The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak

Supreme Court of NSW|2015-05-13|Before: Hallen J

Introduction

HIS HONOUR: This judgment concerns two contested proceedings involving the estate of Stanislaw Budniak ("the deceased"). On 3 November 2014, the court ordered that the proceedings should be heard consecutively, with the evidence in one being evidence in the other. The hearing of the two matters proceeded over 7 non-consecutive days. However, as the oral submissions did not conclude, it was necessary to allow the parties an opportunity to serve further submissions to which submissions in reply were also served. The court received all of the submissions by 29 May 2015.
The first proceeding in time was commenced by Statement of Claim, filed on 9 November 2012, with an Amended Statement of Claim filed on 12 June 2013. In those proceedings, the Plaintiff, the NSW Trustee & Guardian ("the NSW T & G") propounded a copy of a duly executed Will made by the deceased on 3 October 2007 ("the 2007 Will") (Ex. A) and it sought consequential relief. It is the sole executor named in the 2007 Will.
During the proceedings, on occasions, the NSW T & G was referred to as the Public Trustee. I shall also identify it in this way, when necessary, in these reasons. (The NSW Trustee and Guardian Act 2009 (NSW) commenced on 1 July 2009. Section 4 repealed the Public Trustee Act 1913 (NSW). Section 5 constituted the corporation called the NSW Trustee and Guardian. Under clause 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act, any reference in a previous Act to the Public Trustee is to be read as a reference to the NSW Trustee. Under clause 11 of Schedule 1, the NSW T & G is taken, for all purposes, to be a continuation of the former Public Trustee.)
The Defendants named in the first proceeding are four of the five children of the deceased, namely, Robert Zbigniew Budniak, Lech Jerzy Budniak, Eliza Kyrstyna Budniak, and Joanna Maria Borysewicz (nee Budniak). They relied upon one composite Defence (to the Statement of Claim) filed on 19 December 2012, identifying two grounds for opposition to the relief sought, namely that the deceased lacked testamentary capacity and that he did not know and approve of the contents of the 2007 Will. Only Robert filed a Cross-Claim to which I shall return. I shall refer to these proceedings as "the Probate proceedings".

The Probate Proceedings

I have briefly referred to the amended Statement of Claim and the Defence filed by the Defendants named in the Statement of Claim. As stated in a summary way, the Defendants in the Probate proceedings asserted that, in May 2007, when giving instructions for, and in October 2007, when he executed, the 2007 Will, the deceased lacked testamentary capacity. They also alleged that he did not know and approve the contents of the 2007 Will. (They admitted, however, that if it was a valid Will, it was not subsequently altered or revoked.)
The Defence to which I have referred provided the following particulars: "(i) The deceased suffered dementia; and (ii) Such other matters as may be disclosed after documents are produced."
The Defendants relied upon evidence of the deceased's age, his conduct, his deteriorating health prior to giving instructions for the 2007 Will, his deteriorating health after giving instructions for the 2007 Will, the circumstances under which he gave instructions for the 2007 Will, the circumstances surrounding the execution of the 2007 Will (some 5 months later), the terms of the 2007 Will itself, the deceased's poor recollection of relevant, and important, facts and events occurring in his lifetime, and what was said to be his long held testamentary intention to divide his estate equally between his five children. (I have taken this broad summary from the closing submissions made on behalf of the Defendants.)
Importantly, the Defendants did not specifically raise in the pleadings, the facts that the 2007 Will was written in English; that no written translation of the 2007 Will into Polish was prepared for the deceased to read prior to execution of the 2007 Will; and that there was no record of any person at the NSW T & G reading the 2007 Will, in the Polish language, to the deceased.
However, when I raised this matter, at the commencement of the hearing, senior counsel for the Defendants said "it's not pleaded but it's clearly in the evidence and canvassed by the parties": T3.50-T4.01. It was suggested by the court that if these matters were to be relied upon, they should be identified to counsel for the NSW T & G: T4.19-T4.26. However, counsel for the Defendants did not seek to file any amended Defence to the amended Statement of Claim pleading the matters to which the court had adverted.
In their Outline of Closing Submissions, served on the last day of the hearing, counsel for the Defendants made reference to the particulars provided in Paragraph 6(a) of the Defence, filed 19 December 2012, that "the deceased had no demonstrated ability to read (visually) the [2007 Will]"; that he "had no demonstrated ability to comprehend the [2007 Will]"; and that "such particulars of testamentary capacity as are relevant to knowledge and approval".
This submission was made despite Robert, in his oral evidence, having acknowledged the deceased's long held ability, in late 2006, to read, and understand, written English: T213.33-T213.34 (as amended). I shall return to Robert's evidence on this topic later in these reasons.
The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge; that, by that evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the NSW T & G, as propounder, to prove, affirmatively, the validity of the 2007 Will.
Only Robert filed, relevantly, a Further Amended First Cross-Claim, in which, he sought a declaration that an original document, written and signed by the deceased in the English language (and on the other side, in the Polish language) and dated 25 June 1994 ("the 1994 document") (Ex. B), is an informal testamentary document within the meaning of s 8 of the Act; an order that administration of the 1994 document be granted to him; and consequential relief. He is the sole nominated executor in the 1994 document.
It is quite clear from the affidavits that were read in the proceedings, that Robert has had, and continues to have, the support of his three siblings (who are Defendants) to the granting of the relief he seeks.
Robert, in the Further Amended First Cross-Claim pleaded that, in the event the court did not find the 1994 document was intended by the deceased to form his Will, and if the 2007 Will was not the last valid Will of the deceased, the deceased died intestate. He sought a grant of administration of the deceased's estate on intestacy to him alone; an order that the administration bond be dispensed with; other consequential relief; and costs. (This alternative case did not proceed for reasons to which I shall come.)
The NSW T & G filed a Further Amended Defence to the Further Amended first Cross-Claim, in which it admitted that the deceased signed the 1994 document; did not admit that it embodied his testamentary intentions; or that the deceased intended the 1994 document to form his Will. In addition, the NSW T & G implicitly asserted that even if the court were satisfied that the deceased intended the 1994 document to form his Will, it was revoked by the 2007 Will. (Robert accepted that this was one consequence if the 2007 Will was found to be a valid Will: T5.30-T5.34.)
However, at the hearing, counsel for the NSW T & G accepted, in the event that the court was not satisfied of the validity of the 2007 Will, that the relief sought by Robert in respect of the 1994 document should be granted: T5.09-T5.23.
Thus, the only question at issue, in the Probate proceedings, was whether the 2007 Will is a valid Will, that is to say, whether the deceased had testamentary capacity and whether he knew and approved of its contents.

The Family Provision Proceedings

The family provision proceedings were commenced by one Summons filed on 18 May 2012, within the time prescribed by the Act (12 months from the date of the deceased's death). The Defendant named in the proceedings is the NSW T & G. It was the appropriate and natural Defendant, even though there was no grant of administration made to it.
As stated earlier, it is only in the event that the 2007 Will is found to be the last valid Will of the deceased, will it then be necessary to turn to the claims for a family provision order by each of the Defendants: T5.48-T6.06. In broad summary, the NSW T & G submitted that each of the applicants for provision is an adult; each is able bodied; each is in employment or capable of being employed; and each has assets of reasonable value. The consequence, so it was submitted, was that no order for provision ought to be made for any of the Defendants and that the whole of the Summons should be dismissed with costs.
In the case of Lech's claim for a family provision order, there was said to be an additional issue relating to his virtually non-existent relationship with the deceased for about 30 years prior to death.

Persons Adversely Affected

Although the NSW T & G is the Plaintiff in the Probate proceedings and the Defendant in the family provision proceedings, the persons who would be adversely affected if orders were made in favour of Robert in the Probate proceedings, or in favour of Robert, Lech, Eliza or Joanna in the family provision proceedings, are Tomasz and Benjamin (a son of Tomasz and a nephew of all of the Defendants), both of whom are the residuary beneficiaries named in the 2007 Will. Only Tomasz has given evidence read in both proceedings. Benjamin is a minor.
At the commencement of the hearing, Mr S Mitchell, solicitor, announced that he was representing Tomasz, and Nathalie Budniak, Tomasz's wife and the mother of Benjamin, in the proceedings. He said, however, that he did not seek to appear formally on their behalf although he had filed an Appearance on behalf of Benjamin by his tutor, Nathalie: T1.44-T1.50. Mr Mitchell understood that, in the proceedings, the NSW T & G was representing the interests of Tomasz and Benjamin (which was confirmed by counsel for the NSW T & G).
Tomasz subsequently gave evidence that Mr Mitchell had been retained from a short time after the death of the deceased to advise him in relation to the proceedings. However, Mr Mitchell had not participated in the preparation of the affidavits by Tomasz and Nathalie that were read in each proceedings.
In the circumstances, it was not necessary for Mr Mitchell to remain in court unless he was instructed to do so. He remained for a short time (but then came and went at different times during the early part of the hearing). Meantime, without objection, however, Tomasz was present in court throughout the proceedings, as was Nathalie (other than during the cross-examination of Tomasz).

Events before Proceedings Commenced

By letter dated 23 June 2011, the Defendant's then solicitors wrote to the NSW T & G asserting that the deceased "suffered from dementia for a considerable number of years and most importantly, at the time [the 2007 Will] was executed". They asserted that the Defendants would require the Will to be proved in solemn form and that "our clients will be seeking to file evidence disputing that the deceased had testamentary capacity at the time the will was made". The letter also stated that "[i]n the event that will is proved, our clients will be making application for provision pursuant to the provisions of the Succession Act". Various requests were then made concerning, and questions were asked about, the estate.
The NSW T & G responded in a letter dated 5 July 2011. In relation to the assertion of a lack of testamentary capacity, a question was asked about the availability of medical reports to support the claim. The other questions raised were answered.
On 14 July 2011, the Defendants filed a caveat requiring proof in solemn form of the 2007 Will (Ex. E). There is no specific evidence that a copy of the caveat was served on the NSW T & G within 7 days after filing: Supreme Court Rules 1970 (NSW) ("SCR"), Part 78 rule 68(3).
In accordance with SCR, Part 78 rule 69, the caveat, which took effect when it was filed, lapsed after 6 months, as there was no application to extend the duration of the caveat.
On 21 May 2012, the NSW T & G caused notice of its intention to apply for Probate of the 2007 Will in the Sydney Morning Herald, which is a newspaper circulating in the district where the deceased resided at the date of his death.
On 14 June 2012, the NSW T & G filed a Summons seeking Probate in common form of the 2007 Will.
On 29 June 2012, the Defendants filed a general caveat in the Probate Registry, against the making of any grant in the estate of the deceased without prior notification to them.
On 2 July 2012, the court issued a requisition to the NSW T & G noting that a caveat had been filed in the estate and drawing its attention "to Div. 10 Pt. 78 SCR". That Division of SCR deals with caveats.
Subsequently, on 9 November 2012, the NSW T & G filed the Statement of Claim.
I am satisfied that all of the persons whose interests may be affected by the court's decision in relation to each of the documents propounded in the proceedings, are well aware of the proceedings. In the circumstances, I dispense with service of the prescribed notice on Benjamin upon the basis that it is expedient to do so, having regard to all the circumstances, including because his interests are being protected by the NSW T & G, so as to save further expense, and also because his father, who is an equal residuary beneficiary named in the 2007 Will, has obtained independent legal advice.
Although there is no evidence of service of the prescribed form of notice of the family provision proceedings on Benjamin, I am satisfied, in view of the fact that Mr Mitchell attended on occasions during the hearing, that Benjamin, by both of his parents, is well aware of the nature of the proceedings. Accordingly, service of such a notice upon him (or someone on his behalf) is unnecessary in the circumstances of the case.
As each of Tomasz and Benjamin is a beneficiary named in the 2007 Will, and even though Tomasz, who is an eligible person, has not commenced proceedings for a family provision order, should it be necessary, I shall not disregard the interest of each as a beneficiary named in the 2007 Will. (There is no suggestion that Benjamin is an eligible person under the Act.)

Some Other Preliminary Matters

Although the NSW T & G seeks Probate in solemn form of a copy, rather than the original, of the 2007 Will, the Defendants, subject to the defences raised, accepted that there actually was an original 2007 Will; that the original 2007 Will revoked all previous Wills; that there was evidence of the terms of the original 2007 Will; that the copy 2007 Will in evidence was an accurate and complete copy of the terms of the original 2007 Will; that there was evidence of due execution by the deceased of the original 2007 Will; and finally, that the presumption that when a Will is not produced it has been destroyed by the testator with the intention of revocation, had been overcome (T3.06-T3.12): Curley v Duff (1985) 2 NSWLR 716, at 718; Cahill v Rhodes [2002] NSWSC 561, at [55]; Scott v Romanoff [2015] VSC 343 at [10].
No doubt, the concessions were made because of the evidence given by Mr G A Salier AM, which I accept, concerning the loss of the original of the 2007 Will. In an affidavit sworn on 12 April 2013, he stated that he had caused his law stationer to uplift the original of the 2007 Will, from the court, on or about 18 February 2013; that he received it into his possession shortly thereafter; that he sent the original 2007 Will, and an affidavit of the attesting witness, Mr N Mohammed, by ordinary pre-paid post, under cover of a letter dated 22 February 2013, to the NSW T & G; that there is no record of receipt by the NSW T & G of his letter, the affidavit, or the original 2007 Will; and that the documents that he sent have never been returned to him as unclaimed.
Mr Mohammed who remains in the employ of the NSW T & G, gave evidence that he made enquiries of the "Mail Room at the Parramatta Office of the NSW Trustee & Guardian" and reported that "There is no record there of receipt of the documents" sent by Mr Salier.
It follows that the loss of the original 2007 Will was not the result of any act of the deceased and it was unaccompanied by any intention of the deceased to revoke it. It was entirely accidental and its loss occurred post death.
The form of order sought by the NSW T & G in the amended Statement of Claim, namely that "subject to due compliance with the rules of the Court, probate of a copy of the Will be granted to the [NSW T & G]", does not accord with what has been described as "conventional practice" in Probate and in some of the authorities.
I refer to what was written by E M Heenan J in Powell v Dinwoodie [2012] WASC 139, at [40]: "The conventional practice is that where an original will or codicil is lost, destroyed or damaged and an application is made for an order admitting it to proof as contained in a carbon copy, draft, photocopy or reconstruction, the grant made, if the will has been lost, should be limited until the original or a more authentic copy is proved; and, if the will has been destroyed, the grant which issues should be limited until a more authentic copy is proved: Williams, Mortimore [sic] & Sunnucks, Executors, Administrators & Probate (19th ed, 2008) para 24-03. Such a grant is one form of a limited grant known as a cessate grant - Tristram and Coote's Probate Practice (28th ed, 1995) paras 11.11, 13.81 and 13.82."
In New South Wales, in Taylor v Waters (Supreme Court, Powell J, 19 June 1992, unrep), Powell J expressed the view that if there was a lost will, or a will that was known to have been destroyed, the English practice was to limit the grant, until the original, or a more authentic copy, be proved. His Honour thought that this practice might conveniently be adopted in New South Wales.
This form of order has also been adopted in some other States: In the estate of Musolino (deceased) [2008] SASC 334, at [30]; In the Will of Brian Lindsay O'Connor [2011] QSC 360; and Lemon v Lemon [2014] QSC 123; Powell v Dinwoodie, at [41].
However, Young CJ in Eq (as his Honour then was) in Koerstz v Norman [2008] NSWSC 133, at [8], expressed the view that "where the facts are proved… that the original will was destroyed by a person other than the testator after death, it will never be able to be proved. There is no barrier to proving a will by a copy with evidence that the original has been lost and in such a situation, I cannot see why the court should not just grant probate or letters of administration with the will annexed as the case may be".
His Honour went on at [11]-[12] and [18]-[19]: "One can understand those cases, and one can understand cases like Re Campbell [1948] NZLR 510 also referred to in the Probate Practice, where secondary evidence was given of a lost will. However, where the facts clearly are that the last will of the testatrix has been destroyed after her death and a fair photostat copy with signatures is produced to the registry, in my view the proper practice is to make an unlimited grant. As White J said in Re Gwynne at 216, the 'limitation does not invalidate the grant. It merely leaves the door open in case the original is discovered.' Where there is no realistic possibility of the original will being produced, there is nothing to be gained through making a limited grant. … In cases where there is probate granted of a copy of a will and the original is found, it would be the duty of the administrator to apply for cessate probate. Accordingly, it would be the duty of the administrator to apply for an unlimited grant of probate should she find the original will and query also if there was a clear case that any application for an unlimited grant of a lost will would succeed. It may be that for the future where there is a mislaid will or a case where probate is granted of a statement by reliable witnesses who have seen the original of a lost will, an undertaking should be taken from the proposed administrator to prove the will should better evidence or a better document become available. In this way the attention of administrators who may not have access to a copy of [1953] VLR to their obligations would assist."
In this case, the evidence reveals that the original 2007 Will has been lost, rather than destroyed. Despite the passage of time since it was lost, bearing in mind the evidence that has been relied upon, there is a possibility that the original 2007 may be located by, or may be returned to, the NSW T & G. Should it be necessary, to limit the grant "until the original will be proved" would imply that the original 2007 Will might still be proved, which is not contrary to the evidence given by Mr Salier.
I discussed the form of orders that might be made in the event that the court is satisfied that the 2007 Will is the last valid Will of the deceased with counsel for the parties during the course of the hearing and they agreed that the conventional form of order would be appropriate in this case: T66.24-T67.20. Accordingly, if the court is satisfied of the validity of the 2007 Will, probate in solemn form of the copy Will, limited until the original is proved, should be granted to the NSW T & G, and an order should be made that the Further Amended first Cross-Claim be dismissed.
In an affidavit of Ms L Russell sworn 5 June 2012, the deponent confirmed that if granted Probate, the NSW T & G would administer the estate according to law. She also deposed to the reason for delay in making the application for a grant being "due to a caveat lodged".
With the leave of the court, and without objection, Robert gave oral evidence that in the event that an order were made that the deceased intended the 1994 document to form his Will and was satisfied that it was the last valid Will of the deceased, he was willing to take on the office of executor; that he was prepared to administer the deceased's estate in accordance with the requirements of that document, and, if necessary, to continue all orders of the Court and answer any requisitions relevant to that estate: T202.04-T202.12 (as amended). He was not cross-examined on any of these matters.

Family History and Background Facts

The following facts are uncontroversial, or I am otherwise satisfied that they have been established by the uncontroverted evidence relied upon in the proceedings.
The deceased was born in Wegrzynowo, Poland in February 1922, and he died on 21 May 2011, leaving property in New South Wales.
The deceased's Death Certificate, registered under the Births Deaths and Marriages Registration Act 1995 (NSW), reveals the cause(s) of death, as "(I)(a) Aspiration pneumonia, days; (b) Dementia, years; and (II) Right pneumonectomy". The "Informant" identified on the Death Certificate is Tomasz.
During World War II, the deceased had fought in Poland as a member of the Polish Home Army. He had fought in the Warsaw Uprising. He was captured by the Germans and marched to Germany, where he spent time as a prisoner of war. He was liberated by the Americans, and, in about 1950, the deceased migrated to Sydney, Australia.
The deceased married Genowefa Czekalowska, in 1955. She was born in Poland in March 1929. She had migrated to Perth, Australia, also, in 1950. Subsequently, they moved to Sydney, in 1956, where they lived for the remainder of their lives.
The deceased, initially, worked at BHP in Port Kembla as a fettler. He then returned to Sydney and obtained employment in the electronics industry. From 1960 until about 1983, he worked as an electronics technician for the University of New South Wales.
The deceased and Genowefa separated in about 1982, and in about 1992, their marriage was formally dissolved. Following the dissolution of the marriage, the deceased did not remarry, or enter into a de facto relationship.
There were five children of the marriage, being Robert, who was born in October 1957, Lech, who was born in February 1959, Eliza, who was born in June 1962, Tomasz, who was born in November 1965, and Joanna who was born in September 1972.
After their separation, there had been proceedings in the Family Court of Australia, at Sydney, between the deceased and Genowefa. She sought various orders relating to the properties that she, and they, owned, as well as orders for custody of Tomasz and Joanna and for maintenance for each of them. Robert swore an affidavit in support of Genowefa's application
In 1983, Robert married Fiona Edgar and he moved out of the Ashfield property. Robert and Fiona have two daughters, being Jacqueline, born in May 1987 and Elise, born in August 1990.
In 1987, Eliza married James Ilett and she moved out of the house in which Genowefa lived. They have one son, Sebastian, born in January 2002.
In 1995, Lech married Sharron Mackay. They have three children, namely Daniel, born in December 1997, Brendan, born in December 1999, and Samantha, born in January 2002.
In 1998, Joanna married Andrew Borysewicz. They have four children, being Zara, born in September 2003, Kayla, born in January 2006, Markus, born in December 2008, and Ashton, born in November 2010.
In 1999, Tomasz married Nathalie. They have three children, namely Benjamin, who was born in July 2002, Amelia, who was born in July 2004, and Maximilian, who was born in July 2006.
In 1956, the deceased and Genowefa purchased as joint tenants, a property situated at Palace Street Ashfield ("the Ashfield property"), which became the family home until about 1983. Thereafter, the deceased, until his death in 2011, continued to reside in the Ashfield property.
In 1970, the deceased and Genowefa purchased a property situated at Service Avenue, Ashfield ("the investment property").
In about late July, or early August, 1994, the deceased returned to Poland for the fiftieth anniversary of the Warsaw Uprising. (The anniversary of the uprising is celebrated from 1 August each year.) He returned some weeks later.
It appears from Ex. D, that the deceased lodged his income tax return for the financial year ending 30 June 2005. A Notice of Assessment, dated 7 October 1995, issued by the Australian Taxation Office, revealed that the amount of tax payable by the deceased (by 21 March 2006) was $12,504.30. Attached to the Notice of Assessment was a Notice, dated 9 October 2005, headed "Your introduction to PAYG income tax instalments", which document stated that "as your return includes… investment income, you have entered the pay as you go (PAYG) instalments system. As a result, you will need to pay PAYG instalments towards your expected tax liability on your business/investment income".
There was also included in Ex. D, a letter, dated 21 April 2006, from the ATO to the deceased, referring to a telephone call "regarding your income tax account". Attached to the letter was "an account history" (of several pages), which included "transactions processed up to 21 April 2006". The letter also reminded the deceased "that an amount of $12,504.30 remains outstanding".
An "Overdue Payment Reminder", dated 6 June 2006, from the Australian Taxation Office, sent to the deceased, reminded him that $2,877 was due.
Dr Lye (to whose evidence I shall return) interviewed the deceased in relation to his concerns regarding the ATO in May 2007. A copy of her notes of the interview (Ex. S) includes the deceased having said to her that he "has no idea what he owes. Wants yearly not quarterly bills…. Requested tax statements from ATO re: what he owes & they owe him." (I shall return to Ex. S later in these reasons.)

