert and appreciated what she was doing, maintained a tidy and clean home and cooked meals for herself until the end with some assistance from a district nurse in the last weeks of her life. In cross-examination, Mrs McInnes said that she had no recollection of the deceased ever having an opinion which seemed illogical.

98 The night before she died, Mrs McInnes found that the deceased had fallen on the floor of her home. As Charles was nearby, the deceased asked her to telephone him. When he arrived Mrs McInnes was shocked to observe him pick his mother up and throw her roughly onto the bed. When she asked what she should do next, he told her to call Arthur. Charles was there no more than about five minutes and left without saying a word to his mother. She left Arthur with his mother. The next morning she found that the deceased had fallen out of bed and was dead. Charles denied Mrs McInnes' evidence as to his conduct towards his mother on the night before she died and some other aspects of her evidence. I do not accept his denials.

99 Mrs McInnes only met Charles about half a dozen times in the seven years that she knew the deceased although she was the most frequent visitor to the deceased's home. In that period she met Arthur about once a week as he would frequently assist his mother in the garden, mow her lawns or have a meal with her. She observed that Arthur had a good relationship with his mother and that on one or two occasions Charles was aggressive towards his mother.

100 Maria Lynn knew the deceased from about 1993 and considered her to be her best friend. They saw each other once a month at each other's home and spoke on the telephone at least once per week. They spoke English because Ms Lynn's first language is Ukrainian and she does not speak Hungarian. She said that it was incorrect to say that the deceased did not speak English well. Ms Lynn gave evidence that around the time of execution of the 2003 will, the deceased was alert and coherent and there was no sign of any mental reduction in her faculties. Under cross-examination she said that the deceased told her, at a time which appears to be referable to the 2003 will "I went today and change the will. I put little bit more on my son Arthur because he is poor and the other one is much richer". Although she volunteered that her memory was not good, I accept this evidence.

101 Rosa Romanowski was a very good friend and neighbour of the deceased in the 12 years before her death. She is of Polish origin, speaks no Hungarian and spoke to the deceased in English. They spent a lot of time chatting over coffee at each other's homes. Ms Romanowski deposed that the deceased's heart attack did not affect her mind and conversation. They still enjoyed their conversations after she came out of hospital in 2003. She remained alert and interesting in conversation and could be clearly understood. The deceased was intelligent, her mind was good until her death and she was fully aware of what she was doing. She knew her friends right up until the end. On a number of occasions the deceased said she was very upset with Charles because he owed her money and would not give it back. After the deceased was discharged from hospital in 2003, she told Ms Romanowski that she had made a will and that she had given Arthur more than Charles because Charles had more property than Arthur and Arthur had been good to her. Ms Romanowski never saw Charles at the deceased's home but had frequently seen Arthur mowing the lawn and helping the deceased, who spoke fondly of Arthur.

102 Margaret Snodgrass lived in the same street as the deceased and knew her from about 1989. They shared a common interest in gardening and had light conversations from time to time. The deceased spoke accented English but certainly spoke it well enough for Ms Snodgrass to understand. Ms Snodgrass considered her to be astute, cultured and alert. Her stroke in 2003 left her frail but her faculties appeared to be undiminished. Ms Snodgrass had met Arthur, whom she considered to be a gentle and caring person, and knew that he regularly came to his mother's house to mow the lawns and help generally. She did not meet Charles until after the deceased's death.

103 I found the evidence of these five ladies compelling. Added to the medical evidence and the evidence of Arthur and Mr Battye, which I also accept, I have no doubt that the deceased had testamentary capacity, leaving aside for the moment the specific question of delusions alleged by Charles, which I will consider separately.

104 For Charles it was submitted that his mother was deluded in thinking that he owed her money and that this delusion poisoned her mind such that the 2003 and 2002 wills are invalid.

105 This alleged delusion concerned two alleged oral arrangements or agreements. The first was that shortly after the father's death in 1989, there was a meeting between the deceased, Arthur, Charles' wife Evette and Charles when it was agreed that Charles and Arthur would each give the deceased $30,000 from their inheritance of their father's estate; that Arthur did so; and that Charles did not. The second was that Charles and the deceased had found $75,000 under his father's house shortly after his father's death; that they agreed Charles would give $25,000 of this sum to his mother and $25,000 to Arthur; and that he did not do so.

106 Charles denied both arrangements or agreements, and denied that he owed his mother any money. He said that after his father's death, he asked his mother whether she wanted any money from his share of his father's estate and that she replied she did not want any money from him and that if she needed any money she could always ask him for it.

107 The father's estate was valued at about $130,000 (without the said sum of $75,000) less costs, which Charles and Arthur inherited equally.