The Testamentary Documents

There are three testamentary documents that have been produced to the court being, first, the photostat copy of the original 2007 Will (Ex. A); second, the original of both sides of the 1994 document (Ex. 1); and the third being the original of both sides of a handwritten document dated 2 June 1988 ("the 1988 document") (Ex. 2). I shall deal with these documents in reverse date order.
The 2007 Will, relevantly, is in the following terms: "1. This Will sets out completely who I want to give my property to after my death. I cancel any earlier Wills and Codicils. EXECUTOR AND TRUSTEE 2. I appoint the Public Trustee of New South Wales the executor and trustee of this Will. GIFTS 3. I give all of my property, after payment of my estate liabilities to those of the following people who survive me and reach 21 years of age: - my son THOMAS BUDNIAK - my grandson BENJAMIN BUDNIAK. … 4.2 Wherever a beneficiary is conditionally entitled to any property, I direct my Trustee to pay him or her any income earned by it after the beneficiary reached 18 years of age. (By conditionally entitled I mean that the beneficiary would be entitled to immediate payment but for the fact that he or she has not yet reached a specified age.) … 6. The term 'estate liabilities' includes: - my funeral expenses - all debts I owe when I die - all expenses my Trustee incurs in administering the estate - all charges my Trustee makes for doing the work."
The 2007 Will was professionally drawn by Matthew Kennedy, a Branch Manager of the NSW T & G, who met with the deceased, and others, on 8 May 2007. Mr Kennedy took instructions from him, at that time, for the 2007 Will and subsequently drafted the 2007 Will. Mr Kennedy was not present when the deceased executed the 2007 Will on 3 October 2007. I shall return to a more detailed account of Mr Kennedy's evidence later in these reasons.
The 2007 Will bears a conventional attestation clause and signatures indicating that the 2007 Will had been signed by the deceased in the presence of "T Di Donato" and "N Mohammed". There is no dispute that the deceased signed the 2007 Will or that it was otherwise duly executed in accordance with the Act.
There is no evidence that, at any stage after the 2007 Will had been executed, the deceased expressed a desire and wish to change this Will.
The 1994 document, which is in the handwriting of the deceased, is written in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.
The English version, which is set out as it appears, is as follows: " Ashfield 25-6-1994 xxxx St It will be my Will (Destament). I Stanislaw Tadeusz Budniak borne 21-2-1922 in Wegrzynowo, Poland, solenly declare that it is my wish, in case of my death, to leave my estate and all my posetion, to my 5 (five) children, Robert Budniak, Lech Budniak, Eliza Budniak, Tomasz Budniak, and Joanna Budniak. All my estate and posetion will be divided eqally among mentionet children. I do nominate my son Robert Budniak as executor of my Will (Destament). The above is truth and I do to put a seale of my signature. Stanislaw Tadeusz Budniak [SIGNATURE] Ashfield 25-6-1994"
There is no attestation Clause in the 1994 document. Whilst the deceased's signature appears on each side, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1994 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1994 document was written, are not known.
A friend of the deceased gave Robert the original of the 1994 document in 1994 (whilst the deceased was in Poland at the anniversary celebrations of the Warsaw Uprising). Upon his return, the deceased "took it back in 1994": T201.40-T201.46 (as amended). (Robert had offered to retain the 1994 document but the deceased told him to return it and that he would retain it with his papers.)
After the deceased's death, Tomasz found the 1994 document in a dresser drawer next to the deceased's bed in the deceased's bedroom in the Ashfield property: T344.16-T344.28.
(There are holes punched on the side of the original 1994 document, which it is accepted, were not there when it was found by Tomasz. The parties accept that Tomasz had caused these holes to be punched in the 1994 document, inadvertently, whilst the document was in his custody: T14.40-T14.45. Nothing turns on this.)
For reasons that are not entirely clear, since the words in the 1994 document were written by the deceased in English, the Defendants, without objection, tendered (Ex. 4) an agreed English translation of the Polish words in the 1994 document. That translation is as follows: "I Stanislaw Tadeusz Budniak of Jan and Jozefa from Nowotkow and born 21-2-1922 year, of my own and unforced will, wish to leave my will of my own free will, in the case of my death all my wealth, that is, real estate and personal property- be left to my children (five of) Robert Budniak, Lech, Eliza, Tomasz and Joanna. Every one of them should get equal parts divided that is 20% of the whole wealth. My personal documents should be sent to Poland. The executor of this will I appoint as my son Robert as the executor of my will. The above I state with my own handwritten signature."
Although neither party sought to propound it, the 1988 document is in the handwriting of the deceased and was signed by him, in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.
There is no attestation Clause in the 1988 document. Whilst the deceased's signature appears on both sides of the document, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1988 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1988 document was written, are not known.
The English version, which is set out as it appears, is as follows: " Ashfield 2-6-88 xx xxxxx St It will be my Will (Destament) I Stanislaw Tadeusz Budniak borne 21-2-1982 in Poland, solenly declare that it is my wish, in case of my death, leave my estate and my all posetion, to my 5 (five) children, Robert Budniak, Lech Budniak, Eliza Budniak, Tomasz Budniak i Joanne Budniak. All my estate and position will be deviaded eacwaly among above mentioned children. I do mominait my son Robert Budniak as acxecutor of my Will (Destament) The above is truth and I do to put a seal of my signature Stanislaw Tadeusz Budniak [SIGNATURE] Ashfield 2-6-1988"
Neither party relied upon the 1988 document, presumably because the original has the word "cancelled" written across part of it. There is no dispute that the word is in the handwriting of the deceased and that underneath the word is the deceased's signature.
There is no evidence of the circumstances in which the 1988 document was written. There is also no evidence of when the deceased wrote the word "cancelled" on the 1988 document, or when he placed his signature underneath that word.
It was accepted by the parties that the deceased intended to revoke the entire 1988 document by writing the word "cancelled" on it: s 11(1)(d) of the Act. Neither party sought a declaration, under s 8 of the Act, that the 1988 document was revoked, the Court being satisfied that the deceased intended it to be a full revocation of the 1988 document. (In any event, there was no need for Robert to propound the 1988 document in light of the concession made by the NSW T & G regarding the 1994 document.)
It was not suggested, however, that the 1988 document is without relevance.

The Nature and Value of the deceased's Estate

In an affidavit sworn on 18 September 2014, by Ms L Russell, a Branch Manager of the NSW T & G, at its Burwood Branch, the deceased's estate, at the date of death, was disclosed as having an estimated value of $3,308,379. The estate was said to consist of the Ashfield property ($730,000), money in bank accounts ($761,036), shares in public companies ($1,221,801), additional shares ($493,454) and other property ($102,087). (I have omitted, and shall continue to omit, any reference to the cents, which accounts for any small differences in addition.)
The liabilities of the deceased, at the date of death, in total, were disclosed at $124,646, although a "possible tax liability" of $100,000 was also disclosed. Of those liabilities, the funeral account ($4,783) was paid out of funds held in the estate. Testamentary expenses, incurred by the estate, after death, totalled $11,517, which expenses have also been paid out of funds held in the estate. The balance in the estate account (being dividends received after death), then held, was $49,399.
Ms Russell estimated the total commission for administration of the deceased's estate to be $46,461.
Despite a direction having been made on 4 November 2014 that any updating affidavits required by Paragraph 17 of Practice Note SC Eq 7 should be served with the original to be delivered to my Chambers by 25 March 2015, the NSW T & G did not serve an affidavit updating the nature and value of the deceased's estate until the morning of the hearing.
Subsequently, on the fifth day of the hearing, the parties provided a mostly agreed Schedule (Ex. P), which set out the assets and liabilities of the estate, together with estimates of the value of the assets and the estimated liabilities at the date of hearing. The deceased's estate was said to consist of the Ashfield property ($1,250,000), cash in bank or on investments ($1,040,986) plus uncollected interest ($16,300), shares and unit trusts ($1,609,661), monies held by the NSW T & G in an estate account (including dividends that have been received) ($155,965), and an estimated value of uncollected dividends ($132,000).
The liabilities of the estate included an amount for income tax and CGT on sale of estate assets ($607,000 as estimated by the NSW T & G, or $350,000 as estimated by Robert), the capital commission payable to the NSW T & G ($52,844), other estate liabilities ($48,684), costs and expenses of sale of the Ashfield property ($32,500), costs and expenses of sale of shares ($32,193 as estimated by NSW T & G and $3,000 as estimated by Robert), making a total of $773,222 (as estimated by the NSW T & G) or $487,029 (as estimated by Robert).
Thus, the parties agreed (in Ex. P) that, at the date of the hearing, the estimated value of the deceased's estate, after deducting the estimated liabilities (but not the costs of these proceedings) was between $3,431,711 and $3,717,904. (I note that there is an error in the addition of the interest in Ex. P, which results in the estimated value being reduced by $20. However, nothing turns on that miscalculation.)
In calculating the value of the deceased's estate, finally available for distribution, the costs of the two proceedings should also be considered.
The legal representative of each of the parties sought to make no differentiation between the two proceedings in the calculation of the costs and disbursements. However, I note that all of the evidence has been considered in both proceedings and the parties seem to have approached the matter upon the basis that there is evidence in the affidavits filed in each matter relevant to both matters.
The NSW T & G's solicitor, Mr G Salier, estimated the costs and disbursements, including both junior counsels' fees, calculated on the indemnity basis, to be $220,000 (inclusive of GST and upon the basis of a seven day hearing).
The Defendants' solicitor, Mr A K Gokani, estimated the costs and disbursements of the proceedings, including senior and junior counsel's fees, calculated on the indemnity basis, calculated until the completion of the hearing, to be about $650,000 (inclusive of GST and upon the basis of a seven day hearing of both matters) and to be $576,000, calculated on the ordinary basis (inclusive of GST and upon the basis of a seven day hearing of both matters). Despite the quantum of the Defendants' costs and disbursements, there was said to be no uplift factor included in the costs that had been estimated. (It may become necessary for the Defendants' solicitor to explain why the costs and disbursements are so high.)
Of the total amount estimated as the Defendants' costs, $481,000 had been paid by the four Defendants (in equal shares) to their solicitor prior to the hearing. The parties agreed that, depending upon the costs order made in one, or both, matters, some, or all, of the amount paid by each (about $120,000) may be reimbursed to him or her.
If the estimates of costs prove accurate, and if an order is made that all of the costs, calculated on the indemnity basis are to be paid out of the estate of the deceased, the estimated value of the estate available for distribution will be between about $2.56 million and about $2.84 million.
Of course, depending upon the result of each of the proceedings, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.
It can be seen, that the costs of the proceedings, may significantly impact upon the value of the estate available for distribution and also upon the financial and material resources of any party, or parties, who may be ordered to bear the burden of costs.
The possibility exists that not all of the costs incurred by one party, or the other, or both, will be ordered to be paid out of the estate. The parties wish to argue how the burden of costs is to be borne, and by whom, following the determination of both proceedings. The parties submitted that the court should allow further submissions, if necessary. I shall abide this request in view of the quantum of costs.
Hopefully, it will not be necessary to incur further costs on the determination of the costs issue. However, that will be a matter for the parties, and perhaps, Tomasz and Nathalie (on behalf of Benjamin).
The only persons who are eligible persons, within the meaning of the Act, are the five children of the deceased. Only Tomasz has not commenced proceedings under the Act for a family provision order. However, he is clearly aware of the proceedings as he is a witness who has sworn at least one affidavit in the proceedings.
There was no suggestion that any of the grandchildren of the deceased, including Benjamin, is an eligible person within the meaning of s 57(1)(e) of the Act.

The Evidence of Witnesses from the NSW T & G regarding the 2007 Will

I turn now to the evidence given by the witnesses whose evidence was read by the NSW T & G. (I have omitted a reference to the evidence of Ms Russell and Ms S McMillan, each of whom gave evidence by affidavit, and each of whom was cross-examined, as to the nature and value of the deceased's estate. I have earlier referred to the relevant evidence of each as part of the uncontroverted matters.)
It is necessary to consider, in some detail, the evidence about the making of the 2007 Will, and the circumstances in which it was signed.
Mr Kennedy, in an affidavit sworn 28 March 2013, stated: "4. I have been employed by the Plaintiff for 14 years and have been interviewing clients and taking instructions in relation to Wills for 12 years. 5. When interviewing a client my standard practice is to enquire of the client:- (a) their identification; (b) their personal details such as address and contact information; (c) their assets and liabilities; (d) who they propose or should consider as beneficiaries; (e) those who might be potential claimants with respect to the estate in which regard I explain to the client the implications of the Family Provision Act 1982 and the Succession Act 2006; 6. As part of my standard procedure I seek to ensure that to me the client has the testamentary capacity to make a Will. In this regard I enquire of the client as to whether the client understands the nature of the Will, details of their assets and those who should benefit under the Will. When the Will is typed I have the client read through the Will and approve same before execution. 7. On 8 May, 2007 I saw the late Stanislaw Budniak (hereinafter referred to as Mr Budniak). I took instructions from Mr Budniak in relation to his Will subsequently executed on 3 October, 2007. At the time I took instructions from Mr Budniak I completed the Public Trustee NSW Will Information Form… I followed my standard practices referred to above during the interview I had with Mr Budniak at the time he provided instructions for his Will. 8. I asked Mr Budniak to provide me with details as to his address, date of birth and his assets. He advised me his full residential address which I recorded on the Wills instruction sheet. He informed me his date of birth was 21 February, 1922. I recorded his date of birth on the Wills instructions sheet. I asked Mr Budniak to provide me with details as to his assets. Again I recorded the information provided to me by Mr Budniak in this regard. 9. During the course of our interview I informed Mr Budniak the Public Trustee would be his Executor and Trustee. I said to him words to the effect:- 'To whom do you wish to leave your estate?' Mr Budniak replied with words to the effect:- 'I want to leave my estate to my son Thomas and his son. Thomas is there for me when I need him and I want him to take my estate.' Mr Budniak advised me he had a son Thomas Budniak and that Thomas had one son Benjamin Budniak. He was unable to provide me with their address at the time but said that he would contact me when he had those details. 10. I spoke to Mr Budniak about potential claimants under his Will. I explained to him the rights that were available under the Family Provision Act 1982. Whilst I cannot recall any precise conversation as to whether Mr Budniak had other children I certainly completed page 4 of the Wills instruction sheet at the time of the interview. 11. To me Mr Budniak was in no doubt as to his source of income. He advised me that he received the pension from Centrelink but was unable to provide me with his pension number. For that reason I completed the statement as to sources of income on page 1 of the Wills instructions sheet as I did at the time. 12. Mr Budniak did not exhibit any outward signs of any failure to understand the reason for his visit or the instructions given. I had no hesitation in completing that part of page 4 of the Wills instructions sheet as addresses testamentary capacity. 13. Mr Budniak did not sign his Will on 8 May, 2007. He informed me he would again attend the office to sign his Will. I received a call from him the next day. He confirmed he would attend the office to sign his Will and he advised me that he did not want me to post the Will out to him. I endorsed the front of the Wills instructions sheet to that effect on 9 May, 2007. During the course of our conversation on 9 May, 2007 Mr Budniak also stated to me that he would possibly appoint NSW Trustee & Guardian [as] his attorney and would discuss that particular aspect with me at our next appointment."
The Will Information Form, a copy of which is annexed to Mr Kennedy's affidavit, is a printed pro-forma document, available in July 2006, consisting of 5 pages, which includes the following bolded headings. (I shall also include the main matters of information to be completed under the bolded headings): (a) Will Client - the name, address, date of birth, occupation, source of referral, "Public Trustee's Role as Executor of the Will and estate explained and understood", and "Public Trustee's fees explained". (b) Assets - bank accounts, real estate (location of deeds, details of mortgage (if any); additional realty; shares/unit trusts; superannuation fund with current and past employers; debentures, life policies, motor vehicles, boats, caravans, trailers; jewellery, furniture, artworks; interests in business, farms, enterprises - accountant for business; any assets held as trustee; sources of income; accountant or tax agent; solicitor; private health fund; "jointures"; "Can Testator estimate the total value of their assets. Approximate total value"; (c) Funeral details; (d) Beneficiaries; (e) Guardian Details (If Guardians appointed for Minors); (f) Will Instructions - Can testator read and understand Will; (g) Family Provision Act 1982 - The persons who can make a claim if not adequately provided for under the Will are (identifies each category of eligible person); (h) Testamentary Capacity - Understand the nature of the Will; Know assets/value of estate; Understand FPA; Other comments; (i) General Comments - Overseas assets; person/s present at interview; (j) Contact permission; (k) Attorney Services - Have the above services been discussed with the client? Has the client been given a brochure on the services?
The Will Information Form contained a default provision for the Public Trustee to be appointed as either executor and trustee or substitute executor and trustee. Mr Kennedy ticked the box for the Public Trustee to be appointed as executor and trustee. Then there is a statement cancelling "earlier Wills, Codicils and other Testamentary dispositions".
Then the following appears in handwriting. "Equally b/w son Thomas + G/son Ben. Ben till 21 years No further substitute at this stage. Fully Explained".
Under the heading "Will Instruction" and what follows as set out above, is a space to enable the testator to "confirm the instructions set out on the previous pages do express my testamentary intentions as at this date and I WISH THIS DOCUMENT TO CONSTITUTE MY WILL until some further document, if any, replaces it". However, the deceased's signature does not appear in the space provided.
Mr Kennedy included the letters "TBA" under the heading "Address" of each of the beneficiaries. (The address of each of the beneficiaries does not, in fact, appear in the 2007 Will. It is possible to infer, therefore, that no further instructions, in respect thereof, were provided to him by the deceased.)
Under the heading "Testamentary Capacity", Mr Kennedy had written "Yes" in answer to the questions whether the client understands the nature of the Will, knows the assets/value of the Estate, and understands FPA (if applicable).
Under the heading "General Comments… person/s present at interview", Mr Kennedy did not note that a nurse, or an interpreter, were also present at the interview.
On the front of the Will Information Form there was a note in Mr Kennedy's handwriting: "Mr Budniak will attend office to sign in due course & possibly discuss POA. Do not post Will at this time."
The Will Information Form, completed by Mr Kennedy, was dated 8 May 2007, the time of the meeting with the deceased was identified as 10:00 a.m., and it was signed. The preparation Branch was stated to be Burwood.
Mr Kennedy swore another affidavit on 20 November 2013, in which he amplified the evidence given in his earlier affidavit: "… 8. I spoke with Mr. Budniak at his house at xx xxxx Street, Ashfield. Present was Mr. Budniak, a Nurse from Home Care, and an Interpretor [sic]. 9. During the course of my interview with Mr. Budniak, I said to him:- 'Could you please provide me with details as to your address, date of birth, and assets?' MR. BUDNIAK: 'My residential address is xx xxxx Street, Ashfield and my date of birth is the 21st February, 1922. I have bank accounts with the St. George Bank and the Commonwealth Bank. I own my home at xx xxxx Street, Ashfield. Such property probably includes the next door property known as xx xxxx Street. I have shares in One Steel, BHP, and BlueScope.' I said: 'Do you have entitlement to Superannuation with any past employer?' MR. BUDNIAK: 'I worked for the University of NSW for some twenty six years or so. I had entitlement to State Superannuation. It may be I collected my entitlement or had it paid as a pension.' I said: 'Do you use the services of an Accountant for your tax returns?' MR. BUDNIAK: 'Yes, my Accountant is at Fox Financial Services.' I recorded the information provided to me at the time by Mr. Budniak on the NSW Will Information Form which is Annexure 'A'… a. Where I place a '?' next to an answer, it is an indication for the administrator of the Will to investigate whether such property does, or does not, belong to the testator at the date of death; b. I made a note on the front of 'Annexure A' to the effect that Mr. Budniak would come back to sign his Will. I also noted on page 5, that there would be a further appointment; and c. I placed a circle around the figue $200 - 750k. The reason for this was, it was a guestimate that I made for office use only. 10. During the course of my inteview with Mr. Budniak, I informed him the Public Trustee would be his executor and Trustee, and said, 'To whom do you wish to leave your estate?', Mr. Budniak replied, 'I want to leave my estate to my son, Thomas, and his son. Thomas is there for me when I need him and I want him to take my estate'. Mr. Budniak was unable to provide me with an address for his son, Thomas, at the time but he said, 'I'll contact you when I have my son's address'. … 12. To me, Mr. Budniak was in no doubt as to his source of income. He advised me that he received the pension from Centrelink but was unable to provide me with his pension number, he said, 'I receive a pension from Centrelink and the DVA'. As Mr. Budniak was unable to provide me with his pension number at the time of the interview, I completed the satement as to sources of income on page 1 of Annexure 'A' as I did at the time. … 14. Mr. Budniak did not sign his Will on the 8th May, 2007. He said to me at the time of our interview, 'I'll come back and sign my Will'. 15. On the 9th May, 2007 I received a call from Mr. Budniak during which he said, 'I'll come back to your office to sign my Will and I don't want you to post it out to me'. I endorsed the front of the Wills Instruction Sheet to that effect on the 9th May, 2007. 16. During the course of our conversation on the 9th May, 2007 Mr. Budniak also said to me, 'I'm considering possibly appointing the NSW Trustee & Guardian as my Attorney. I'll discuss this further with you at our next meeting'…"
Mr Kennedy was cross-examined. I summarise his evidence given in cross-examination: (a) In 2007, he was the Manager of the NSW T & G's Burwood office. He transferred to the Wollongong office of the NSW T & G in 2010. (b) He had been employed by the NSW T & G (or the Public Trustee) since 1999. (c) He followed a standard form in taking instructions for a Will. (d) His only contact with the deceased was face to face on 8 May 2007 and then, by telephone, on 9 May 2007. (e) He had no further involvement with the deceased and only became aware of the dispute about the 2007 Will following the commencement of the Probate proceedings. (f) He had very little independent recollection of the events about which he gave evidence, relying, almost entirely upon the Will Instruction Form, which he had completed at the time he met with the deceased on 8 May 2007. (g) He had some independent recollection of attending the deceased's home. The deceased, a nurse (who, other evidence established, was Nurse McDonnell a witness to whom I shall refer) and an interpreter were also present. (He had not referred to either of these facts in his first affidavit because "I didn't see it [being] relevant at the time". He had been told something by the lawyers for the NSW T & G about the other persons being present and had included it is his second affidavit.) The interpreter had "assisted on further clarification of issues, but the main points I was able to get from Mr Budniak". He acknowledged that, on occasions, the deceased had difficulty expressing himself. (h) Mr Kennedy could not recall any discussions with the nurse about the deceased's state of health or any medical condition from which he might have suffered. (i) He could not recollect how long he had spent with the deceased. (j) There was nothing on the Will Instruction Form that the deceased told Mr Kennedy that he had any children, or grandchildren, other than Tomasz and Benjamin. Mr Kennedy did make an enquiry about persons who might be eligible to make a claim under the former Act. (k) There was nothing in the Will Instruction Form that suggested Mr Kennedy had made any enquiry about the deceased's history. (l) There was nothing in the Will Instruction Form that suggested Mr Kennedy made any enquiry about the deceased's state of health or his health history. (m) Mr Kennedy made no note confirming he had asked the deceased whether there were any prior Wills to revoke or, if so, what was contained in any such Will. He agreed that he had made no enquiry about the reasons for making a new Will. (n) Mr Kennedy made no enquiry about the deceased's relationship with any family member other than Tomasz and Benjamin. (o) Mr Kennedy accepted that the Will Instruction Form that he completed did not include all of the conversations that he had with the deceased on 8 May 2007, but only "the main points". (p) The deceased was asked about his real estate. He identified the Ashfield property. He also identified "possibly" the Wife's property, which he said had been vacant "approx. 5 years". (Although the deceased believed that he had an interest in that property, as evidenced by his caveat, by May 2007, he had been told, prior to his meeting with Mr Kennedy, that Tomasz was buying the property. The deceased had also been told that the caveat lodged by him had lapsed.) (q) When asked about his sources of income, the deceased did not identify his primary source of income as dividends and interest earned on shares and interest-bearing deposits. The Will Information Form stated "DVA/Centrelink?" as being income sources. He identified "Fox Financial Services" (with a P.O. Box address and telephone number" next to "Accountant/Tax Agent". (Other evidence reveals that it had last provided accounting services to the deceased in relation to his income tax returns for the year ending 30 June 2003. More recently, the deceased had used "Myssy Taxation Services" to prepare his income tax return for the year ending 30 June 2005.) (r) The deceased did not provide information about the value of his estate. Where there was a statement of value inserted in the Will Instruction Form, it had been inserted by Mr Kennedy "purely for office purposes". (The question "Can testator estimate the total value of their assets. Approximate total value is…" was left incomplete on the Will Information Form.) (s) Mr Kennedy left unmarked on the Will Information Form the box for the question "Can testator read and understand will" because he was not preparing the deceased's will on that day. He was not concerned about this issue as there was nothing for the deceased to read on that day. (t) Mr Kennedy discussed with the deceased the charges to be incurred, although he could not recollect precisely what he had said. He did discuss the various percentages that might be charged. He thought that he had discussed the charges that would be made for continuing to hold trust assets for Benjamin until he attained the age of 21 years. (u) Mr Kennedy was "satisfied at the time that [the deceased] gave me clear instructions and that's what I acted on". He did not otherwise identify those instructions (except in relation to the identity of the beneficiaries).
I next set out some questions from the Bench and Mr Kennedy's answers: "Q. You have set out in both your affidavits what your standard practice is. In circumstances where there is an interpreter present, do you have any recollection of how the interview actually went? How did you ascertain for example that he did not need an interpreter, or the parts of the conversation that did require an interpreter? A. I was satisfied that the questions that I asked in relation to his name, address, date of birth, assets and liabilities, beneficiaries, they came from Mr Budniak, and whilst he had broken - broken English, it was - I was able to clearly understand his answers and directions to me. Q. Did you say his directions to you? A. Yes, that I recorded in the wills instruction sheet. Q. Do you have any specific recollection of any part of the conversation where the interpreter was required to assist? A. No, I don't have specific Q. Could I take you to page 4 of the will instruction sheet, under the heading Family Provision Act. Do you see that? A. Yes. Q. Could you tell me if you have a recollection of what you did in relation to that part of the will instruction sheet? A. Not a specific recollection, other than my generic discussions with the will making with the client. Q. Could you tell me what that was, what your generic … A. Yeah, well I ask them under the Family Provisions [sic] Act do they believe that there may be anybody that should be considered should - in the event that their will is contested. Then, as I stated, I go through the people that may be eligible or that are eligible under the Act, and is there anybody that has been omitted from the will that I should record. Q. Does that line of questioning require you to ask him whether, for example, he has a spouse? A. Yes, it does. Q. And down each of the categories? A. That's correct. Q. Where you actually ask whether he has anyone who falls into the categories identified in paragraphs A to H? A. Yes. Q. Do I get from that answer that you would have asked him whether he had any natural or adopted children? A. Yes, absolutely. Q. And do I get from the tick in "No" that he said that he didn't have any? A. That's correct. Q. When you just answered that, you mean other than Tom, because he specifically identified Tom. A. Yeah. Q. And again, do I take it that you asked him about grandchildren, and the only grandchild he identified was Benjamin? A. That's correct."
I am satisfied that Mr Kennedy did his best to recollect the events that occurred on 8 May 2007. It is hardly surprising that 8 years later, he could not remember, precisely, the detail of the whole of his conversation with the deceased. I have no reason to doubt that, at his meeting with the deceased, he followed what was his standard practice, in 2007, in taking instructions for a Will. It is clear that whatever the instructions given by the deceased were, they were given directly by him to Mr Kennedy, there being nobody there to prompt the deceased.
In some respects, as will be read, some of his evidence was corroborated by Mrs L J McDonnell, who is the registered nurse who attended the deceased's home on 8 May 2007 with Mr Kennedy and the interpreter.
There was no evidence from the interpreter who attended at the deceased's home on 8 May 2007. No comment was made by senior counsel for Robert in this regard.
There was no specific evidence of when Mr Kennedy prepared the 2007 Will.
Nothing appears to have been done to progress the making of the 2007 Will between early May 2007 and early October 2007 although it appears to have been located in the NSW T & G's Will file.
I shall return to other evidence going to the events in May 2007 when the deceased is said to have given instructions for that Will.
Mr Mohammed, in an affidavit sworn 17 October 2013, wrote: "… 4. I have been employed by the Plaintiff for ten years and have been interviewing clients, and taking instructions, in relation to Wills for between seven and eight years. 5. On the 3rd October, 2007 I saw the late Stanislaw Budniak ('Mr. Budniak') ('the deceased'), at the Burwood Branch of the Plaintiff. I was told by Mr. Budniak, 'I wish to sign my Will'. The Will had been previously prepared for him. I went, and got Mr. Budniak's Will and took him to an interview room. 6. As my standard practice is to ask clients for some form of identification, I would have asked Mr. Budniak for identification. I cannot recall what identification Mr. Budniak provided to me but I was certainly satisfied at the time as to his identity. 7. Whilst Mr. Budniak was seated in an interview room, I gave him a copy of the typed Will and left him alone in the interview room so that he could read his Will without interference of any nature. After a short time while, I returned to the interview room and said to Mr. Budniak:- 'Have you finished reading your Will?' MR. BUDNIAK: 'Yes.' I SAID: 'Are you satisfied with the Will?' MR. BUDNIAK: 'Yes, I'm satisfied with the Will.' I SAID: 'As two witnesses are needed to [witness] your signature to the Will, I'll get a colleague to come in and witness your signature.' A member of staff, Teresa DiDonato, agreed to be a witness. Ms. DiDonato, and I, thereafter joined Mr. Budniak in the interview room. 8. Mr. Budniak freely, and voluntarily, signed his Will dated the 3rd October, 2007 in the presence of myself, and Teresa DiDonato, both being present at the same time. I cannot recall Mr. Budniak asking any questions whatsoever with respect to the content of his Will..."
(Mr Mohammed had sworn an earlier affidavit that was read. However, that affidavit was in the same short form of attesting witness affidavit by Ms Di Donato, to which I shall refer.)
Mr Mohammed was cross-examined. I summarise his evidence given in cross-examination: (a) He joined the Public Trustee as a trainee in mid-2003. Until 2010, he held the position of trust clerk. (b) Since November 2010, he has occupied the position of a client property officer at the NSW T & G. His clients have disabilities so he co-ordinates repairs, maintenance and renovations of their properties using their funds. (c) Until 3 October 2007, he had no prior involvement with the deceased. He met him when the deceased came into the NSW T & G's office, at Burwood, and asked to sign what was the 2007 Will. The deceased had not made an appointment to do so. (d) After verifying the deceased's identity, Mr Mohammed said his responsibility was to obtain the execution of the Will that someone else had prepared for the deceased. In doing so, he did not look at any documents in the NSW T & G's Will file, apart from the Will that had been prepared and he did not concern himself with the Will Instruction Form. (e) Mr Mohammed did not discuss with the deceased, any instructions given to make the Will or any other matters concerning the deceased's testamentary affairs. He did not read the 2007 Will out aloud to, or summarise its contents for, the deceased. He gave the deceased the original unexecuted 2007 Will to read and immediately left the room. (f) He could not recollect how long he left the deceased alone in the room to read the unexecuted 2007 Will. Of course, he did not know whether the deceased had read the draft 2007 Will whilst he was alone, but Mr Mohammed confirmed that the deceased told him that he had read and was satisfied with it. (g) Mr Mohammed was not asked how long, in total, he had spent with the deceased, but, bearing in mind his evidence as to the events that occurred, it is unlikely to have been very long. (h) The 2007 Will was then signed and the deceased's signature thereon was witnessed. Mr Mohammed does not recall the deceased asking any questions about the contents of the 2007 Will.
In answer to questions from the Bench, Mr Mohammed confirmed that part of his standard practice in 2007 was to provide a client with a copy of the Will that had been executed. He confirmed that he had followed that standard practice with the deceased.
Following these questions, counsel for the NSW T & G asked Mr Mohammed about certain documents, which were subsequently tendered as Ex. F. Included as part of this tender, was a copy of the 2007 Will, which Mr Mohammed identified as a copy of the will but could not say that it was the copy that he had given to the deceased.
Because the other documents which became part of Ex. F should have been identified as evidence in chief, and because they had not previously been shown to counsel for the Defendants, I permitted further cross-examination. Mr Mohammed identified the other documents as "a standard pack", but was unable to confirm that he had provided those other documents to the deceased at the time of the execution of the 2007 Will. (I do not think anything turns on this as the evidence is that all of the documents that comprise Ex. F were found in the Ashfield property following the death of the deceased.)
I am satisfied that Mr Mohammed did his best to recollect the events that occurred on 3 October 2007. It is hardly surprising that the detail of his conversation with the deceased was not remembered precisely over 7 years after the conversations took place. I have no reason to doubt that at the time the 2007 Will was executed, he followed what was his standard practice in 2007, in having a Will executed.
Ms Di Donato, the other attesting witness, gave the following evidence in an affidavit sworn on 16 May 2012: "2. On 03 October 2007 the original Will… was signed as now appears on the said Will by Stanislaw Budniak the deceased, as the said Stanislaw Budniak's Will in the presence of me and of Nicholas Mohammed present at the same time and then at the request of the deceased attested and subscribed by us in the deceased's presence and in the presence of each other. 3. The signatures 'T Di Donato' and 'N Mohammed' subscribed as witnesses to the Will are respectively those of me and Nicholas Mohammed."
It is clear from the evidence that there was no prior arrangement for either Mr Mohammed or Ms di Donato to be the attesting witnesses.
The Defendants did not require Ms Di Donato to attend for cross-examination. There is no reason to disbelieve her evidence as to the circumstances of the execution by the deceased of the 2007 Will.
There was no other evidence going to the circumstances surrounding the execution, by the deceased, of the 2007 Will.

Subsequent Events Involving the Deceased and the NSW T & G

Mr Mohammed saw the deceased, subsequently, at the office of the NSW T & G, when the deceased came in with a question about his taxation affairs. On this occasion, Mr Mohammed provided him with a list of tax agents who might be contacted by telephone, which list Mr Mohammed retrieved from the Yellow Pages. There was no evidence on this occasion that anything was said about the 2007 Will.
Ms Ulrike Scarlett, a Senior Trust officer in the employ of the NSW T & G, in an affidavit sworn 25 September 2013 (as amended in one respect, being the date in paragraph 6) wrote: "… 4. I have been employed by the Plaintiff since 1988 and have been interviewing clients, and taking instructions, in relation to Wills since 1990. Part of my training is to assess the capacity of clients when drawing up documents for them. 5. In August 2009 (as corrected), I was working at the Plaintiff's office at O'Connell Street, Sydney as the Will's Officer. 6. On the 31st August, 2009 (as amended) I saw the late Stanislaw Budniak ('Mr. Budniak'), at the O'Connell Street office of the Plaintiff. 7. I discussed Mr. Budniak's Will with him, he said to me:- 'I don't want to change my Will, I'm leaving my estate to my son and grandson.' 'I have five children.' 'My estate is too difficult to split.' 'I have a property I live in and another investment property.' 'I have Bank accounts with the St. George Bank and the Commonwealth Bank.' 8. Mr. Budniak's main concern was that he wanted to make a Power of Attorney, he said, 'I want a Power of Attorney with the Public Trustee to look after my money and to protect myself'. 9. As far as I understood Mr. Budniak, he wanted a Power of Attorney with the Plaintiff because, 'I gave my son money and he spends it. I know the Public Trustee will look after my money', he also said, 'I have problems with my memory and I've been ill.' 10. Although Mr. Budniak understood what a Power of Attorney was, I was not confident that he fully understood the effect, charges, and fees, that the Plaintiff would charge for such service, so, as a precaution, I went and spoke with Ms. Jill Day, a Senior Legal Officer, about Mr. Budniak. 11. After speaking with Ms. Jill Day, I spoke to Mr. Budniak and said:- 'I've spoken with a Senior Legal Officer and because of what you've told me, what we would need to make a Power of Attorney is medical evidence about your memory because of the possible conflict with your son, so you should go and see your doctor. Once we have a letter from your doctor we'll make a Power of Attorney for you.' MR. BUDNIAK: Expressed reluctance to do so. I SAID: 'I have no choice due to my doubts about your understanding of the charges and fees we make for a Power of Attorney. I know you understand what a Power of Attorney is, but I'm concerned about the possible conflict with your son. Medical evidence will also protect you to support what you want to do.' 12. Mr. Budniak left and I wrote a file note dated the 31st August, 2009…"
The file note, a copy of which was annexed to Ms Scarlett's affidavit, is in the following terms: "I saw Mr Budniak today who is an elderly gentleman. He was very difficult to understand and English is not his first language. He provided me his Australian passport which expired in May, 2009. I discussed his Will and he told me he did not want to change it as he did not know what else to do. He is leaving his entire estate to a son and grandson. He advised me that he had five children in total. He said it would be to [sic] difficult to split it. (He talked about his family but I found it very difficult to understand). He told me that his assets included the property he lived in and another investment property in Ashfield. He also had bank accounts [with] St George and the Commonwealth Bank. What was of concern he said that he gives his son money who spends it inappropriately. He wanted to make POA to protect himself. However, I did have doubt of his ability to understand fully what the effect of a POA was. He knew that PT would look after his money but I was not confident he would understand the charges and fees etc. The client told me he had problems with his memory and had been ill. I spoke to Jill Day SLO who suggested I request medical evidence given his memory loss and possible conflict with his son. I requested Mr Budniak go to his Doctor. I said once he had a letter I could draw up the POA for him. Mr Budniak was reluctant to see a Doctor but I felt that I had no other choice but to ask due to my doubts and possible conflict with his son. I explained to Mr Budniak it will also protect him to get medical evidence to support what he wants to do."
It was not suggested that the file note was not contemporaneous or that it did not fully, or accurately, record the events of August 2009.
I summarise Ms Scarlett's evidence given in cross-examination: (a) Her only meeting with the deceased was on 31 August 2009. (b) When the deceased came into the office of the NSW T & G, he appeared quite distressed and was quite upset about his personal situation. (c) Although he may not have used the term "Power of Attorney", Ms Scarlett understood the deceased wanted someone to protect his money because he was quite concerned about funds being used inappropriately by one of his sons (whom he did not identify). (d) The deceased was able to tell Ms Scarlett, quite clearly, about the provisions of the Will regarding the distribution of his estate that he had executed. He also told her what his assets were. He seemed to know what he had. He knew where he was living and he knew he had an investment property and he seemed to know, generally, the value of his estate. He was able to identify bank accounts with the Commonwealth Bank and the St George Bank. (e) Ms Scarlett thought that she had spent 15 to 20 minutes with the deceased.
It is noteworthy that over two years after the instructions for the 2007 Will were given by the deceased to Mr Kennedy, and 22 months after the 2007 Will was executed, the deceased, unaided, and apparently uninfluenced by any person, was able to return to the office of the NSW T & G, and inform Ms Scarlett of its contents so far as the distribution of his estate on his death. Whether he was able to do so because he remembered the contents of the 2007 Will, or whether he had recently read the copy in his possession, as suggested by senior counsel in closing submissions, is beside the point. In either case, he appears to have orally ratified the 2007 Will. I accept, however, that such an oral ratification would not turn the 2007 Will, if invalid for the deceased's lack of capacity, into a valid Will.

Events After the Death of the Deceased

Ms M K Stirton, another employee of the NSW T & G, swore an affidavit on 26 September 2013 in which she deposed to a conversation with Tomasz and Eliza on 1 June 2011. Her file note, which was dated 24 June 2011, was in the following terms: "I took an estate report regarding the above deceased on 1/6/11. The deceased's son, Tom and daughter, Eliza were present at the interview. We discussed the estate and Tom had said that he did not know that his father had left the Will with only he and his son as beneficiaries. I said that if the family were considering contesting the Will, it would be more ideal if they could come to some arrangement by way of a deed rather than take the matter to court. They said that they'd discuss it and let me know. With regard to the property and contents - property is jammed full of junk -deceased was a hoarder and some rooms are inaccessible. Tom and Eliza agreed that the family would deal with the contents themselves and I explained that Tom would need to sign an Ownership Agreement. As his son is only 9 -the sale of any estate assets will need to be considered under PPP. This was explained to Tom. On the 2/6/11 I received a call from Eliza who said that the family would definitely take FPA action and would be seeing a solicitor."
Ms Stirton was cross-examined and although it is clear that she made a mistake about one matter (which is not of any significance), it is not suggested that the court should not accept her evidence.
I should note that Tomasz states that he did not have any conversation with the deceased about the making of the 2007 Will. I shall return to other evidence given by Tomasz about conversations with the deceased about matters that may have been relevant to the contents of the 2007 Will.
Nathalie also gave evidence that she was telephoned by Nurse McDonnell, who told her of the meeting arranged at the deceased's home with the Public Trustee, but was not told of the reasons why the meeting had been arranged. In any event, neither Tomasz nor Nathalie attended.