108 Arthur's answers to interrogatories were tendered in evidence and included the following: (vii) Q. Did you enquire of Irene Szabo of her reasons for preferring you over [Charles] in respect to your respective shares under the 2003 Will?

A. No, [Arthur] did not ask her the reasons at the time why she was changing her Will, but she did tell him her reasons on a number of other occasions for favouring him over [Charles]. (viii) Q. If so, what reasons did she convey to you?

A. On a number of occasions over some years Irene Szabo told [Arthur] that she was unhappy that [Charles] had received more than [Arthur]. She said that when his father's house (ie the house owned by the late Karoly Szabo) was sold in about 1990 and the proceeds distributed to [Charles] and [Arthur] in accordance with intestacy she had asked both [Charles] and [Arthur] to give her $30,000.00 each from the sale of the house as she had not received anything from the marital home at the time of divorce. [Arthur] gave Irene Szabo $30,000.00 and has a receipt for this. On many occasions she informed [Arthur] that she had asked [Charles] for this money over the years and he had never paid her and this upset her. [Arthur] was present in 2003 when she asked [Charles'] wife Yvette [sic] to tell her husband to pay this money. She also informed [Arthur] that she had asked [Charles'] wife on another occasion to request him to bring back her money. Furthermore, Irene Szabo informed [Arthur] that she and [Charles] had found $75,000.00 in cash in his father's house after his death. She told [Arthur] that she agreed with [Charles] to split the $75,000.00 three ways between herself, [Charles] and [Arthur] but [Charles] never gave her nor [Arthur] their one-third shares of this money. Irene Szabo further told [Arthur] over the years that [Charles] had borrowed money from her on a number of occasions including the $30,000.00 [Arthur] had paid her. When she asked [Charles] to repay such moneys he tore up the IOU which he had given her in front of her as [Charles] had invested such moneys in a number of residential properties. $30,000 Arrangement

109 As regards the $30,000, Arthur gave evidence to the following effect. The deceased, Charles, Charles' wife Evette and Arthur met at his father's former home shortly after it was sold to take an inventory of the contents. Charles asked Arthur "How much money will you give when the house is sold to my mother and I will give the same amount". Charles said he would give $30,000 and Arthur said he would do the same. The father's house was sold soon afterwards for around $130,000 less costs. The estate was distributed equally to Charles and Arthur. Arthur arranged for a friend, John Perry, to write the following undated note, to record his payment to his mother of $30,000 which he, his mother, and Mr Perry all signed: To whom it may concern

I Arthur Szabo give the sum of $30,000 (thirty thousand dollars) to my mother Irene Szabo in payment for her financial contributions over the past seventeen years, towards the initial purchase of the home at 47 Railway Street, Baulkham Hills and to improvements made on it since that time.

110 Arthur also gave the following evidence concerning the $30,000. His mother told him on a number of occasions that she had lent money to Charles to help him with the purchase of some properties, that the loans were to be repaid, and that Charles signed an acknowledgement that he had borrowed such money from her. She later told him that she had asked Charles many times to repay the money and that when she showed him the acknowledgement he ripped it up and said that it was not worth anything. On a number of occasions over some years she said to him words to the effect "I am unhappy that Charles received more money than you. When your father's house was sold in about 1990 and the money went to you and Charles as you know I asked both of you to give me $30,000 each from the sale of the house as I got nothing from it at the time of our divorce. Charles never gave me the money". On many occasions his mother told him that she had asked Charles for this money over the years, that he had never paid her and that this upset her. Arthur was present in 2003 when his mother said to Charles' wife Evette "Please tell your husband to pay me the money he owes me from the sale of my husband's home". His mother told him that she had asked Evette on another occasion to ask Charles to bring back her money.

111 Evette Szabo's evidence did not directly deny that she was present when the $30,000 arrangement or agreement was entered into. However, the general thrust of her evidence was to deny knowledge of any indebtedness of Charles to his mother. Ill health prevented her presence for cross-examination. Given that she could not be cross-examined, I am not prepared to attach much weight to her evidence on this significant aspect of the case.

112 It was submitted for Charles that I should not attach much significance to the signed note recording Arthur's payment of $30,000 to his mother because it stated that it was in payment for her financial contributions. I think that the note provides significant objective support for part of the alleged $30,000 arrangement, although it is not conclusive. Arthur struck me as a person who did not have the guile, or worse, to have invented such a story. He explained the "financial contributions over the past seventeen years" referred to in the note as follows. During that period his mother gave him $500 towards the deposit on the home that he had purchased at 47 Railway Street Baulkham Hills some 17 years earlier for $32,000; and she often helped him pay electricity, phone and rates bills, or gave him $50 or $10 or some such sum when he cut the lawn or went shopping with her. As for the "improvements" referred to in the note, he said that they included painting and a new kitchen (which cost about $1,500) and that the amounts given to him by his mother went towards those improvements. My assessment is that the $30,000 very substantially exceeded his mother's financial contributions.

113 Mr Battye gave evidence that at the time he was instructed in relation to the 2002 and 2003 wills, the deceased referred to a sum of $30,000 and to a sum of $25,000 owed by Charles. Mr Battye was unsure whether they were the same or different sums. The deceased's 2002 note to Charles, written contemporaneously with the 2002 will, said "No problem, because you used the $25,000 a long time ago, which you didn't even bring to pay back to Arpad, it belongs to him".

114 There is a direct conflict in the evidence of Arthur and Charles as to the fact of the $30,000 arrangement between them and their mother. According to the medical and lay evidence that I have accepted, the deceased appeared generally to be rational. Her wills appeared rational. Having regard to the whole of the evidence and to my more favourable assessment of Arthur's credit compared with that of Charles, I find on the probabilities, that the $30,000 arrangement was entered into as explained in Arthur's evidence and that the deceased was not deluded when she told Mr Battye, at the time of giving instructions for the 2003 will, that Charles owed her $30,000.

115 Arthur gave evidence that the deceased told him prior to executing the 2002 will that she and Charles found $75,000 under his father's house after he died; that Charles took the money and kept it although they had agreed to divide it three ways between, her, Charles and Arthur; that she had never received her share from Charles; and that she had asked Charles to pay the money and his answer was always the same: "He doesn't know about it and you don't need it". Arthur did not receive his alleged share.

116 There was evidence, which I accept, concerning Charles' alleged indebtedness from Katalin Nagy. In her affidavit, Ms Nagy recounted the following: 14. … [The deceased] said that: " When his father died, Charles found a large sum of money in the house. I told him at the time that it should be split three ways between me, Charles and Arthur ". Charles said to me " I don't want to give Arthur a share ". Charles did not tell Arthur about it. I told Charles at the time: " You must consider this a loan from Arthur ". She did not tell me how much money Charles found but from the way she spoke it was a large amount. Mrs Szabo told me at the time: " Over the years I have asked Charles many times to repay this loan but he has refused time and time again. I am very unhappy and distressed over this as it is not fair. Charles has used the money for many years and he should pay it back. After all, he has five houses. Charles also owes me other money". I can't remember the details of what she said about the other money that Charles owed her. She adhered to this evidence in cross-examination.

117 Evidence in relation to Charles' alleged indebtedness was also given by Rosa Romanowski. Ms Romanowski deposed that on a number of occasions the deceased said to her "I am very upset with my son Charles. He owes me money and will not give it back". The deceased also told her something about a large sum of cash being found in her late husband's house. I accept her evidence.

118 Further evidence concerning Charles' alleged indebtedness came from Maria Lynn, who considered the deceased to be her very best friend. Ms Lynn testified that the deceased told her that $60,000 was found in the cellar of her late husband's house. I generally accept her evidence. However, having regard to her evidence that her memory is not now good, it is possible that her recollection of precise details, such as the precise amount mentioned by the deceased, may be faulty.

119 Charles testified that the only money he found under his father's house after he died was a sum of a few hundred dollars which he kept. He pointed to a letter dated 31 January 1992 from solicitors for his father's estate, Robilliard and Robilliard, to his solicitors, Michael Dunkel & Co, which said among other things: "Mr A Szabo objects to the reference to $310 found by your client in the house. The actual position was that this $310 was found by your client under the house and he then passed it on to their mother who then opened it and passed it on to Mr A Szabo. Mr A Szabo is prepared to show the $310 as a credit". I do not think that the letter disposes of the point. It is not inconsistent with another amount being found of which Arthur was unaware. In oral evidence, Arthur said, and I accept, that he was present at his father's house when the sum mentioned in the letter was found and that it was the only amount of which he was aware until years later when his mother told him about the $75,000 that Charles had found.

120 Arthur gave evidence that in 2003 he was present when the deceased said to Charles' wife Evette "Please tell your husband to pay me the money he owes me from the sale of my husband's home". Evette's version in her affidavit evidence was that from about early 2001 the deceased would say "Tell Charles to pay me back the money", she would ask the deceased "What money?" and the reply was "You tell Charles". I accept Arthur's evidence as to the occasion in 2003.