The Wife's Property

Genowefa died in December 1998. She left a Will, Probate in common form of which this court granted to Robert and Eliza in April 1999. By that Will, Genowefa left the whole of her estate to be divided equally between her five children.
The major asset in Genowefa's estate was the real property situated immediately next door to the Ashfield property, which was purchased, in Genowefa's sole name ("the Wife's property"), in about 1972.
In November 1980, the deceased registered a caveat on the title of the Wife's property. In that caveat (a copy of which is Ex. 18), which appears to have been prepared by solicitors, he claimed an estate or interest: "as equitable owner of an undivided one half share in the fee simple as tenant in common with GWENOWEFA BUDNIAK such equitable part interest arising out of the following facts and circumstances:- 1. It was agreed by and between GWENOWEFA BUDNIAK and STANISLAWS BUDNIAK that the property would be purchased by them in the name of GWENOWEFA BUDNIAK but that they would be co-owners thereof; 2. STANISLAWS BUDNIAK has paid approximately one half the purchase price of the said land and improvements thereon. forbids the recording in the Register of any dealing."
The deceased told Robert that the Wife's property had been put into Genowefa's name "for taxation purposes". This was confirmed by Robert (who denied the fact that it had been although did not deny he had been told by the deceased that it had been).
Eliza, in an email dated 14 April 2003, addressed to her siblings also confirmed the assertion. (Robert asserted in cross-examination that Eliza was incorrect in her understanding of the reasons why the Wife's property had been registered in Genowefa's name.)
In 1990, with the consent of Genowefa, Tomasz lodged an application with the Ashfield Council to create a right of carriageway over the Wife's property. The Council gave approval by Consent dated 7 September 1990. (The deceased, being a caveator, stated in writing to the Land Titles Office, that whilst he did not wish to withdraw his caveat, he gave consent to a Transfer granting an Easement.)
Shortly before her death, Genowefa applied to have the joint tenancy held with the deceased of the Wife's property severed, but severance did not occur prior to her death. (The documents were not in evidence.)
In late September 2006, Robert and Eliza, as executors of Genowefa's Will to whom Probate had been granted, lodged a Transmission Application to be registered as the proprietors of the deceased registered proprietor (Genowefa). (The Transmission Application was signed by each of Robert and Eliza and their signatures were witnessed by James Ilett.)
On about 4 September 2006, Robert, alone, lodged an Application for the Preparation of Lapsing Notice. On a date not disclosed on the document, the Department of Lands issued a Notice to Caveator of Proposed Lapsing of Caveat addressed to the deceased at the firm of solicitors (identified in the Caveat that had been lodged).
On about 3 October 2006, Robert served the Notice to Caveator of Proposed Lapsing of Caveat on the deceased in respect of his caveat on the title to the Wife's property. (There was a dispute about the documents that were served, but I am satisfied, having read all of the evidence on this topic, that Robert only served that document on the deceased. If, when, and how, the deceased obtained other documents that Tomasz says he found, at a later time, in the Ashfield property, is not clear.)
The deceased did not take any steps to extend the operation of the caveat or seek to establish an interest in the Wife's property. No court order extending the operation of the caveat having been received by 24 October 2006, the caveat lapsed and the Wife's property was then registered in the names of Robert and Eliza as the executors of Genowefa's Will.
The events surrounding the issue of the lapsing notice and the lapsing of the caveat have proved to be quite significant in this case. I shall return to the events that occurred following the death of Genowefa, between the deceased and his children, particularly Robert and Eliza.
Subsequently, in June 2007, the Wife's property was sold to Tomasz for $580,000. All of the siblings agreed to its sale to him. From Tomasz's share of what were the net proceeds of sale, an agreed amount was deducted, being calculated as the rent, or occupation fee, which all of the siblings had agreed ought to be paid by him for his occupation of the Wife's property for a number of years and which he did not pay. From the proceeds of sale, Eliza, Joanna and Lech each received about $120,000; Robert received about $125,000 (to take into account outgoings he had paid on the Wife's property); and Tomasz received about $58,000 (after deduction of the rent or occupation fee that he had agreed to pay).

Events of 2005 and 2006 Relating to the Wife's Property

Because it was said to play a pivotal role in the deceased's decision to make the 2007 Will, it is necessary to state my conclusions about the events that occurred following the death of Genowefa. Some of the evidence on the topic is conflicting. I have considered the evidence of the various children, particularly of Robert, who appears to have been the central figure in dealing with the deceased in relation to the Wife's property and the events, as I find them to be, on this topic are set out hereunder.
In January 1999, Robert sought advice from Philip Saul, solicitor, about the Wife's property. The nature of the advice that he sought, and the advice he was given, was not disclosed in the evidence.
In February 1999, Robert had a conversation with the deceased in the following terms: "… 40. Dad: I got this notice after your mother died. It says you are all trying to change the title on this house and Service Avenue [the Investment Property]. Myself: It was not any of us who did that. Mum filled out the papers before she died. You can check that by seeing who made the application. It takes some time to process the documents. It was also Christmas time, when things slow down. Dad: There was no need for her to do this. You know that I will leave everything to the five of you when I die - you have already seen my will. Myself: Yes, Tata. But mum left Eliza and me to look after her estate when she passed away, and we need to do that properly. But I know what you say is correct regarding your will and what I will do is talk to the others about the situation and see what the best way to deal with it is."
Subsequently, there was a meeting of the siblings "to sort out what to do with Mum's estate". There was a reference made, at this meeting, to the deceased being "really unhappy" about events involving the Wife's property. The siblings agreed that it was best "to just leave him alone. There is no point unduly pursuing legal action against him - he will just get upset." They all agreed that the issue should not be pressed.
Robert said that the basis of this agreement was the deceased's statement to Robert, communicated to his siblings, that "I will leave everything to the five of you when I die".
The siblings also agreed that Tomasz and Joanna could continue living in the Wife's property upon the basis that they paid the outgoings but no rent. They paid the outgoings together during the period February 1999 to June 1999 (when Joanna and Andrew moved out of the Wife's property) and then Tomasz paid most of the outgoings after June 1999.
In August 2001, Joanna sent an email in the following terms to each of her siblings: "I went and saw dad the other day. He has asked me to ask you all to meet with him, as he is getting old and wants to start finalising things ie. assets, paperwork. He said he doesn't want anything from us, and doesn't want to ask anyone for him to live with them or anything cos he's happy where he is, but he needs help in finalising his paperwork and getting it into order and stuff. I believe he is actually getting old and senile - he forgets what he is saying in the middle of a sentence and stumbles… over some words. He said he is forgetting about where some of his assets are and can't remember what stuff he has where, and needs help in compiling paperwork. He is really forgetful - he didn't remember who I was the other day for a little while, and had to re-introduce myself, and he was talking to me without any teeth in his mouth because he put his dentures somewhere the day before and had been looking all day for them with no luck. I told him that I would ask you all this, but no promises. I also told him that we are not interested in his stories, past history or talking about mum. When he starts on these things, I just walk out now, and he's learnt. I take him with a grain of salt and have learnt not to let him bug me as he mostly distorts the facts. I will go with whoever wants to. He wants to start getting rid of stuff. Liza said this is probably a good idea as well as getting mums things in order was hard (and she was organised) so getting his stuff organised will be a nightmare (but must be done) and it will be easier done whilst he is alive. also if he is forgetful then it will only get worse. Please let me know if you want to come with us, and if you would prefer it at his house or at my house. My apologies for the email, but it is easier than phoning and telling the same story 4 times."
In January or February 2003, the siblings agreed that Tomasz should pay rent of $320 per week commencing in March 2003. (There is a dispute about whether he paid any part of the rent but, as stated earlier, the issue of outstanding rent was resolved when the Wife's property was sold and an agreed amount for outstanding rent was deducted from Tomasz's share of the proceeds of sale.)
Robert had a conversation with the deceased, at which Joanna was present, in October 2005 in the following terms: "Myself Tata, we came to talk with you about Mum's house. Dad Sorry? What did you say? I can't hear you. Myself Can you please turn up your hearing aid? [I motioned for my father to turn up his hearing aid. He did so and a high pitched feedback emitted.] Dad I hate that sound. Anyway, I should be able to hear you now. Myself As I was saying, we came to talk with you about Mum's house. Tomasz has moved out and we need to do something with the place so it does not get run down. Dad I don't want to do anything with it. Myself The place needs some maintenance. Dad It's my property and I don't see the need if there is no-one there. Myself It is not your property. The title for Mum's house has always been in Mum's name but you have put a caveat over it. It means Eliza and I as executors of Mum's estate cannot deal with the property until the caveat is lifted. Dad The property is mine and it has always been mine. In any case, once your mother died, the property belongs to me automatically. But, it makes no difference. You know that when I die you will get all my possessions. You have seen my will. Myself Yes, we know that. But we do need to deal with this. The rates and maintenance for Mum's House needs to be paid. Will you do that? [Dad gave no answer]. Myself What do you want to do? Dad Don't rush me. Let me think about it. Myself Tata, I first raised this with you years ago. But, okay, take some time."
Although it was not disclosed by Robert, or any of the other Defendants, in his, or her, affidavits, Robert sent an email to each of his siblings in November 2005, in the following terms, which email provides a slightly different version of the events: "From: Budniak, Robert Z […] Sent: Tuesday, 8 November 2005 11:55 … Subject: xxxx St Following our meeting I met Dad with Joasia to discuss xx xxxx St. His first statement set the scene. 'If any one tries to change the title on xx xxxx St without my knowledge, then I will leave you nothing and I will fight, as a matter of principal to the end'. Great way to start a negotiation. I then pointed out that the title deeds were in the name of mum and that whilst his opinion may be that he owns xx xxxx St, the title deeds say otherwise. I said that we want to resolve the issue of ownership because it had the potential to cause all of us unwanted results, particularly in regards to taxes and duties that all (children and father) may be liable for. Whilst the title is not agreed upon, the liability for these is unclear. He said that he would 'think about it' and provide us with his answer. When I asked for a timeframe, he did some seem [sic] to consider that it was an urgent issue. I am still waiting for a reply. … I am getting a lot of pressure to include the spouses. The fact that this is unresolved affects all our families. My reasons for not getting the spouses involved are: With 5 siblings, we don't seem to agree; with 10 people there are twice as many opinions. This is a family issue. We are left with the legacy of mum and dads relationship. Father wants to be the control freak. He believes that any tenuous remaining bonds he has with us can be maintained by controlling the disbursement of his estate when he dies. … The simple fact is that we can make the caveat go away by satisfying the caveat. That is, we give him half of xx xxx St. However if we initiate that then we run into the problem as his statement (see the top of the email). Walking away from this situation is not an option because of the potential for someone to be hit with a tax bill later on. We'll see what he comes back with. Tom, why don't you prompt him to get back to me with an answer."
(A number of the Defendants, when asked about the omission of any reference to the email from his, or her, affidavit, each said that he, or she, did not remember it. That an important conversation with the deceased reported to each of them in the email, about the devolution of his estate, a matter which had been adverted to in other parts of each of their affidavits, was simply forgotten by each of them is difficult to accept.)
Following the sending of the email, there were a number of discussions between the siblings, and between Robert and the deceased.
I should note that in one conversation, said to have taken place in June 2006, the deceased told Robert that he had "spoken to lots of accountants and lawyers and they are no good. They keep telling me how I owe money to the Tax Office but no one seems to be able to explain anything to me."
Robert's conversation with the deceased in June 2006 is said to have included: "… Myself 'All the people you have spoken to can't be wrong. You should try and finalise these things. Dad 'I will look after everything.' Myself 'It's also been a few months now since I came and saw you about the Caveat you have on Mum's House and the rates and maintenance for it. Have you worked out what you want to do about that?' Dad 'Leave it with me. I am still thinking about it.'"
In August 2006, Robert had another conversation with the deceased in the following terms: "Myself 'Tata, where have you been? Are you all right?' Dad 'I have been right here.' Myself 'I have been trying to contact you. No one answers when I call or answers the door when I have visited.' Dad 'I don't know. I have been here. I just put on my hearing aid when you turned up. The noise it makes really annoys me.' Myself 'You remember we asked you to remove the caveat on Mum's house? Will you do that?' Dad 'No. It suits me fine the way things are.' Myself 'Of course - it's Eliza and me that are paying all the bills. We need to finalise Mums' estate and deal with the property.' Dad 'All the money and property is mine and I will deal with it. You will all get a share of it when I am gone.' Myself 'It's Mum's House we are talking about.' Dad 'Your mother did the wrong thing and she was only ever after my money. But she died, so everything she had became mine as her husband.' Myself 'Tata, you and Mum were divorced - you were not her husband when she passed away. But, anyway, we need to resolve this.'"
Robert served the lapsing notice personally upon the deceased in October 2006. He states that he had the following conversation with the deceased at the time: "Myself 'Tata, I have come to give you this document.' [I then handed my father a lapsing notice for his caveat. He did not even look at it]. Dad 'What are you doing here?' Myself 'I am here to resolve the situation with Mum's House.' Dad 'What situation?' Myself 'You have a caveat on Mum's House. It needs to be removed.' Dad 'The house is mine. She was a terrible woman and was only ever after my money. Well, she can't have it. She never came back to me after she left and the property is mine. There is no need to do anything.'"
In cross-examination, Robert gave evidence that he had decided to take the risk that he would receive nothing out of the deceased's estate based upon what the deceased had said to him in November 2005 and that he had reminded his siblings of the threat made by the deceased in his email to each of them. However, he drew the distinction that what he and his siblings had done, in relation to having the caveat lapse, was not being done without the knowledge of the deceased and that, therefore, the threat made by the deceased regarding the devolution of his estate did not apply.
In answers to questions from the Bench, Robert gave the following evidence at T217.19-T217.29 (as amended): "As I understood your evidence you said to him, when presenting him with the document at page 45… 'You should read it and act on it.' That's my note of what you said. A. That's what I said, yes. Q. Yes. You've agreed with Mr Hill that he could read it. A. Yes. Q. Presumably you said he should act on it because you believed that he would be able to act on it. A. I guess I had the belief at the time, yes."
In cross-examination, Robert was asked about the reasons which had prompted the change of plans in dealing with the deceased in relation to the Wife's property. He said that the outgoings on the property were not being paid (other than by him) and that he did not wish to keep doing so.
Joanna gave no evidence, in any affidavit, about the issue of the lapsing notice although she knew that there would be a lapsing notice served on the deceased. She also knew of the email sent by Robert in November 2005 and what the deceased had said to him about changing the title, although she said that she did not specifically remember it in October 2006. In cross-examination, she, too, sought to draw the distinction between changing the title without the deceased's knowledge and giving him notice, by the service of the lapsing notice, which could result in the change of title. She also said that she did not take the deceased's threat seriously suggesting that it might have been said in anger.
Tomasz, in his affidavit, stated that he was not aware of Robert's intention to serve the lapsing notice.

The Medical Evidence

It is next necessary to address the evidence about the deceased's state of health and state of mind at or about the time of giving instructions for, and then executing, the 2007 Will. There was both documentary, and oral, evidence relied upon by the parties.
Unlike some other probate cases in which experts called provide an opinion on the deceased's capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence was from doctors, and others, who had contact with the deceased and there are contemporaneous records of interviews, examinations and findings. Each had the considerable advantage of having personally carried out these interviews, examinations and clinical assessments of the deceased.
The medical evidence is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand: Nicholson v Knaggs [2009] VSC 64, per Vickery J, at [39].
It is clear, however, that none of the professionals, was required to undertake any contemporaneous assessment of the deceased to satisfy herself, or himself, of the deceased's testamentary capacity. This is not of great significance since "[t]he Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the [testator] at the time of [his] making the relevant wills and codicils. The manner in which [he] gave [his] instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance": Nicholson v Knaggs, at [41].
Yet, each gave some evidence on whether the deceased had a medical condition (physical or mental) which was likely to lead to a loss, or impairment, of his mental faculties, and if so, the extent to which that loss, or impairment, was likely to have affected his ability to exercise the powers of recollection and judgment.
There was no contest that each of these witnesses was qualified to offer the opinions she, and he, did, upon the basis of facts observed, or assumed, which facts were admissibly established, and that it had been shown how the field in which they were expert applied to those facts so as to produce those opinions. Each was also independent.
Before turning to the oral evidence, I shall outline some of the documentary evidence. I have taken what follows from Ex. B, to which I was referred by all counsel. The reports and records referred to were made long before the commencement of the hearing.
The deceased was admitted to Concord Repatriation General Hospital on 5 August 2006 and discharged on 12 August 2006. The reason for admission was "left hip pain" and the principal diagnosis was "trochanteric bursitis Asymptomatic left rib fractures". The Discharge Summary also reveals that the deceased declined "rail installation and other OT equipment due to cost".
It was as a result of this admission that the deceased was referred to Dr F Orr and also to the Aged Care Assessment Team ("ACAT") for assessment, post discharge, which led to him to be seen, initially, by Ms S Anderson and, thereafter, by Nurse McDonnell. I shall refer to the evidence by Nurse McDonnell and by Dr Orr in detail shortly.
On what is described as a "GGRM (General, Geriatric & Rehabilitation Medicine) Community Registration/Referral Form", prepared in September 2006, Tomasz is referred to under the heading "Next of Kin Details" as a son. His address and telephone numbers are included. Also noted, in relation to the deceased, is the following: "He has 5 children but says they do not like him & he perseverates on an issue he has with the Taxation Dept... He admits to a poor memory".
A mini-mental state examination ("MMSE") was performed on the deceased on 18 September 2006 and he recorded a score of 24 out of 29.
In another document dated 18 September 2006, which is described as "GGRM Community Care Assessment Form", the names of the deceased's five children are noted, with some other family background information. There is other information, including information about the deceased's financial circumstances. Amongst other things is a notation "aware memory poor - forgets family names".
On 20 June 2007, Nurse McDonnell took the deceased to a further appointment with Dr Orr. Dr Orr's notes state that Nurse McDonnell reported on the joint visit to the deceased's home "by the interpreter & Public Trustee". The notes then state: "gave ideas re will but not completed, Won't sign Power of Attorney, doesn't trust people". Dr Orr later wrote "forgetful - can't remember what ate this morning". Her assessment is recorded as follows, "Cognitive impairment +/- depression"; "? executive function".
Nurse McDonnell sent a letter dated 22 November 2007 to the deceased in which letter she referred to an application for low level residential respite care and a community care package being approved.
On 31 January 2008, the deceased attended the Emergency Department of Concord Hospital. On the Triage Report, the description of "Presenting History" was "Disorientated… When speaking with pt unable to tell me why he was here. Pt unsure of why he is out but knew which Hospital and what day it is. Not able to establish much other HX (history)".
This document also reveals that Tomasz was contacted and he informed that the deceased "suffers from depression but is not normally confused". Subsequently, Tomasz collected the deceased from the Hospital.
The deceased was again admitted to Concord General Repatriation Hospital on 8 April 2008 and was discharged on 28 April 2008. On this occasion, the diagnoses were "Dementia and UTI (urinary tract infection)". It was also noted that his "Daughter-in-law has also been in contact with social work [sic] with regards to application for Guardianship and Financial Management".
Nurse McDonnell made an application dated 18 June 2008 to the Guardianship Board. In the application, she nominated Tomasz to be appointed as the deceased's financial manager.
In support of an application to the Guardianship Tribunal, a report was obtained from Gabriella Unsen, the Staff Specialist in Psychiatry of Old Age at Concord Repatriation General Hospital. (The court was informed, from the bar Table, by counsel, that each of the parties had attempted to speak with Dr Unsen, but that "she has told both parties that she cannot add anything further than what her report states": T125.46-125.49.)
The report, which is dated 29 May 2008, reveals that Dr Unsen first saw the deceased at his home in May 2007 and then again in May 2008. She was able to converse with the deceased in the Polish language "when [she] was not sure if he understood an English language phrase". The report states: "… When I first assessed Mr Budniak at his home in 2007, I noted that his home was unkempt and there were papers and documents on every surface. He was very polite and welcoming and I observed that he was quite well nourished, though his clothes seemed unclean. His affect was labile in that he was quite tearful when the problem with the ATO was discussed, but quite calm otherwise. He had some vague persecutory ideas about the Tax Department and about the various financial advisers he had consulted. He had rigid but confused ideas about what he needed to do and was clearly unable to come to any conclusion or action and was preoccupied with his preceived problem. I tried to explore something about his interests, general knowledge, current affairs etc but these were vague and without detail. His short term memory at that time was quite good on clinical testing. My conclusion at that time was that Mr Budniak had problems with the function primarily of the frontal lobe of the brain, which involves decision making, executive function, ability to make decisions flexibly, and to have insight. On assessing Mr Budniak approximately one year later, I found that his cognitive function had noticeably deteriorated. His English was less fluent and he was more confused, not oriented to time (year, month) though oriented to place. He continued to exhibit rigidity of thinking and inability to change set. He seemed unable to understand the concept of Power of Attorney which both Ms McDonnell and I had tried to explain to him. He was clear in understanding what the purpose of a Will was, and that he was going to leave his estate to all his children, but I was not convinced that he had a full understanding of his current financial situation, as he was not able to give me details of his assets. Ms McDonnell reported that the dispute with the ATO had not gone any further towards resolution and his regular payments were not being made. She also reported that Mr Budniak was less able to [take] care of himself and his home, she wasn't certain how well he was eating and he was isolating himself from any social interaction. In my professional opinion Mr Budniak is cognitively unable to manage his financial affairs. I support an application to the Office of the Protective Commission as he has already expressed vehement opposition to the Public Trustee serving in that role. With respect to Guardianship with accommodation powers, I believe it would be suitable for Mr Budniak's son Tom to hold that as Mr Budniak is functioning increasingly poorly at home and does not have the insight to be aware of that."
In a Report prepared for the Tribunal by the "Co-ordination and Investigation Unit", written by Case Officer Jill Forrester, the following appears: "Mr Stanislaw Budniak is an 86 year old widowed gentleman of Polish background. Mr Budniak migrated to Australia during the 1940's. Mr Budniak has five children however is only in contact with one son, Mr Tom Budniak. Currently Mr Budniak lives alone in his own home in xx xxxx Street, Ashfield. At present Mr Budniak refuses to receive any services and has a current approval for low-level care and remains on the waiting list for a Polish Community Aged Care Package. Mr Budniak has a history of heart palpitations, prostate problems and a right lower lung lobectomy undertaken in 1960's. A cerebral CT scan conducted on 23/2/07 and again on 9/04/08 indicated moderate frontal atrophy. Mr Budniak is currently in dispute with the Australian Taxation Office (ATO) in relation to payment of taxes over previous years. Mr Budniak is a self funded retiree however he reports that he becomes confused with the management of his financial matters. … In the application Ms McDonnell advises the Tribunal Mr Budniak forgets to pay accounts and won't allow others to pay accounts due to his distrust of others. Ms McDonnell further advises Mr Budniak is involved in an ongoing dispute with the ATO which may have exacerbated recent periods of paranoid delusions. Mr Budniak is also non-compliant with medications. … Views of the person In the past Ms McDonnell has arranged for a representative from the Office of Public Trustee to assist Mr Budniak in his financial matters. This assistance was declined by Mr Budniak. Mr Budniak has sought advice from various solicitors and accountants in the past however he has never been able to follow through with their advise [sic] and bring his financial matters to a conclusion. … Other issues Mr Budniak does not have a Power of Attorney and despite assistance to advise him of what the function of a Power of Attorney is the Tribunal has been advised Mr Budniak appears unable to grasp the concept.

… Disability/Incapacity On 3 April 2008 the Ashfield Police found Mr Budniak in a confused state sleeping in a neighbour's yard and they contacted the Concord Community ACAT. Mr Budniak agreed to a voluntary admission to the Psychogeriatric ward at Concord Hospital for Neuropsychological assessment. Upon discharge Hostel Respite was planned however shortly after arrival Mr Budniak absconded. Mr Budniak agrees his memory has declined over the past 18 months. Mr Budniak has a history of depression and anxiety. Mr Budniak will not accept services to his home as he is distrustful of other people however of late he has been more accepting of assistance from his son, Tom Budniak."

None of the Defendants were identified as "Other people involved in the Guardianship Application".
On 11 September 2008, Tomasz was granted a Financial Management Order and a Limited Guardianship order for the deceased. In its Reasons for Decision, the following appears: "… The views of Mr Stanislaw Budniak Mr Stanislaw Budniak was able to provide his views to the Tribunal, both directly, and, at some times, with the assistance of the interpreter. He was clear in his view that he did not believe that he needed a guardianship order, as he was coping well at home. He reposed great confidence in his general practitioner, Dr Adams. He did not however seem to have much understanding of the referrals which he had been given for depression, and the treatment for that. He denied that he had any difficulty with his medications. The views of Mr Tom Budniak and Mrs Natalie Budniak Both had been considerably involved with Mr Budniak over the last few years. They confirmed that he had isolated himself from his other children, and, on the day of the hearing, Mr Budniak had indicated that he was unhappy with them for supporting the application. Mrs Natalie Budniak said that Mr Budniak needed prompting in relation to his appointments, to which she, and sometimes Mrs McDonnell, took him. She said that alcohol exacerbates his forgetfulness. Both said that it was important that Mr Budniak remain at home in his familiar surroundings, with the support of the Polish community welfare. Mr Tom Budniak had been generally able to oversee his father's health care, however, they were concerned that there was a need for some services for Mr Budniak, which he refused. They were also concerned that Mr Budniak had no insight into his need for services, and respite accommodation. Mr Tom Budniak said that his father's dispute with the taxation office was so overwhelming to him that it was beginning to affect his health, and he seemed to have no insight into any depression arising from that. … Mr Tom Budniak and Mrs Natalie Budniak also expressed the same concerns. Dr Gabriela Unsen also concluded from her assessments that it appeared that Mr Stanislaw Budniak was unable to manage his financial affairs. They understood that Mr Budniak had substantial investments, and had a reasonable income in his retirement from those investments. Mr Tom Budniak said that his father still thought that $10.00 had the same value now as in the 1980s, and his concern for the relatively small cost of services was misplaced. They were appreciative however that Mr Budniak was concerned to retain his assets so that they could be passed on to his children. They said he seemed however to not understand that he ought to be able to utilise some of his income to meet the modest cost of services, and meet the costs of rewiring his house and for minor household repairs. Mr Budniak agreed that he had failed to pay some accounts, and it seemed that this arose because of his concentration on his dispute with the taxation office. When it came to a discussion of that dispute, he indicated that he was unwilling to discuss it further. He seemed however happy to discuss in general his income and assets, but could not indicate what were the value of its investments, nor his income from them. It may have been correct that he now owed the Australian Taxation Office $75,000.00. He could not say whether he had the ability to pay that sum. He acknowledged that the house needed repairs, but appeared to believe that he could not afford to meet those repairs. He did not know the cost of those repairs. On the basis of the above evidence and using the test as outlined above, Tribunal was satisfied that Mr Stanislaw Budniak is incapable of managing his financial affairs."
Neither party referred to other parts of Ex. B which detailed events after September 2008.
Nurse McDonnell swore an affidavit on 16 October 2013. She worked as a Psychogeriatric Community Nurse with ACAT between 1990 and 1997. She re-commenced that work in 2003. She has qualifications as a Gerontological Nurse, which, I assume, means that she has engaged in the study of the social, psychological, cognitive and biological aspects of aging. It is clear that she was a trained nurse of some experience in aged care.
She was the ACAT Nurse who visited the deceased at different times between 18 September 2006 and 11 March 2010.
In addition to her affidavit, a copy of Nurse McDonnell's Progress Notes formed part of Ex. B in the proceedings. I shall shortly refer to some of those notes to which she was taken in cross-examination and otherwise. It is clear that her conclusions were based upon her contemporaneous observations and conversations with the deceased over a reasonably long period.
In her affidavit, Nurse McDonnell notes that the deceased was admitted to Concord Repatriation General Hospital on 5 August 2006 and discharged on 12 August 2006. She made her first visit to the deceased, at the Ashfield home, on 18 September 2006. She says that during her involvement with the deceased, she had telephone contact with Tomasz and his wife, Nathalie.
The deceased told her that he had five children, who he named and identified his or her gender, but if those other children were mentioned, he "became emotional". He explained to her that he had "a falling out with my children after my wife died regarding the property next door and I don't have any contact with them".
Relevantly, Nurse McDonnell's affidavit (with some corrections that she made at the commencement of her evidence) included the following: "… 13. On my first visit to Mr. Budniak, and on a number of times thereafter, Mr. Budniak discussed his issues with the Australian Taxation Office ("ATO"). I saw that Mr. Budniak's financial affairs were quite complicated because he had investments and shares. Mr. Budniak had difficulty in managing his finances and so I recommended that he speak with the Public Trustee. I did not think it appropriate to contact the OPC because, though I could see that he had complicated financial affairs, I felt that this would be sorted out with his family or the Public Trustee. … 17. On the 30th January, 2007 I visited Mr. Budniak and noted that Mr. Budniak had not visited the Accountant or the Public Trustee at that time, but he knew of his appointment with Dr. Orr the following week. 18. On the 31st January, 2007 I spoke with Mary at the Public Trustee on the phone and said, "Mr. Budniak has been to the Public Trustee to organise a Will and think about financial management but he has not returned". In my opinion, Mr. Budniak… knew he wanted to live in his own house, he was doing his own shopping, and he was managing as a single person. … 23. On the 29th March, 2007 Mr. Budniak informed me that he had lost his licence for one month and was to be reassessed for a licence on the 24th April, 2007. 24. On the 26th April, 2007 I organised a home visit with an Interpreter and Matt Kennedy, to visit Mr. Budniak at home and confirmed this on the 3rd May, 2007. 25. On my visit on the 8th May, 2007 I had arranged for Mr. Matt Kennedy from the Public Trustee, and an Interpreter, Agnes, to attend the home of Mr. Budniak to speak with him which they did in my presence… Mr. Budniak discussed the Will and gave an outline of his affairs but he did not want to sign a Power of Attorney, he wanted to discuss it with his son. I did ask Mr. Budniak, 'What about the other grandchildren?', he replied 'This one, not the others, because he's Tom's oldest son'. … 28. On the 12th July, 2007 I referred Mr. Budniak for shopping services… I discussed this with 'Maria' on the 12th July, 2007. … 30. On the 20th November, 2007 I referred Mr. Budniak for low level respite care… for assistance with shopping, housework and transport. 31. On the 22nd November, 2007 Mr. Budniak was accepted as being eligible for low level residential respite care and a community care package. Mr. Budniak did not take up these offers. … 33. On the 31st January, 2008 Mr. Budniak at the Emergency Department of Canterbury Hospital. … 36. On the 3rd April, 2008 Mr. Budniak was said to have been found confused in a neighbour's yard, in hindsight, I feel that this was the beginning of Mr. Budniak losing his capacity and the start of his problems. When I spoke with Mr. Budniak on the 9th April, 2008 he told me a long detailed story of being kidnaped [sic] and how he fled to a neighbour's garden… I do not know what caused this episode on the 3rd April, 2007 [sic]. 37. On the 8th April, 2008 Mr Budniak was admitted voluntarily to Concord Hospital until the 28th April, 2008 suffering from dementia and a urinary tract infection ('UTI')… … 39. On the 29th May, 2008 a report was prepared for the Guardianship Tribunal by Dr. Gabriella Unsen, Staff Specialist in Psychiatrist of Old Age at Concord Hospital… 40. On the 19th June, 2008 I made an application to the Guardianship Tribunal for Mr. Budniak's son, Tom Budniak, to be made Financial Manager and Guardian… 41. On the 26th June, 2008 I wrote a report for the Guardianship Tribunal regarding Mr. Budniak… 42. On the 11th September, 2008 the Guardianship Tribunal made a Limited Guardianship Order in favour of Mr Bodniak's [sic] son, Tom Budniak, and a Financial Management Order in Tom Bodniak's [sic] favour jointly with the Protective Commissioner… … 44. On the 5th April, 2009 until the 7th April, 2009 Mr. Budniak was in Concord Hospital after a fall at his home. 45. On the 8th April, 2009 Mr. Budniak was admitted to Canterbury Hospital… 46. On the 8th April, 2009 Mr. Budniak was transferred from Canterbury Hospital to Concord Hospital until the 15th April, 2009. 47. On the 16th April, 2009 Mr. Budniak was admitted to Concord Hospital and discharged on the 6th May, 2009 to his home with a Polish Community Aged Care package… 48. On the 7th May, 2009 I made an application for Meals-On-Wheels for Mr. Budniak. … 52. In February 2010, Mr. Budniak was an inpatient in Concord Hospital. On the 18th February, 2010 he was discharged and it was recommended that he be transferred to a Nursing Home or Hostel. Mr. Budniak's diagnosis was 'Dementia complicated by paranoid ideation and delirium…'"
Having regard to Ex. B, Paragraph 18 of Nurse McDonnell's affidavit was clarified to mean that she called the Public Trustee and spoke to Mary who told her that "Mr Budniak visited x1 to organise will & said he would think about financial management but did not return."
Nurse McDonnell was cross-examined. I summarise her evidence given in cross-examination: (a) She understood that the case involved the deceased's capacity at the time he made the 2007 Will. (b) She was taken to a copy of her Progress Notes (Ex. B/32-52). (c) Although when she first attended the Ashfield home, she observed parts of it to be untidy and certain rooms of the house to be blocked off because they were full, she considered the home to be safe and clean enough. Sometimes, the deceased would tidy up before she got there, and although the kitchen might not have been the cleanest, she thought that the deceased was managing. (d) She described the deceased as "clean and well-presented". Whilst his verbal skills deteriorated over time, she did not consider that he had difficulty communicating in English. (e) The deceased, over the whole of the time that she saw him, was greatly concerned about his continuing dispute with the Australian Taxation Office. He was very aware he had the tax problems, but he did not believe, or want to acknowledge, that he owed any money. He had taken her advice about trying to find an accountant to assist, but he told her that he had not been able to do so. Over the years that she saw him, he showed her correspondence from solicitors and accountants, concerning his financial affairs. However, he was unable to resolve the tax problems that he had. (f) The deceased, at times, showed a reluctance to pay bills, but usually he did pay them. He seemed to appreciate that if bills were unpaid the particular services might be cancelled. It was this appreciation that usually prompted him to pay the unpaid bill. (g) She said that the deceased informed her that he had a poor memory, but her observation was that his memory fluctuated. She found that "sometimes he was very accurate and very good and then he would say he had a day when he wasn't so good". (h) She had advised him to see the Public Trustee. The deceased also told her that he did not think that he could trust the Public Trustee. He seemed to remember discussions with her about the assistance that the Public Trustee could provide but he was reluctant to involve it because of the costs involved. (i) Whilst she was aware that, on occasions, the deceased missed appointments that had been made for him, and though he may have forgotten these "once or twice", generally, "he had other things that he thought were more important". (j) The deceased did not want to take any medicine, which resulted in him not taking medication prescribed by Dr Orr. (k) She accepted that the deceased had "a mild cognitive impairment" but "was still functioning on many other levels". She thought he also had depression. (l) The deceased had been able to inform her of some of his assets. It was clear to her, however, that there "were shares and things. It was very complicated. He had lots of paperwork from companies." (m) Whilst the deceased had been unable to comply with an apparent request from the Public Trustee for him to compile a list of assets, Nurse McDonnell was unable to state, if the deceased had been unable to do so, whether he did not want to do so, or whether he found it overwhelming to do so. (n) It was Nurse McDonnell who organised the meeting at the deceased's home, on 8 May 2007, with Mr Kennedy of the NSW T & G. She had been the nurse who had been present at that meeting and it was she who had organised the Polish interpreter to be present. (o) As a matter of courtesy, Nurse McDonnell had informed Nathalie of the meeting, but neither Tomasz nor Nathalie attended. (p) In the Progress Notes, Nurse McDonnell described what had occurred at the meeting on 8 May 2007. She confirmed what she had written, namely that Mr Kennedy had explained the role of the Public Trustee and that they had discussed his Will and a Power of Attorney. The deceased had agreed that the Public Trustee should take over his affairs, but he did not want to sign a Power of Attorney. He wanted to discuss it with his son first. More complicated parts of what Mr Kennedy was saying were translated into the Polish language, to make sure that the deceased had a good understanding in English and in Polish and so as to avoid any misunderstanding. The deceased had questioned Mr Kennedy about costs and commission and had not wanted to appoint the Public Trustee because of the cost involved. Subsequently, she spoke to Nathalie and "suggested that they take [the deceased] to the [Public Trustee] office to finalise Will and discuss management". (q) The deceased did tell Nurse McDonnell that he had lost his driver's licence and that he was going to appeal. (r) When asked about the reasons why the deceased could not retain his licence, Nurse McDonnell thought it had to do with his temperament ("just very concrete sort of person. Believed he was always right"), his age, and lack of reflexes and "parking where he shouldn't and then refusing to pay a fine". However, she did not know whether there was any specific reason identified for the loss of his driver's licence. (s) The loss of his driver's licence had made the deceased far less mobile since he was not able to drive (although on occasions he had done so). She did not attribute his loss of mobility to a deterioration of his physical condition. (t) Nurse McDonnell, initially, confirmed that the incident in April 2008, when the deceased was found in a neighbour's backyard, "was the first time I'd had any problems of this nature with this amount of confusion" and that this "was when things went sort of downhill". She also acknowledged that his capacity was less than one hundred per cent prior to this incident and that there had been a slow deterioration up to April 2008, but that "it wouldn't have been obvious". She agreed that in April 2008, it was the beginning of the deceased's loss of "capacity to look after himself safely" and the start of "problems that arise when he couldn't look after himself safely". (u) The deceased had been voluntarily admitted to hospital in April 2008 with one diagnosis of his medical condition then being a urinary tract infection. Nurse McDonnell confirmed that this infection may have affected cognition. She stated "you can become very delirious. That's something we always look for when we have someone who suddenly becomes increasingly confused. You look for infection: delirium."
I note that there are no entries by Nurse McDonnell in the Progress Notes between 16 August 2007 and 12 November 2007.
I found Nurse McDonnell to be a very impressive witness. She was open and frank in her answers in cross-examination. She had the opportunity, over a period of some years, to observe the deceased, from a medical, and other, point of view, at around the time that he gave the instructions for the 2007 Will and, subsequently, when he had executed it. It was not suggested, nor could I detect, that she suffered from any lack of independence or objectivity. I have no hesitation in accepting her evidence as truthful.
Dr Orr, a Consultant Psychiatrist, swore an affidavit on 7 July 2014 to which was annexed a report dated 30 June 2014. The report contains the following relevant matters, which I summarise: (a) Dr Orr was the deceased's treating psychiatrist between September 2006 and March 2008. During this period, she wrote a number of letters to different treating doctors, a copy of which forms part of the evidence. (b) The report was prepared from a review of notes and letters written by Dr Orr regarding the deceased. It is a full and accurate summary of the notes and letters. (c) The deceased had been referred to the Psychiatric Outpatient's Department of Concord Repatriation General Hospital on 6 September 2006, "for assessment for depression following an inpatient admission under the Rheumatologists". (d) Whilst Dr Orr, during the period she was his treating psychiatrist, did not assess the deceased's testamentary capacity, she became aware, from her interviews with the deceased, that he owned his own property, that he had investments, and that he was a self-funded retiree. He also told Dr Orr that he had five children. (e) The deceased was able to provide details of his background to Dr Orr, which details are set out in the report. (f) The deceased identified his son, Tomasz, as his next of kin; that Tomasz lived in close proximity, and that he appeared to have been assisting the deceased as required. (g) Dr Orr described the deceased as appearing "to be socially isolated, sad and lonely. He presented as a very independent and proud person. He had been described as stubborn". (h) Dr Orr identified the deceased's medical history as: "1. Right pneumonectomy in 1966 following a 'war injury'. 2. TURP, 2003. 3. Trochanteric bursitis, 2006. 4. osteoarthritis and 5. psoriasis. He was an ex-smoker, but smoked for 40 years in the past. There was a stated history of moderate alcohol ingestion in the past. He stated now he might go to the Polish club just once or twice per week." (i) The deceased's medication included: 1. aspirin 100 mgs daily 2. seretide inhaler 2 puffs twice a day 3. Citalopram 20 mgs daily (j) Dr Orr described the deceased as "pleasant and co-operative" and "tidily dressed". She states that he gave a "long circumstantial history regarding ill-treatment by the Australian Taxation Office which appeared to have commenced in 2000". He expressed "concerns about 'problems' with his family, having reduced contact. He partly blamed himself for this as he said he worked a lot to keep the family, and may not have spent enough time with them". (k) Dr Orr described the deceased as "solemn" with "depressed" mood, and his affect as "occasionally anxious and dysphoric, though reactive". She described his speech as "slow, soft and accented, though within normal range and easily understood". She thought his "thought form was circumstantial", with "the content… largely regarding his dispute with the ATO, financial distress and reduced contact with some family". He "denied thoughts of self-harm" and there "were no perceptual abnormalities. He was oriented to time, place and person". (l) Dr Orr saw the deceased, next, on 6 December 2006, when she administered a "basic screening test, the RUDAS" (the Rowland Universal Dementia Assessment Scale), in which he scored 25/30, which "suggested the possibility of some mild cognitive impairment, but the result could have been complicated by pre-occupation with the ATO, stress, frustration and feelings of depression". (m) Dr Orr saw the deceased again on 20 December 2006, when he attended an appointment and brought with him "a large volume of papers to explain his taxation problems… He also indicated he felt distressed that he might not see his family at Christmas." (In a letter sent to Dr Adams-Dzierzba following this appointment, Dr Orr noted that the deceased "had brought in some of his papers related to his taxation returns" and that "he has papers organised in an appropriate fashion".) (n) During 2007, Dr Orr saw the deceased on 5 separate occasions. She said that there were recurring themes during these interviews. "His main anxiety was organising his financial paperwork. He was also concerned that his memory may be slowly decreasing." (o) Dr Orr wrote: "Over the 12 month period there appeared to be a loss of his organisational ability, which would be consistent with early cognitive impairment. His mistrust of people, obsessional traits and need to be in control impacted on his ability to cope. He was unable to manage the care of his property. He had been reluctant to have tradespeople there. He was concerned about costs and did not trust people being in his property. We discussed a voluntary admission on a couple of occasions so we could assess his mood adequately and observe his functional ability to organise appropriate care. However he would indicate he would think about it or discuss it with his son Tom, when available." (p) Dr Orr next referred to an Aged Care Assessment Team (ACAT) report, dated 21 June 2007, by Case Manager, Nurse McDonnell, who reported that the deceased had "visited the public trustee with an interpreter. It was reported that he was reluctant to sign forms as he had a mistrust of people. It was stated that he had not at that stage completed a will and hadn't signed a Power of Attorney". (q) Dr Orr also wrote: "Although antidepressants had been prescribed he was largely non-compliant with medication. He thought his depression was secondary to his ATO dispute and his distress may resolve if the dispute did." (r) Dr Orr also refers to "A CT scan in February 2007, organised by his GP [which] apparently showed moderate frontal atrophy". (s) Dr Orr reviewed the deceased on 14 February 2008 and again on 17 March 2008. She states: "… The content of the interviews was repetitive. However he was more worried about loss of recent memory. He had some insight but poor judgement regarding his condition. His case manager was also concerned about his memory and ability to cope at home safely. There was concern about self-neglect and not eating adequately, he had lost weight. His mini mental state examination (a screening test) was 24/29, borderline for cognitive impairment. At the latter interview he appeared deflated, he had been 'strong in wartime but was not able to fight now'. He felt he had a 'break in his nerves' and would consider an admission. I had talked to his son Tom around this period who indicated that Mr Budniak may be drinking more alcohol than usual. This could also have impacted on his presentation and mood. A voluntary admission occurred on the 8/4/08, under the Geriatricians with Psycho-geriatrician input. A diagnosis of dementia was made as evidenced by a progressive decline in cognitive function over an 18 month period. From the hospital notes it appears that he was settled during this admission and independent in basic daily activities. When discharged he was followed up as an out patient by the Geriatrician in the Dementia clinic." (t) Dr Orr summarised her conclusions about the deceased as follows: "Mr Budniak attended the psychiatry outpatients department over a period of approximately 18 months from September 2006 until March of 2008. He had a fixed belief that the ATO had unfairly assessed him and he was unable to resolve the problem. He had a picture of a slow, progressive cognitive decline over this period with the development of cognitive deficits manifested by short term memory impairment and disturbance in executive functioning, as evidenced by difficulty with planning and organising. In 2008 it was impacting on his ability to function near his previous level. His affective changes (depressive features) were likely to be part of this process. Discussions with his ACAT case manager over this time also indicated concerns about his self-care and ability to manage at home independently. In April 2008 he had an inpatient assessment with a diagnosis of dementia. His care was continued via the Dementia clinic, as an outpatient. A person with early dementia may have testamentary capacity and this should be assessed at the time of making a will. It is a formal assessment and one that I had not been requested to do."