121 I do not think it is necessary to make a finding as to whether the $75,000 agreement or arrangement occurred. That is because even if it was a delusion, in my view it did not influence the deceased's dispositions in the 2003 will. The deceased was a testatrix who according to the evidence, which I accept, of her friends, home-carer, solicitor and Arthur, was apparently rational. She made an apparently rational will in 2003, in which she did not preclude Charles, but made substantial provision for him. That will no longer mentioned any indebtedness of Charles, unlike the 2002 will. It is true that the deceased made a statement to Mr Battye, at the time of giving instructions for the 2003 will, that a reason she wished to change it was because Charles had failed to repay to her the $30,000. But, on the finding that I have made, he was indebted to her for $30,000 arising from the separate $30,000 transaction. That was the extent of the influence on the deceased's dispositions of any belief that Charles was indebted to her. She was not influenced by any indebtedness of Charles beyond that amount so far as concerns the dispositions in her 2003 will.

122 If it were necessary to decide whether the $75,000 arrangement was entered into, I would approach the matter as follows. There is evidence, which I accept, that the father engaged in several property transactions which, in addition to savings from wages over a long period, provides a possible explanation for such a large amount of cash having been accumulated. Essentially, it is Charles' evidence which forms the basis of the allegation that she was deluded as to the $75,000 arrangement. I have earlier made a finding as to Charles' credit. The deceased recounted the discovery of a large sum of money or aspects of the arrangement, at least in general terms, to several witnesses, as well as providing Arthur with a detailed account. His mother was rational according to a large body of lay and medical evidence, which I have accepted, and she made rational wills. The picture of the deceased painted by the evidence that I have accepted is one of such rationality that, although I have a doubt as to whether the $75,000 arrangement was entered into, it is insufficient, having regard to the whole of the evidence, to prevent me finding for the wills propounded.

123 It was submitted for Charles that the deceased was suffering from a delusion that he had stolen her jewellery.

124 Charles agreed that items did disappear from his mother's house, and said that his mother may have confused the rings she claimed had been stolen or lost with rings which his wife wore. I accept that evidence.

125 Charles' evidence was that from about 1999 his mother expressed the belief that people, particularly him, were stealing from her home, and that in, and after, 2000 his mother falsely accused him of stealing her diamond ring and putting the stone into his wife's engagement ring, and of stealing other rings, jewellery and gold objects. Charles denied that he was the thief. Evette Szabo denied any knowledge that he was the thief.

126 Arthur's evidence was that his mother said to him on a number of occasions that some of her jewellery had gone missing. On one occasion about five years before she died she said to him that her diamond ring had disappeared. She later told him she saw Evette Szabo wearing it and that Evette told her that Charles had given it to her. Katalin Nagy, the deceased's home carer from October 2003 to January 2004, recalled that there was something mentioned by the deceased about jewellery, the details of which she could not recall clearly. She did remember that the deceased said she saw her daughter-in-law wearing some jewellery that originally belonged to her, and also recalled her saying that some jewellery was not returned to her. Maria Lynn said that the deceased told her that a long time ago someone was in her house and she lost some jewellery, and that somebody had pinched at least one piece of her jewellery.

127 The 1999 and 2002 wills contained the statement "All my jewellery has been sold". Mr Battye gave evidence, which I have previously recounted, as to how this came to appear in those wills. It was removed from the 2003 will.

128 It is unnecessary to decide whether the deceased's accusation that Charles took the jewellery was correct because it had no influence on the dispositions under her 2003 will. Nor did it influence her dispositions under the 2002 or 1999 wills. The very words "All my jewellery has been sold" in the those wills indicate that whatever she may have said about jewellery having been stolen, it was not influencing her when it came to making dispositions under them. The omission of any reference to jewellery in her 2003 will suggests that at that time she put the matter of jewellery out of consideration entirely when making testamentary dispositions. There is no evidence that anything to do with jewellery was mentioned by the deceased as influencing her disposition under any will.

129 Further, I am not satisfied that the deceased's accusation against Charles evidences a delusion. Charles admitted in cross-examination that certain items did disappear from his mother's house and he said that she may have confused rings which she claimed had been stolen or lost with rings which his wife wore. The deceased's apparent belief that Charles was the thief may have been a serious mistake, but it was not, I think, so irrational as to evidence a delusion.

130 In my opinion, for these reasons the deceased had testamentary capacity and knew and approved of the 2003 will. The 2003 will is therefore valid. I am of the same opinion in relation to the earlier wills.

131 I make the following orders: (1) Order that probate in solemn form of the will of Irene Szabo dated 19 August 2003 be granted to Arthur Szabo and Chris Battye. (2) Order that the proceedings be remitted to the Registrar to complete the grant. (3) The exhibits may be returned.

132 If any party wishes to make a costs application, they may do so by restoring the matter before me within one week by arrangement with my associate.

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