Dr Orr was cross-examined. I summarize the evidence that she gave in cross-examination: (a) She had been practising as a psychiatrist for about 15 years. (b) She had written a number of reports during the period that she was treating the deceased at the Outpatient's Department of Concord Repatriation Hospital, a copy of each of which reports were included in Ex. B. (c) Dr Orr had never fully questioned the deceased about his estate. Matters relating to his estate came up in conversation with him. (d) Dr Orr said that the deceased's "memory was actually reasonable but often appeared deficit [sic] on the basis that he wanted to talk about the ATO… he could tell me usually what had been happening with him in recent times when I had seen him." (e) A reference to "dysphoria" in the reports is usually a reference to "someone who is unhappy or perhaps feeling down presenting in a way that they look sad or unhappy". The condition can be characterised by anxiety, depression, unease. (f) A reference to "atrophy" meant "decreasing in size" and is generally attributed to a deterioration in the particular tissue or organ that is under examination. (g) When she saw the deceased, he had already been prescribed "Cipramil", a medication used in the treatment of depression or anxiety. He was not taking it regularly. Although it was put to her that some of the side effects of Cipramil included memory loss or confusion when used as the deceased used it, she did not observe that. (h) The RUDAS was a screening, rather than diagnostic, test for dementia, which was not used regularly at the time she had used it with the deceased. It reduced the effect of factors such as education, ethnicity and language. The suggestion, nowadays, was that a score of less than 24 would be one of cognitive impairment. His score, although noted as 25 out of 30, should have been 26 out of 30. So the screening test, on its own, did not suggest that the deceased had cognitive impairment. (i) Despite that score on the RUDAS, Dr Orr was satisfied, when she saw the deceased in December 2006, that he had some mild cognitive impairment. (j) When it came to the dispute with the Australian Taxation Office, the deceased was "overwhelmed by it and he had difficulty with both planning and organisation in terms of managing that paperwork. He was very anxious about it and very distracted and overwhelmed by it… He was unable in that period of time to manage that specific problem to any resolution without assistance… [He became] totally preoccupied by [the problem]." (k) The ability to plan and the ability to formulate a strategy was something that one loses when cognitive impairment progresses. The loss was one of the facets of cognitive impairment. (l) The deceased did inform Dr Orr that he had seen the Public Trustee. Whilst she noted that he had difficulty with the concept of an Attorney (under a Power of Attorney) and an executor, she had not discussed either of those concepts with him. (m) The deceased did not tell Dr Orr that he had made a will and Dr Orr did not discuss the concept of a will with him. She had not seen the deceased in or about October 2007. (n) Dr Orr found the report of the radiologist (which identified frontal lobe atrophy) "interesting, in that it says some change to cerebral atrophy are noted particularly in the frontal regions which suggests it's not in other areas. If there was some shrinkage, it was there. Moderate changes to the frontal atrophy are noted… That would impact on the fact that he had loss of executive function because that's what the frontal lobe does. It helps with planning, organisation and being able to change set when you're, sort of, talking about things so that was consistent with what I was seeing when I was examining him." (o) Dr Orr did not conclude that the deceased's failure to attend some appointments with her was due to him not remembering the appointment. (p) Whilst he was having some problems coping at home, part of the problems were caused by the fact that he did not want to pay people to do things because he was fairly careful with his money.
In re-examination, Dr Orr stated that the cognitive impairment to which she had been referring related, principally, to the deceased's organisation and planning skills, which related to being set a task and being able to achieve it. She also was satisfied that he understood her advice, but that he was a fairly obstinate man who, if he did not want to take the advice she gave him, was not going to.
Finally, Dr Orr said that when he was examined, having been admitted, voluntarily, to the psychiatric ward of Concord Hospital, in about April 2008, he was not diagnosed with depression, but at that time, there was a cognitive decline, and he was diagnosed with dementia.
The following questions from the Bench and Dr Orr's answers, followed the cross-examination by senior counsel (T152.39-T156.21): "Q. Mr Ellison raised seven matters which, it seems to me, were factual matters in part and medical matters in part. The medical matters appear to have been depression, anxiety, showing signs of cognitive impairment and memory defects. A. Mm-hmm. Q. The factual matters appear to be, so it seems, ongoing dispute with the ATO, non-medicating… properly and being unsure of all his assets. Is that a fair way of depicting the seven matters that Mr Ellison put to you? A. Yes. Q. If I may deal firstly with the medical matters, and I'll deal with them individually if I may, you just told me that at least in 2008 he was diagnosed as not suffering from depression. A. Mm-hmm. Q. Working backwards, does that non-diagnosis of depression cause you to doubt whether, in fact, he was suffering from depression in 2006 and 2007? A. It confirms my uncertainty about whether he was depressed because he was sad and he was lonely and he was often tearful and distressed. The medication, when he had taken it, if he was taking it, didn't seem to help, so I don't think he was depressed. I think he was anxious and distressed. He may have been depressed and he had symptoms of depression that also would overlap some symptoms of a frontal - like being tearful, a frontal impairment, but not biologically depressed where it may respond to medication, so people can be depressed but not - medication is not going to be the answer and you don't need to be medicating, so that was the outcome of that admission. He didn't need an antidepressant was one of them. Depression on its own can go away depending on what's happening without medication. Q. In the period that you saw him prior to the diagnosis that he wasn't depressed, was the condition that you observed, so far as there were symptoms of depression, constant or fluctuating? A. Fluctuating, so that if someone is distressed and not managing issues, they can appear depressed and not managing and not enjoying things, so the - which was the value of an admission was to be able to observe this. Q. The next medical condition, as I understand it, is the anxiety. Was that a medical condition that was a symptom of something? A. Well, anxiety, I suppose, comes into the area of mental health. There didn't appear to be treatable medical conditions that might caught [sic] anxiety, diabetes or things like that, and his anxiousness was really around organising this problem with the ATO, and then later, you know, it was essentially around that he'd be incredibly anxious that he couldn't be helped, it was going to get worse, that no-one could help him see his way through it, and he'd also become tearful in the interviews when he was talking about it. I don't know that he was anxious when I wasn't seeing him or when he was out of the room. It seemed that, you know, that probably wasn't the case. Q. Do I gather from that answer that that condition that you observed appeared to be based upon a factual matter. A. Yes. Q. That is, the struggle with the ATO? A. Yes. Q. The next thing… Mr Ellison put to you 'showed signs of cognitive impairment'. A. Yes. Q. You later said something slightly different. You later said that in December you saw some mild cognitive impairment. A. In December of which‑‑ Q. 06. A. In December of 06, yes, because I was trying to differentiate what was going on at that stage. Q. Yes. A. And at that stage he still was indicating that he was unable to manage or plan something that he probably would have done four or five years before quite easily considering his background. Q. As I understood what you said subsequently, that was the inability to manage the specific problem of the taxation issue. A. That's what I was assessing that on. That's what I was seeing in front… of me. Q. I'm sorry, I should have asked you, in relation to the anxiety, was that condition constant or fluctuating? A. It fluctuated. I mean, we have quite nice conversations about his work in the past and things like that and sad things that had happened and he wasn't anxious at all then. It would be an arousal about this what sounds like an absolutely difficult situation. Q. In relation to the symptoms of some mild cognitive impairment or, as Mr Ellison put it, signs of cognitive impairment, were they constant or fluctuating? A. No, they were constant around his paperwork. Q. Again, I'm trying to understand, is that specifically task related to his difficulties sorting out his problem with the Australian Taxation Office? A. It was task related and I think it was complicated by maybe - I didn't know Mr Budniak obviously before I saw him and he was unwell but maybe his personality of being able to resolve situations and have people understand and he couldn't understand that people couldn't understand or help him with what was going on, so it was task related, but he's also fairly obstinate and stubborn, so I guess, unless you could help him do it, it was going to be difficult. He appeared obstinate and stubborn. I don't know whether he was. Q. The final matter, I think of medicine at least, is the memory defects. A. Mm. Look, his memory defects turned up on testing. When we did the RUDAS where, after a period of time, we asked them to remember four words and then ask them to repeat it and he remembered three of them and got the fourth one with prompting, so there's memory deficit there for he loses two points which was significant for the score which was 26 out of 30. A mini‑mental state examination which has also been done by different people, where he lost three points on the scoring was remembering later, words that we'd asked him to remember some time later, so they were - short-term memory was registering then what happened, but I notice in other consults or in Dr Lye's assessment, the proper neuropsychological assessment that after 30 minutes he could remember, so his memory appeared to be intact, but if someone is anxious and distracted we don't lay down memory because we're just not taking it in. So his memory impairment wasn't - didn't appear in consultation to be that difficult except for short-term things and later things about - if you asked someone what they had for breakfast but unless you have the same breakfast every day you may not remember what you had for breakfast. You know, he seemed to manage most things. Q. I appreciate that your task or your brief I think you put it was not to determine testamentary capacity. Were you aware that in 1998 [sic] he had written a document in Polish and in English dealing with how he wanted his property distributed? A. No. Q. Were you aware that in 1994 he had written a document in Polish and in English detailing how he wished his property to be distributed? A. No. Q. If you assume those facts would you regard the concept of will-making to be an old memory or a not old memory? A. Look, I think it's an old memory but well, is it a memory? Making wills can change so it can be more about the consistency over time I would imagine in terms of whether it's changed and if it's changed why? Q. I was really asking you about the concept of a will being an old memory or a not so old memory or can you not answer that? A. Well, I can't answer. If I made a will in 1998 I imagine I would remember that but I may want to change it. But I would remember, I would assume, the presence of the will. Honestly, I'm not sure I can answer that. Q. Any of the medical conditions from which - which Mr Ellison put to you, would any of those conditions in 2007 have affected his capacity to understand what a will was? A. Without asking him I'm not sure but if the person talking to him explained it and he could explain the concept of the will then I think he was able to understand it. Q. Thank you. What about in relation to assets, I think one of the things that Mr Ellison put to you as a factual matter was he was unsure of all his assets? A. In terms of his assets he had told me during our interview when you ask people where they live and how they manage financially, I knew that he owned his house, that he had shares but he couldn't tell me how much they were or wouldn't and that he was a self-funded retiree. So I knew that he was independent and he had assets. I didn't ask him the extent further of the assets. I knew that he'd sold a house in the early 2000's and I understood had made money out of it. So I know he had assets. I don't know the extent of them. Q. All right, and again-- A. Because I hadn't asked. Q. And again going back to the medical conditions to which Mr Ellison took you would any of those conditions, if they existed, have affected his capacity to understand who the people were who had a claim upon him when it came to making a will? A. Mr Budniak knew he had five children. I don't know the conditions he had then would have impacted on how he made his will but from the first time that I saw him he had indicated that he didn't feel close to his family and there was one son that mainly did his, bringing him backwards and forwards or assisting him. I don't know, I don't - so he certainly knew who his children were. Q. Would any of the medical conditions to which Mr Ellison referred affect his capacity to weigh up the competing claims when it came to making a will? Are you able to assist there or not? A. I don't know because I haven't asked him about that. He certainly didn't indicate any delusional or make any unusual statements about his family. There didn't seem to be any psychosis or unusual beliefs in terms of his family apart from the fact that there had been problems and that he didn't see them much."
Dr Orr, like Nurse McDonnell, was a most impressive witness. I found her to be an articulate, helpful and reliable witness, and I have no hesitation in accepting her evidence as truthful. It is clear from her evidence that from late 2006, the deceased suffered from mild cognitive impairment and he had experienced some cognitive decline, thereafter. Whilst her opinion does not provide positive support for a conclusion that the deceased had testamentary capacity in either May, or in October, 2007, it does not completely negate such a conclusion.
Dr Tanya Lye, a duly registered clinical neuropsychologist, assessed the deceased on 21 May 2007 and 29 May 2007. Regrettably, although she provided an affidavit that was read, on the morning she was to appear, counsel for the NSW T & G received a letter which was in the following terms: "Dear sir/madam, We refer to your email sent 5 May 2015 instructing Dr Tanya Lye to appear at your chambers this morning prior to the hearing today. This is to advise that Dr Lye has declined to appear before the Court and does not wish to be involved with respect to this matter. It is our understanding that you have obtained an affidavit from Dr Lye affirmed on 20 August 2014 and that if attendance is still required then a subpoena be issued. We request that you direct any future correspondence to our department."
I granted leave to issue a subpoena to attend returnable on Monday 11 May 2015. By arrangement, Dr Lye attended in answer to the subpoena, and was cross-examined, on Tuesday 12 May 2015.
A copy of Dr Lye's report, under her hand and that of Susan Van den Berg, a clinical neuropsychology intern, is annexed to her affidavit, and contains the following relevant matters which I summarise: (a) The deceased had been referred for neuropsychological assessment by Ms McDonald of ACAT and his General Practitioner "following concerns about an 18-month history of memory decline". (b) The deceased was described as presenting as "a pleasant man", with slightly stained clothes, but otherwise being well-groomed. She stated that he "displayed appropriate affect and a good sense of humour". He was "mildly tangential in conversation." (c) The deceased reported that his memory had declined over the past 18 months but he "denied any other cognitive difficulties". He also reported that he "becomes confused with the management of his financial matters". He was fixated upon grievances with the ATO. (d) Tomasz confirmed that the deceased "is having difficulty managing his finances" and that he "has become overwhelmed by his current financial responsibilities, which include completing a quarterly BAS statement, selling shares and paying bills". (e) Dr Lye regarded the deceased as demonstrating "a reasonable understanding of his current financial situation". Whilst he had been able to provide value estimates of his house and other assets (verified by Tomasz), he was unable to provide an estimate of the value of his shares. The report then states: "His understanding of the purpose of a Will was adequate and he was able to report the most logical beneficiaries of his Will. Mr Budniak was unable to demonstrate an understanding of the purpose of a Power of Attorney, despite it being explained to him several times, and appeared to confuse the concept with that of the Executor of a Will. However, it is important to note that he has recently been reading literature to inform himself about the process of writing a Will". (f) Dr Lye performed a neuropsychological assessment with the assistance of a Polish interpreter. She found the deceased to be "fully oriented to place, but not fully oriented to time (incorrectly stating the date, month and time of day). His description of current events was vague. His attentional capacity was impaired." (g) There was no evidence of expressive or receptive language dysfunction at the conversational level. Memory functioning was generally intact. (h) Dr Lye summarised her conclusions as follows: "… Mr Budniak's acquisition and retention of new verbal information presented in story format were within normal limits. He displayed adequate learning on a simple picture memory task, and his retention of this information over a 30-minute delay was excellent, suggesting intact hippocampal memory function. Mr Budniak's performance on a task of verbal abstract reasoning fell within the superior range of ability. On a basic sorting task, he displayed reduced conceptual flexibility, whereby he required strong prompting and demonstration to switch between modes of thought. Summary and Impression In summary, Mr Budniak's profile is characterised by deficits in the areas of attention, temporal orientation, and conceptual flexibility. He displayed mild tangentiality in conversation, and seemed to be rigid in his thinking. In contrast, his verbal abstract reasoning, and learning and memory appear to be well preserved. Of note, Mr Budniak demonstrated good retention of new information on memory testing, with no evidence of rapid forgetting. While many aspects of Mr Budniak's cognitive functioning remain intact, there is evidence of higher level deficits, such as mental rigidity and reduced capacity for information processing. These deficits, together with certain longstanding features of his personality style (e.g. stubbornness, fierce independence, and reluctance to accept advice), raise concerns about Mr Budniak's capacity to competently manage his finances. Mr Budniak has admitted that he finds his finances confusing. He stated that he would like some assistance from his family regarding financial matters. Despite it being explained to him several times during the session, Mr Budniak was unable to explain the concept of a Power of Attorney, and he continually confused the role with that of an Executor of a Will. This limited knowledge suggests that Mr Budniak does not have the capacity to appoint a Power of Attorney at this stage. However, he displayed some knowledge of the concept of a Power of Attorney and we believe that with some additional instruction and clarification, he is likely to be able to fully grasp the concept. In this event, it is strongly recommended that a Power of Attorney, such as Mr Budniak's son, Tom, be appointed to assist him with financial matters. If Mr Budniak is not agreeable to appointing an enduring Power of Attorney, or if he is unable to demonstrate sufficient understanding of the nature and effect of signing a Power of Attorney, then the only remaining alternative would be an application to the Office of the Protective Commission, given that he is unlikely to agree to financial management under the Public Trustee."
Dr Lye prepared a subsequent report, following an assessment of the deceased, on 10 April 2008. I shall not detail all of the contents of the report, but having, again, conducted an assessment of the deceased, with the aid of a Polish interpreter, she concluded: "In summary, Mr Budniak's documented cognitive profile is suggestive of deficits in the areas of attention, working memory, higher-level visuo-constructional skills, verbal learning, and executive functioning. In particular there was evidence of significant decline in Mr Budniak's encoding of complex verbal information since the time of the last assessment, as well as marked deterioration in his verbal reasoning. This latter finding appears to reflect the emergence of a more concrete thinking style over the past 10 months. The observed decline in Mr Budniak's memory and reasoning over the past 10 months suggests that his deficits may be progressive, possibly reflecting an underlying neurodegenerative process. While Alzheimer's disease should be considered in the differential diagnosis given his deterioration and the documented atrophy, his cognitive profile is not typical of classic Alzheimer's disease due to his intact delayed retention. In general, his deficits appear to be more consistent with frontal systems dysfunction. I understand that the available brain scans have not presented any compelling evidence of cerebrovascular disease. However, there are a number of factors which could be contributing to the clinical picture, including his lowered mood, his alcohol intake (which, according to Dr Orr's recent letter, his son thought might have increased recently) and some features of his personality style which are apparently longstanding."
Following some correspondence with counsel for the NSW T & G, Dr Lye prepared a further report dated 11 June 2014. In that report, she confirmed that "the assessment [of the deceased] was conducted for clinical purposes and therefore the interview and testing were not tailored to address the issue of testamentary capacity" but to "document [his] cognitive status with a view to providing an opinion regarding his capacity for financial management".
Dr Lye also reported: "… Of note, the issue of Mr Budniak's Will only arose in the context of Mr Budniak confusing the concepts of an Executor of a Will and Power of Attorney. As such, his Will was only discussed in a peripheral fashion. We were not aware of the fact that he had prepared his Will earlier that month and therefore did not pursue further questioning to probe and investigate this issue. It is noteworthy that when asked at the time of the assessment if he had a Will, Mr Budniak reported that he did not have one. Accordingly, it is difficult to provide a retrospective opinion regarding testamentary capacity without having conducted an assessment for that specific purpose. Consequently, I do not have all of the information that would be required to address each of the questions pertinent to the legal test for mental capacity to make a Will [as set out in the case of Banks v Goodfellow (1890) [sic]]. A neuropsychological assessment for the purposes of assessing testamentary capacity would involve more extensive questioning about Mr Budniak's assets and his knowledge of the concept and purpose of a Will, as well as discussion of his chosen beneficiaries and his understanding of the claims of any potential heirs. Based on the information available from my 2007 neuropsychological assessment of Mr Budniak, my opinion is limited to the following comments: [1] Mr Budniak demonstrated a basic understanding of the purpose of a Will, although he repeatedly confused the concepts of an Executor of a Will and Power of Attorney. He reported that he did not have a Will; he did not tell us that he had prepared his Will only weeks earlier. [2] Mr Budniak was able to provide estimates of the value of his assets, including his home, car and the balance of his bank account. He also provided an estimate of his outstanding tax debt. Tom verified the value estimates provided by his father. However, Mr Budniak was unable to provide an estimate of the value of his shares, which seemed to be due to his rigid insistence that he needed to consult paperwork to even estimate their value. [3] We did not formally assess Mr Budniak's ability to comprehend or appreciate the claims to which he ought to give effect. However, in the course of our discussion he mentioned that he would leave 'most' of his assets to Tom. Again, we did not pursue this line of investigation because it was peripheral to the purpose of our assessment. We did not ask him to clarify whether there were any other potential beneficiaries or to explain to us the reasoning behind any such decisions. [4] We were not aware of any 'disorder of mind', such as delusion of hallucinations, which would influence Mr Budniak's decision making."
It is noteworthy that when the deceased told Dr Lye that he did not then have a Will, he was correct (at least so far as the reference to a Will meant a duly executed Will). All that he had done on 8 May 2007, with Mr Kennedy, was to give some instructions for the preparation of the Will.
Dr Lye's report went on: "… I subsequently saw Mr Budniak for neuropsychological review on 10 April 2008, during his inpatient stay. A cerebral CT scan conducted during that admission was reported as showing moderate cerebral atrophy. Neuropsychological testing revealed evidence of cognitive decline as compared to his 2007 assessment, particularly in memory and verbal reasoning (see my 2008 neuropsychological report for more information). Therefore, based on retrospective review of my notes, it is my opinion that Mr Budniak's cognitive profile was not consistent with dementia in 2007, however the observed decline on assessment in 2008 and the more widespread nature of his deficits were likely to suggest an underlying neurodegenerative process."
During cross-examination, Dr Lye referred to some documents, a copy of which had not formed part of Ex. 3, which documents she produced, for the first time, to the court. Counsel were permitted to inspect these documents and, subsequently, there was cross-examination on some of them. Later, the documents to which senior counsel for the Defendants referred, and one document to which counsel for the NSW T & G referred in re-examination, were tendered: Ex. S.
I summarise Dr Lye's evidence in cross-examination as follows: (a) She thought that Tomasz had attended with the deceased on the first day of the interview that she conducted with the deceased in May 2007. On each occasion that she saw the deceased, a Polish interpreter had been present. (b) She confirmed her description of the deceased as "a pleasant man". (c) The deceased told her that his memory had declined over the previous 18 months; that he became confused with the management of his financial matters, which he thought had started in about 2001; and that he had problems with the Australian Taxation Office. He provided value estimates of his house and other assets which were verified by his son. He could not give Dr Lye any idea of the value of his shares without referring to the paperwork that would give him the precise value, and he would not go beyond that. (d) The deceased did not tell her that he had met with representatives of the Public Trustee or that he had given any instructions to a Public Trustee representative to make a will. Dr Lye confirmed that she specifically asked the deceased whether he had a will and he replied that he did not. (e) It was the deceased who had raised the issue of an executor. He knew the basic nature of a will, and the purpose of such a document. (In this regard, she said that she could infer from what she had written that there was more elaboration on his part about a will that made her believe that he understood the general nature and purpose of a will. However, she could not be certain from her notes.) (f) The deceased was unable to comprehend the concept of a Power of Attorney and confused the role of an executor and an Attorney. Dr Lye confirmed that she had strongly recommended the appointment of an Attorney for the deceased as she felt that he needed assistance with the resolution of some of his financial matters. (g) The deceased was able to tell Dr Lye that he intended to leave most of his property to Tomasz. She had noted that he was able to discuss natural beneficiaries of his will, but she did not know the specific details. He was able to tell her that there was conflict within the family, and he said that he was estranged from some of his children because of an issue that dated back to a dispute relating to some other property. (h) She was told, perhaps by Tomasz, that the deceased was overwhelmed with his responsibilities, which included the ATO dispute, as well as managing his shares and paying his bills. (i) In 2007, she found some evidence of cognitive impairment, specifically in two areas of cognition, but the overall impression was not of significant cognitive impairment. The first of the two major deficits she documented, was mental rigidity, which is a reduced capacity for flexible thought, or an inability to shift freely from one idea to the next. That is a function mediated by the frontal part of the brain. The second major deficit was reduced capacity for information processing, which was evidenced by difficulties with higher level attention and those abilities are also affected by the integrity of the frontal lobes. (j) By 2008, there was more evidence of cognitive impairment in a number of additional domains of functioning.
In answers to questions from the Bench, Dr Lye gave the following evidence: "Q. You mention several times in answer to questions from Mr Ellison that there were some signs of impairment in 2007, and you specified two specific areas of cognition. A. Yes. Q. Could you just remind me what the two areas were, please? A. Yes. So one was a measure of his attention, and I have variously referred to that at other times as 'information processing capacity', so that would be attention span, and also his working memory, which is his ability to hold information in his mind and manipulate it in some way, which is a complex aspect of attention. So those two things were assessed using one task; attention span and working memory, those two things. … Q. That's one, right. A. And the other thing was his - what I describe as his mental flexibility or his conceptual flexibility, which was whereby I gave him a task where he had to sort items into categories, and he had trouble switching from one category to another; so from that I inferred he had difficulties with flexible thinking or shifting loads of thought, which some might describe as inflexible thinking or rigidity. Q. Or concrete thinking, or is that something different? A. Concrete thinking is slightly different, and we would use another test to assess concreteness of thought. In fact, if it's relevant for me to comment, the task that would be most likely to yield evidence of concrete thinking, in 2007 he was in the above average range on that task, so no evidence of concrete reasoning at that time. However, that task plummeted in 2008. Q. Then you've said by 2008 there were additional domains of function which you observed in the deceased. Could you tell me what those additional domains of function were? A. The main two changes were a decline in his ability to encode or learn complex verbal material, in this case it was a story that was presented to him. That is one aspect of memory, encoding. However, his retention of that information that he did learn sometime later was intact. So it wasn't suggestive of forgetting. It was suggestive of problems with intake of new information as far as memory goes. The other thing that changed is what I was just referring to, which is his verbal reasoning, which is a task that we use to look at abstract thought, how concrete somebody's thinking processes are and how well they can reason through conceptual ideas. Q. Then some questions were asked of you regarding the values of his assets of property. I didn't know whether he gave you some values which Tom, as it were, corroborated, or whether he didn't? A. I believe he did from my notes and from my report. I believe he gave me value estimates of his house, his car and his bank account that were corroborated by his son. However, I believed from my notes that he did not give me value estimate of his shares when asked and that has response was that he needed to refer to the documents and was unable to give me any sort of estimate, and I wondered whether he was being a big rigid there and - in that he was unable to provide any sort of estimate; he just kept saying, 'I need all the documents to be able to tell you the value of my shares.' Q. One of the things you mentioned in regard to the question of power of attorney issue and the will issue was a lack of education. As I understood what you meant by that was whether someone had explained to him what a power of attorney was, how it would operate and so on and so forth. A. Correct. That was an ambiguous comment. I apologise for that. I don't mean his education as in his schooling; I mean his instruction and clarification surrounding the issue of power of attorney specifically. Q. You were taken to page 15 several times. What did you mean in the sentence, 'We were not aware of the fact that he had prepared his will earlier that month'? A. I meant that having received information from Margaret Pringle notifying me of this hearing, I learned when he had actually prepared his will. Q. By 'prepared', do you mean given instructions or-- A. Given instruction, sorry, yes. Not execute. 'Given instructions for.' And I only learned that, of course, when I heard of these proceedings. Q. But did I understand your evidence overall to reveal that one of the things that he appeared to repeat to you a number of times related to a will? A. Yes. Q. Going back to those two areas of cognition which you thought might reveal some impairment in 2007, is it possible to say what the level of that impairment is or is that not possible? A. I would say that they were only mild impairments. He was performing just on one of those tasks, he was just outside the normal, the average range, so he was in a lower average range, which is considered to represent a reduction, but not a significant reduction. The other task utilised whereby I commented on his conceptual flexibility, it doesn't actually have any quantitative interpretations, so, hence, I can't give a ranking according to the population, for example, to help give a measure of severity, but I would rank the two areas of difficulty in 2007 as suggestive of mild deficits if you asked for my professional opinion. Q. One of the things that he appears to have said to you a number of times related to failing memory, his failing memory. Does that reveal a level of insight into his own condition that is relevant? A. I think so. Q. How is it relevant? A. I think it shows that he can assess his ability to function in daily life that that he was able to provide some insights into what he felt were areas of difficulty for him, and that's in contrast to other patients that will often have significant difficulties and will say that they're having none at all."
I shall not repeat what else is in her notes which formed Ex. S, but these confirmed the matters included in her report and about which she gave evidence.
I also found Dr Lye to be a most impressive witness. She was an articulate, helpful, and reliable, witness, and I accept her evidence as truthful. However, like Dr Orr, whilst her opinion does not provide positive support for a conclusion that the deceased had testamentary capacity in either May, or in October 2007, it does not completely negate such a conclusion.
In my view, there was a large measure of agreement between Dr Orr and Dr Lye as to the deceased's medical condition during the period between late 2006 and early 2008.
Having heard and read the evidence of each of Dr Orr, Dr Lye and Nurse McDonnell, I am satisfied that each considered that the deceased, even with mild cognitive impairment, was capable, given help, of making some decisions for himself.
Dr Richard Adams-Dzierzba, who conducts a general medical practice called "Ashfield Family Practice", was the treating general practitioner of the deceased from 1987. He swore an affidavit, read by the Defendants, to which he annexed a copy of a report dated 21 October 2014. It was obvious that he was a busy general practitioner.
In the report, he states that the behaviour of the deceased (which he details and which I shall not repeat) "was consistent with a decline in mental capacity" and gives an opinion regarding testamentary capacity as follows: "Dealings with Mr Budniak Mr Budniak had been a patient of mine since 1987. He was attended to by my practice on twelve occasions in 2005, on fifteen occasions in 2006, and on ten occasions in 2007. He was last seen by me in my surgery in January 2010. I am also aware of his admission to Bankstown Hospital in February 2010 and next residing in a Bankstown area nursing home till passing away in May 2011. I always conversed with Mr Budniak in Polish. That was his and my first language and it was quite natural and comfortable for us to communicate in that language. Mr Budniak suffered from a baro trauma during the second World War which affected his lungs and his ear. I recall that Mr Budniak wore a hearing aid on his right ear but I cannot comment as to whether he had it on at all times. During 2005, I attended upon Mr Budniak at his home in Ashfield. The house was extremely cluttered with what appeared to be junk items. Those items were everywhere and I was concerned about him tripping over, falling and hurting himself, which could be quite dangerous given he was 83 at that time. Further, his house had been completely neglected and I was concerned as to his living conditions. This home visit triggered real concerns regarding the capacity of Mr Budniak to look after his own affairs. During 2006, Mr Budniak attended at the practice on a number of occasions and his behaviour was unusual in a number of ways. Firstly, he would turn up at the practice at odd times, including well before his appointment, when he did not have an appointment at all, and when the surgery was closed. On occasion, I found him to just be standing outside the surgery, including in the middle of summer in the heat. When I saw him, I would open the surgery and let him in even if it was outside surgery hours. It was likely that he was unable to remember the opening hours of my practice or the time and the day of his appointment. Secondly, he would attend at my practice, not entirely [to] discuss his medical condition, but specifically to discuss his problems with the Australian Taxation Office. He did this on multiple occasions and it was clear that his problems with the ATO were so paramount that he was unable to cope with them. I tried to understand what the problems were but he was so vague and poor at expressing those matters that I was not able to understand them even in basic terms. For instance, I was not able to understand from him whether his problems related to the fact that he did not pay the proper amount of tax or that he was being charged more by the ATO than he was obliged to pay or whether there was some other problem nor was I able to know just how much money was at stake or was in dispute. I queried Mr Budniak on a number of occasions as to whether he had seen his accountant, completed the relevant taxation returns or had sought professional assistance, but it appeared that he was attempting to attend to his problems himself. He was completely fixated on his dealings with the ATO and his failure to resolve his problems was causing him stress. I patiently explained to Mr Budniak that it was not my role to tell him what to do with his tax affairs and that I was his doctor, not his accountant, but he continued to discuss these matters with me. It appeared to me that he was preoccupied with these dealings and was almost paranoid about the ATO, whereas I was sure that his concerns could have been fixed by his accountant or by paying for being helped. Thirdly, he indicated to me that he was not getting on well with some of his children, but did not detail any particular incidents or reasons why that was the case. On reflection, and given he had not raised such issues before, it is my view that his issues with his children was likely influenced by his dementia and cognitive impairment. … From over 25 years in general practice, I have substantial experience in dealing with aged patients that face issues of dementing illness and cognitive impairment, including geriatric patients with Alzheimer's disease. In my experience, decline in mental capacity is a gradual process and it [is] usually the case that persons suffering from a decline will have been unwell for a number of years before a definitive statement and diagnosis of cognitive impairment is made. Also, patients can often appear to be well and alert on the surface but, over time, their condition becomes apparent. Mr Budniak's case was consistent with my experience with aged patients and I am of the opinion that he had been unwell for a number of years prior to the time when a formal diagnosis of dementia was made in April 2008. I am of the opinion that Mr Budniak may have been able to understand the concept of a Will in 2007, particularly if he had received a proper explanation and instruction regarding it. However, I do not believe he would have been able to appreciate and process more difficult matters regarding the contents of a Will, such as claims his children may have on his estate or properly identifying his assets and their worth (unless his assets were very basic in scope). In the Will Information Form filled out by the Public Trustee NSW, Mr Budniak indicates that he has no children or grandchildren that may make a claim if not adequately provided for in his Will, except for one son (Thomas) and one grandson (Ben). That is totally untrue, and he knew or should have known that he had a number of other children and grandchildren that his Will in October 2007 did not provide for. In relation to his assets, from my observation of Mr Budniak's attempts to articulate basic matters regarding what his problems were with the ATO, even in the Polish language and over the course of multiple visits to the practice, I do not believe he would have been able to properly recount his assets and identify their worth without assistance (unless they were very basic in scope). In summary, following careful examination of his medical record including content of his visits, discharge letters from Hospital, correspondence from specialists, imaging of his brain showing frontal lobes atrophy in February 2007, recalling his grievances with ATO and many aspects of his inability to cope on his own over an extended period of time, I am of the opinion that Stanislaw Budniak did not have testamentary capacity at the time of making his Will in 2007."
Regrettably, I did not find all of Dr Adams-Dzierzba's evidence to be convincing. By way of example, I mention the following matters: (a) He was not apparently aware that the senior registrar had administered the MMSE test on the deceased, who had scored 27 out of 30. He, himself, does not appear to have conducted a formal assessment of the deceased's cognitive capacity at any time. Nor does he appear to have recorded anything directed to assessing the deceased's mental health. (b) In his report, he identified the documents that he had available to him when he prepared the report annexed to his affidavit. He had also produced, in answer to a subpoena, certain documents (a copy of which were tendered as Ex. G). The documents produced revealed there were five visits by the deceased to the practice during 2007 on which Dr Adams-Dzierzba saw the deceased on three occasions; two visits in 2008; there were some visits in 2009. However, he gave oral evidence that he had relied upon information, provided by his secretary, who had contacted Medicare to retrieve information about the number of visits that the deceased made to his surgery. This information had not been stated in his report, or in his affidavit, and no document was produced being a copy of the note made by the secretary. (c) He wrote in his report that he was concerned about the deceased looking after his own affairs as early as 2006. As stated, he did not administer, personally, a MMSE, or refer the deceased to ACAT to be formally assessed. He had, in fact, written a Certificate in April 2006 (Ex. H) about the deceased, but he did not identify any concerns in that Certificate about the deceased's ability to look after his own affairs. (The senior registrar of the practice had written to ACAT, but it did not appear that Dr Adams-Dzierzba was aware of that correspondence. The letter, dated 5 December 2006, addressed to ACAT, Concord Hospital, described the deceased as having "difficult relationships with his family and [having] little recent contact" and "[being] preoccupied with dealings with the ATO regarding due payments" which has been "causing him considerable stress". The report also identifies an MMSE (Mini-mental state examination) score of 27/30. (d) He was also aware, by the end of 2006, that a nurse from ACAT was attending upon the deceased to co-ordinate between the deceased and himself, as well as the deceased and the hospital services that could become available to the deceased. He could not explain why he had not told Nurse McDonnell, in 2006 and 2007, of his concerns, regarding the deceased's ability to manage his affairs. He explained that he was satisfied with the process taking place when the deceased was referred to Concord Hospital (T192.32). (e) Senior Counsel for NSW T & G also referred the Court to a letter in Dr Adams-Dzierzba's affidavit, from Dr Steiner to ACAT, in relation to these concerns, of which Dr Adams-Dzierzba was aware at the time the letter was written. (f) Dr Adams-Dzierzba described some of the deceased's behaviour which he stated had occurred in 2006, including the occasion when he found the deceased standing in the front yard of his surgery. Yet, part of Ex. G was a note of an attendance, in December 2009, which stated: "confused. [He] was standing in front of my door today. I was not working today, just came for emergency visit". After some prevarication in cross-examination, suggesting to him that his report, on this aspect was incorrect as to when the incident had occurred, Dr Adams-Dzierzba was only prepared to say "It could appear that way": T177.08-T179.20. (g) He had identified the documents referred to in the letter from the Defendants' solicitor, the documents, that formed Ex. G, a note of his secretary's contact with Medicare, and the radiologist's report, as the only documents he had available at the time he prepared his report a copy of which was annexed to his affidavit. He did not have any paper files of his medical practice available at that time. He had a recollection of the deceased as well, but what he recollected was not identified in any documents. He could not explain why he had written that the documents he had "carefully examined" included the discharge letters from the hospital and correspondence from specialists, none of which documents were then available to him. (I do not accept the submission that he "recollected" these documents. The tenor of his report suggested that he had actually examined them. In any event, taking the submission at its highest, his evidence about the deceased's mental capacity would have been founded, at least in part, on impressions said to have been recalled some years after the documents were prepared.)
In my view, the evidence of Dr Orr, Dr Lye and Nurse McDonnell, where it conflicts with the evidence of Dr Adams-Dzierzba, concerning the medical condition, and mental state, of the deceased in the period between about September 2006 until about April 2008, is to be preferred.
None of the doctors, or Nurse McDonnell, was asked any questions about what could be drawn from the scores of the deceased on the MMSE test in relation to assessing testamentary capacity. Experience, however, dictates that MMSE scores do provide some guidance in the assessment, although the test does not cover all of the matters that must be considered in assessing capacity, and cannot generally be used, on its own, for that purpose. As is well-known, the MMSE is not designed to test testamentary capacity, but enables an assessment of global cognitive function by reference to seven different categories, namely orientation to time and place, language, attention, calculation, recall and visuo-spatial ability. None of those things directly enables an assessment of frontal, or executive, brain function, being the higher function for making decisions. But the scores achieved may provide some guide, a low score being likely to raise questions.
There is evidence about these higher functions to which I have referred. That evidence does not assist the case advanced by the NSW T & G.

The Evidence of the Deceased's Children Regarding Capacity and Knowledge and Approval

Unsurprisingly, the deceased's family members gave some sharply conflicting evidence about the deceased and his behaviour. I have endeavoured to make an objective evaluation of the allegations and to remember such general factors as inherent probability or improbability, and whether the version given is supported, or contradicted, by other objective evidence which is not disputed.
I have also borne in mind the fact that witnesses were giving evidence of events that occurred many years ago and also the possibility that the credibility of some of these witnesses may be undermined by his, or her, pecuniary interest in the outcome of the proceedings.
I have also remembered that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation": Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, per Keane JA (as his Honour then was), at [34], cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226 at [56].
The NSW T & G relied upon an affidavit sworn 6 November 2013 of Tomasz and an affidavit sworn 4 November 2013 of Nathalie. There was no dispute that each had the most contact with the deceased after about 2003. It is clear from the evidence that this was so, particularly because they lived in the Wife's property until about September 2005. Thereafter, each of them continued to play a significant role in his life as demonstrated by an association with Nurse McDonnell, Dr Orr and Dr Lye. Overall, I am satisfied that they lived near to, and closely interacted with, the deceased, and that he and she had the best opportunity to observe him during the years 2006 to 2008.
Each was cross-examined by senior counsel for the Defendants. I am satisfied that each did his, and her, best, respectively, to tell the truth. I accept the evidence given.
Tomasz provided details of the family relationships and background facts, some of which have been included earlier in these reasons and about which there was no apparent issue.
I specifically accept the following evidence given by Tomasz in his affidavit: (a) He described the deceased as "very stubborn", a description used by a number of the children. (b) The subdivision of the Wife's property, to which reference has been made, was undertaken to create a right of carriageway to enable Tomasz to utilise a garage to house his cars and motor bikes. (c) Robert informed Tomasz of the contents of the 1994 document but did not show it to him. He also told Tomasz that the deceased was angry that he had read the document whilst the deceased was still alive. (d) In 1998, Tomasz asked the deceased whether he would sell the investment property to him. Eliza prepared a document (a copy of which is annexed to Tomasz's affidavit) stating the purchase price to be $260,000 "at 13/12/98" and noting that the proceeds of sale were to be divided equally between Genowefa and the deceased. However, the sale did not actually proceed until after Genowefa's death. (In fact, renovations to the house on the investment property did not commence until after January 2003, and it continued in 2004 and 2005.) (e) Nathalie and the deceased had a good relationship. She spoke, and understood, the Polish language, and she understood Polish culture. They had much in common. (f) Following Benjamin's birth in 2002, the deceased would go over to the Wife's property (where Tomasz and his family were then living) to see and play with Benjamin. In July 2003, the deceased gave Benjamin $100, a gift described as "not typical" as the deceased did not often give presents. (In May 2005, at the christening of Amelia, the deceased attended but did not give her a present.) (g) In 2006, the deceased told Tomasz that he had a $12,000 tax bill, a bill that he said he disputed. He asked for Tomasz's assistance. (Tomasz explains the circumstances to which reference has been made concerning the requirement to complete quarterly BAS documents and to pay capital gains tax on the sale of shares.) (h) In February 2007, when the deceased reached 85 years of age, it was necessary for him to have a compulsory driving test in order to retain his licence, which test he failed. Tomasz attended, with the deceased, at two different Motor Registries, at the last of which the deceased's driver's licence was cancelled. (i) Subsequently, where possible, Nathalie and Tomasz would drive the deceased, as would a female friend of the deceased. (j) In June 2007, Tomasz and his family went to Poland and France on holiday. The deceased paid for their aeroplane tickets. Whilst they were away, the deceased and Tomasz would speak by telephone. The deceased asked about the children, referring to Benjamin as "Spadkobierica", which means "the heir". (He continued to refer to Benjamin in this way, "on many occasions" after their return to Australia.) (k) In August 2007, Tomasz and Nathalie invited the deceased to the birthday party of their son, Max. The deceased declined the invitation saying "I wouldn't feel comfortable with your brothers, and sisters, there as well, given the situation with [the Wife's property]". (l) Tomasz never had a direct conversation with the deceased about a Will or whether he had one. (m) In 2009, Tomasz received many calls relating to the deceased. He said that by then, "my father's condition was deteriorating rapidly and he was becoming confused. I also noticed my father was drinking much more." (n) In 2010, the deceased was transferred to Bupa Nursing Home. By this stage, he "was very confused and he had little recollection of people and places". (o) The deceased's house was not well-maintained. It was untidy and had a lot of paperwork around.
Tomasz was cross-examined. He gave the following evidence, which I also accept: (a) He agreed that his two affidavits (the other one was filed in relation to the family provision proceedings) "contain the truth, the whole truth, and nothing but the truth". (b) He had access to the Ashfield property following the deceased going to a nursing home in 2010 as well as after the death of the deceased. (c) He denied that the current value attributed to the Ashfield property by the parties was accurate, stating that it, as well as the Wife's property, was each affected by a drainage easement. He thought that the easement would affect the value and he was not sure whether it had been taken into account in the valuation. In addition, he stated that the Wife's property was now within a flood zone, which would also affect its value. He did, however, agree that the value of the Wife's property was greater than the value of the Ashfield property. (d) He disagreed that the current value of the Wife's property was between $1.65 million and $1.7 million (Ex. 3/150). (e) Tomasz's evidence regarding finding the 1994 document has been referred to earlier. (f) Tomasz did not try to explain to the deceased that if Genowefa's estate was to be administered in accordance with her Will, then, regardless of what was in that estate, he and his four siblings would share that estate equally. (g) Tomasz believed that, at some time between February and June 2007, he had told the deceased that he was going to purchase the Wife's property. He told the deceased only after his siblings had agreed to the purchase and prior to settlement. He did not remember telling the deceased that he would receive, or that he did receive, the equivalent of an equal share, with his siblings, of the net proceeds of sale. (h) Tomasz never engaged the deceased about his role as one of five beneficiaries of Genowefa's estate. Nor did he suggest to the deceased that Robert and Eliza were only doing their jobs as executors in order to finalise Genowefa's estate. He did not like talking to the deceased about Genowefa. (i) Tomasz thought that he had told the deceased that he had become the owner of the Wife's property after the sale was completed. (j) Tomasz says that the deceased "did not really react… too much" to the information given to him about the purchase of the Wife's property. The deceased did not express outrage at the information, or respond by stating that he had an interest in the Wife's property. (k) Tomasz knew that one of the reasons for Nurse McDonnell's involvement with the deceased was just "to check on [the deceased's] domestic environment; his house, his health, his safety, that sort of thing". He knew that when the deceased attended doctors at Concord Hospital it was for assessment. (l) In September 2006, Tomasz told Nurse McDonnell that he had tried to explain taxation issues to the deceased but that the deceased had difficulty understanding what he was being told. He also may have told her that the deceased was incapable of progressing his dispute with the ATO. (m) The conversations with the deceased about which Tomasz gave evidence, had been conducted, mainly, in the Polish language. (n) Tomasz told the members of the Guardianship Tribunal, in September 2008, that the deceased was concerned to retain his assets so that they could be passed onto his children. (In answer to questions from the Bench about this topic, Tomasz said that his source of knowledge of the deceased's intentions was conversations that he had with the deceased. He was unable to state the precise dates of such conversations other than to say "I wouldn't say in the 12 months before… I would say a number of years prior to that".
I specifically accept the following evidence, which I consider especially relevant, given by Nathalie, in her affidavit: (a) From August 2002, Nathalie had kept a yearly calendar on the kitchen wall on which she would write milestone events of the children and note family appointments. From about 2007, she would note the deceased's appointments also so that she could remind the deceased of those appointments. Later, in 2009, she would add events involving the deceased when his behaviour became more erratic. (b) She acknowledged that Joanna would "pop in to see" the deceased. She knew, at some stage, that Joanna obtained quotes to repair the roof on the Ashfield property, but that the deceased did not accept any of those quotes. (c) If Nathalie would cook Polish food, she would give some to the deceased. (d) In 2003, Lech's children came to play with Nathalie's and Tomasz's children. The deceased watched, and afterwards asked Nathalie who those children were. (e) In 2003, Nathalie had a conversation with Fiona, Robert's wife. She told Fiona that the deceased "thinks the world revolves around Ben" and "the way [the deceased] is talking about Ben I wouldn't be surprised if he left everything to him". When Fiona responded "What about the other grandchildren", Nathalie said "The rest of the grandchildren do not matter to [the deceased] because he doesn't know them." (f) In August 2004, the deceased attended Zara's christening. (g) On another occasion, when she and the deceased were talking about the Ashfield property and the Wife's property, he told Nathalie "I won't split things up. I'm not going to distribute my wealth like leaves on a branch." (h) In August 2005, Nathalie started working part-time. If she was at work, and Tomasz was late coming home from work, the deceased would look after Benjamin and Amelia until Tomasz arrived home. (i) In 2006, the deceased sought Nathalie's assistance with his tax but would not give her the necessary paperwork. (j) Nathalie says that she had the following conversation with the deceased in February/March 2007: "… I said to Tadeusz, 'Tom, and I, are going to buy number ten from his brothers and sisters', Tadeusz said, 'You can't buy it, I've a Caveat on the house', I replied, 'The Caveat has been cancelled as you didn't contest it', He became quite angry, threw his cane on the driveway, and said 'They have no right to do that because I'm leaving number ten to Tom', I said, 'it's not yours to leave to them because Genia left it to the children', he replied, 'I'm going to call a lawyer to see about this. It was in her name but we both bought it to save on tax'." (k) In August 2007, the deceased and Nathalie had the following conversation: "… [the deceased] said, 'Can you find me a Solicitor to contest the sale of number ten?' I rang Shirley, who did the conveyancing for us, and she gave us a reference to a Solicitor. I gave [the deceased] these contact details and then we talked about the rest of his children and if they were financially okay, he said:- 'Robert, that 'mummy's boy', only has girls. My name will not be carried on by his children and not be counted a beneficiary' 'Lech, doesn't have anything to do with me so he doesn't count.' 'Eliza has James to take care of her.' 'Joasia (Joanna) has Andrew. The girls are their husband's responsibility.'"
There is much other evidence, particularly about events in 2008, 2009 and 2010 in Nathalie's affidavit which it is not necessary to repeat. It demonstrates that, over these years, the deceased's condition progressively deteriorated. Where her evidence about the condition of the deceased conflicts with the evidence of the Defendants, I accept her evidence because, it seems to me, it accords more with the objective evidence given by Nurse McDonnell, Dr Orr and Dr Lye as to the likely progress of the deceased's medical condition.
Nathalie denied having told Robert, in 2007, that the deceased was lost, or confused, about once a week. She said that she did not find the deceased to be so, and she says that there are no notations, on her 2007 wall calendar, to suggest that he was. Also, she refers to the family's trip to Europe in June 2007.
Nathalie was cross-examined. She gave the following evidence, which I accept: (a) In 2006 and 2007, there were occasions when the deceased would be invited to family functions and he would not attend. (b) In April 2007, she told Nurse McDonnell that the deceased was deteriorating, but that he would not allow her to help him. (c) She acknowledged that there was some "erratic" behaviour of the deceased before 2009, but she could not recall any specific incident before 2009. (d) The entry on the wall calendar in November 2009 stated: "At the club. Confused. Andrew took him home at 2.30. Came back by 4pm to the club. Tadeusz at the club, confused. Taken home by Andrew. Came back." (e) She had written the entry on Sunday 21 November 2009. (It was written twice due to a problem with the pen, although she could not explain why she had written much of it twice.) (f) There were a number of other entries relating to telephone calls from the police referring to the deceased. (Apparently, she was told that, on occasions, the deceased would attend the Police Station and state that he was alive and provide his address.) (g) In relation to a conversation with Fiona set out above, she maintained that it had occurred and that she could remember it. It is noteworthy that the conversation is consistent with Tomasz's evidence of how the deceased referred to Benjamin. (h) She maintained that in February, or March, 2007, she had a conversation with the deceased about the purchase of the Wife's property. She added that she told the deceased "If you've got any issues you can take it up with them… It's gone", to which he responded: "We'll see about that." (i) They may have had a similar conversation after completion of the purchase of the Wife's property. Even though the deceased was told about the purchase by Tomasz, he "was still going on about having some right to [the Wife's property]".
(I have identified the matters referred to above as being "specifically accepted" because some of those are the subject of dispute with one, or other, of the Defendants, or because I consider that the evidence provides a more balanced picture of the deceased's condition. I found each of Tomasz and Nathalie to be a credible witness.)
I shall not repeat what each is reported as having told the Guardianship Tribunal in 2008.
I regret to say that I found some of the Defendants endeavouring to paint a picture of the deceased suffering significant cognitive impairment much earlier than the medical, and other, evidence suggests. This, in my view, affects some of the evidence that he and she gave.
Robert swore a number of affidavits. He acknowledged it had "been difficult to detail, with precision, the time and place when certain events and discussions took place but I have used my best endeavours to put the events and discussions in chronological order… The dates are approximate". I am satisfied that some of the dates are incorrect as they do not accord with other objective evidence to which I have referred.
I accept the following evidence given by Robert in his affidavits: (a) In 1999, the deceased did ask Robert about his family and his siblings and Robert did mention that Lech had a family and a son, Daniel, with another child expected. In February 2000, the deceased asked Robert whether Lech and his wife had their second child. (b) The deceased did ask a number of his children to pool some of their resources to develop properties together and that he said "… you always make money from property and we should all go into development together" and that he repeated this suggestion in February 2002. (c) The deceased did inform Robert about an advertisement that he had read in the Sydney Morning Herald relating to "a shortage of qualified engineers and that the University of New South Wales [was] offering a scholarship for a Masters in Engineering". (d) The deceased did forget who Robert's wife was in August 2004. (e) In October 2005, Robert did raise the issue about the Wife's property. It was following this conversation that the email was sent by Robert to his siblings to which reference has been made. (f) In 2005, 2006, and even in May 2007, the deceased did continue to maintain that he had an interest in the Wife's property. In 2005 and 2006, the deceased did tell Robert that he did not want to take any steps in regard to it. (g) The deceased did complain, on different occasions, about what he regarded as the wrongful conduct of Genowefa, but that Robert, and the other children, deflected the conversation when he did so. (h) From 2007, Robert's contact with the deceased lessened, with the result that he was not able to observe the deceased. Prior to Genowefa's death, Robert's contact with the deceased was not particularly regular. (i) In September 2008, Robert was informed, by Tomasz, of the hearing at the Guardianship Tribunal; that there was likely to be a finding that the deceased was incapable of managing his affairs; and that it was possible that Tomasz and Nathalie might be appointed to manage his financial affairs. Subsequently, Robert was informed, by Tomasz, of Tomasz's appointment as financial manager of the deceased. (j) In June 2011, Tomasz informed Robert that he had found the 1994 document and that a copy would be provided to him. (k) Conversations between Robert and the deceased were predominantly in Polish. (l) There may have been occasions when the deceased gave a gift to one, or other, of Robert's children (e.g. in 1990), but it is not suggested that any gifts were given to any of them following the birth of Benjamin.
I do not accept the following evidence given by Robert because it is, generally, inconsistent with the medical evidence to which I have referred. Some of it is inconsistent with what Robert said in answers to questions and because, overall, I prefer the evidence of Tomasz and Nathalie, each of whom I consider gave frank evidence about what he and she observed about the deceased. (a) In 1998, the deceased complained to Robert that he seemed "to forget things more often than I used to, I am just able to manage…" (b) In 1998 or 1999, the deceased had forgotten that Robert was no longer working as an engineer and that he was working in marketing. (c) In February 2000, that the deceased was acting "strange". (I attribute the deceased wanting to use the electricity from the Wife's property via an extension lead, to his parsimonious nature and since Tomasz had permitted him to do so. The deceased's behaviour, whilst eccentric, does not seem odd when other aspects of his character are considered.) (d) In 2001, the deceased forgot who Joanna was. (There appears to be little doubt that the deceased was prepared to assist Joanna in 2003 and 2004 by providing her with a loan of a significant amount (as to which see later)). (e) In August 2006, the deceased did not know who Robert was when they had a telephone conversation or that during that year that it was necessary to prompt the deceased to remind him who Robert was. (f) Whilst I accept that the deceased had some difficulty managing his taxation affairs, I do not accept that these difficulties began in 2003. It is to be remembered that he had been able to instruct accountants until the financial year ending 30 June 2005 to lodge his taxation returns on his behalf. It was following the filing of that income tax return that the correspondence from the ATO was received. The deceased sought the assistance of others to explain to him the meaning of the correspondence form the ATO.
Robert was cross-examined. I have earlier set out some of his evidence given by him. In cross-examination, he described the deceased as "intransigent". As I have earlier noted, he confirmed that the deceased "could read English well" and had done so since 1950. He also confirmed that he had appreciated that there was a risk in the deceased not making provision as he had threatened and had decided to take the risk. He identified the words "without his knowledge" as being relevant, which suggests that by serving the lapsing notice, the necessary "knowledge" would be provided.
Fiona, Robert's wife, swore two affidavits that were read in the Probate proceedings. She, too, gave evidence about meeting the deceased in 2004, and his failing to recognise her. She denied having the conversation about which Nathalie gave evidence. However, as I have earlier written, I accept Nathalie's evidence.
I shall refer to some of the evidence given by Joanna later in these reasons. For reasons there identified, I did not find her to be a very reliable witness. As stated earlier, she, too, identified the words "without his knowledge" in the deceased's threat made to Robert, as being relevant. As stated above, that suggests that by serving the lapsing notice, the necessary "knowledge" would be provided to the deceased. This is inconsistent with her evidence about the deceased's mental state at that time.
Joanna also said that she did not reflect on the deceased's threat thereafter, bearing in mind his conduct towards her and did not even remember that it had been made until she read the annexure to Tomasz's affidavit in which the email sent by Robert referring to the threat was annexed.
Joanna gives evidence of an event in about August 2001, when the deceased did not recognise her. She later said that she "was shocked that my father did not recognise me when we initially met and was concerned at how forgetful he seemed. My impression was that he was becoming senile."
I do not accept this evidence as to the date of the event because it is inconsistent with much of the other evidence. If the evidence was included to demonstrate that the deceased was losing capacity at that time, it is inconsistent with the evidence, to which I shall refer, about moneys advanced by the deceased to Joanna and her husband in 2003 and 2004.
There are other parts of Joanna's evidence which I do not accept relating to events in 2006 and 2007 (in respect of one aspect of which I shall deal with in more detail later). I find the evidence inconsistent with the medical, and other, evidence concerning the deceased.
Andrew gave evidence and was cross-examined. I later refer to his evidence. For reasons given, I do not accept Andrew's evidence about the event that he says occurred in November 2007. Otherwise, he did not give any evidence about his observations of the deceased's conduct going to his mental state.
Lech did not give any evidence on this topic. He had extremely limited contact with the deceased for about 30 years before the deceased's death. His wife, Sharron, gave evidence but did not say anything about her observations of the deceased's conduct going to his mental state.
Eliza gave evidence also. She states that "in the period up to and after September 2006, I regularly met and spoke to my father at family functions and Polish events". In cross-examination, she said that she would see him at the Polish Club and at the shopping centre. In re-examination, when asked about the nature of their contact, she said that if she "ran into him, I'd just say, "Hello, how are you? What's new?" Just casual conversation".
Despite what she had said in her affidavit, Eliza's evidence about the conduct of the deceased was limited to two events in 2007, neither of which directly involved him, but which involved her conversations with others about him. Nathalie denies one of the conversations which is said to have occurred, a denial I accept.
When cross-examined about the event in June 2007, Eliza admitted that following the alleged conversation with Nathalie, she did not go to visit the deceased. She could not recall whether she was "not concerned enough to go and see" the deceased in June of 2007 following the alleged conversation and when she saw him, subsequently, she did not ask him about his condition.
In relation to the other conversation, also with Nathalie, which involved her being contacted by someone from the office of Dr Adams-Dzierba, there is simply no evidence supporting what is alleged to have been said regarding the deceased, in the records produced by Dr Adams-Dzierba and there is nothing in Nathalie's 2007 wall-calendar that was produced suggesting that such an event occurred. I do not accept that any such conversation with Nathalie occurred in 2007.
Eliza admitted that after the deceased was admitted to the home in 2009, she ceased to visit him because she "didn't particularly wish to go to a nursing home".
I can only conclude, if Eliza's evidence about regularly meeting and speaking with the deceased, is true, that she did not observe any conduct which caused her to question his capacity. I tend to think that her statement about her contact with the deceased prior to 2009 was exaggerated.
Eliza's husband, James, swore an affidavit that was read. He does not really refer to his observations of the deceased's mental state. The observations to which he refers, in my view, do not go to the issue of capacity.

The Relationship of Each of the Defendants and the Deceased

The evidence of the relationship of each of the Defendants and the deceased is set out in the affidavits filed in the family provision proceedings. It is clear to me that despite some of what is said in those affidavits, the relationship of each was neither particularly close nor particularly loving. It is hardly surprising, in my view, that the deceased told various people that he was not close to his children (other than Tomasz) and that he did not see a lot of them.
It is necessary to set out this evidence as it is relevant not only to the family provision proceedings but also to the Probate proceedings to the extent that the deceased referred to his relationship with his children to other people and considered that relationship in giving instructions for the 2007 Will.
It was Nathalie who prepared all of the deceased's clothes, washed everything for him, and packed his bags when the deceased was admitted to the Nursing home.
Tomasz gave the following evidence: "115 During 2008/2009, apart from Eliza one time offering to assist with the financial aspects of my father's estate, no-one offered to help with my father. My family all lived in Sydney, Robert in Ryde, Eliza in Ashfield, Lech in Illawong and Joasia in Croydon Park. 116 Robert, and Eliza, had limited contact with my father. Lech had no relationship with him and I do not recall Lech talking to my father for over thirty years. Joanna had contact with my father, particularly around 2002-2004, when her house was being built. After about 2006, I do not recall Joasia visiting our father or saying that she had visited him."
Tomasz wrote in the deceased's eulogy that the deceased "didn't always have a lot of time for us", further explaining that: "I suppose when I was younger and that he didn't get involved in a lot of my activities. When I would like to go to soccer and things like that, he would not take me to go to soccer. You know, he never played with us too much as a child."
The suggestion that the deceased had not spent very much time with his children during their youth had been acknowledged by the deceased himself.
Tomasz deposes to a conversation he had with Lech following the death of the deceased in which he said: "As I've grown older I've tried to understand why my relationship with dad was not as good as I would have liked. Of most sadness was the limited amount of time that he spent with me and the absence of us doing things together… Given that there were five of us, it was also difficult for him to share his time between us all…"
Robert gave evidence of seeing the deceased regularly whilst studying at the University of New South Wales, as the deceased was working there. The deterioration of the deceased's relationship with Genowefa affected Robert's relationship with the deceased, to the extent that the deceased did not attend Robert's wedding in 1983. Robert moved out of the family home the day after the wedding. Between 1983 and 1986, Robert wrote that he "did not make any specific attempts to see or engage with [the deceased]". When Robert did see the deceased by chance, they would exchange pleasantries. In 1987, Robert made an effort to re-engage his father and from 1990, he "kept in greater touch" with the deceased, speaking on the telephone around six times a year and visiting "more regularly".
From 1999, Robert "had quite a bit of contact" with the deceased however from 2003, it was more difficult to "gain access" to the deceased. From March 2007, the deceased did not attend any more family functions.
Robert confirmed, in his oral evidence, that from October 2007, he had "less contact" with the deceased. He could not recall how many times he saw him but stated that it was "more frequently than once a year; less than once a month". Robert visited the deceased in Bankstown Hospital on 17 May 2011.
From 1983, Joanna lived with her mother next door to the deceased. Joanna refers to her mother as being the "main caregiver". She visited the deceased about once a month between 1983 and 1999 and would see the deceased when leaving or coming home. The deceased would often attend the Polish Club. Until 2000, Joanna and the deceased continued to see each other at various events and visits to the deceased's home. From 2000 to 2009, Joanna and the deceased would speak over the telephone about twice per month and would visit each other about once per month. The deceased gifted Joanna three payments of $2,500 in around September 2003 to assist in paying workmen to build her house. In late 2009, the relationship between Joanna and the deceased "fell away". When the deceased was admitted to Bankstown hospital, Joanna visited every day until his death.
Joanna gave evidence that her relationship with the deceased was different to that of her siblings as she was younger, spoke better Polish and played an active part in the Polish community organisations. She maintained a "meaningful" relationship with the deceased throughout his life, despite the difficulties that arose.
Lech gave evidence of a poor relationship with the deceased from when he was a child. The deceased rarely took the family on outings, or drove Lech to activities, never bought Lech a birthday present and only ever bought him one Christmas present. Lech suggests that the deceased's behaviour was similar to all of his siblings, although this is denied by Tomasz who states that they were taken on family outings by the deceased and that he was driven to and from certain events and activities, although he admits that the deceased "did not seem to spend a lot of time with his children".
Lech also attended the University of New South Wales yet, unlike Robert, he was never driven to, or from, University, and the deceased did not attend his graduation. Lech moved out of the family home in 1983. If Lech saw the deceased whilst visiting Genowefa, or at the Polish club, their conversation would be limited to exchanging greetings.
From 2007, Lech "had little contact" with the deceased and did not visit the deceased in Bankstown hospital immediately prior to his death.
Eliza gave evidence that the deceased did not attend activities in which she participated as a child. From December 1983, when Eliza moved out of the family home with her mother and other siblings, she "did not actively seek out" the deceased. She "would say 'hello' and talk to him if [she] happened to see him outside the family home" and "always maintained a respectful and polite relationship" with the deceased.
Between 1984 and 1998, Eliza had contact with the deceased at some specific events; she indicates four such occasions in her affidavit. From 1999 until 2011, Eliza had more contact with the deceased as he attended more family functions. She identifies five such functions in her affidavit which the deceased attended. Between 2007 and 2009, Eliza would also see and speak to the deceased at the Polish Club. From mid-2009, Eliza had less contact with the deceased when he went into a nursing home, the reason being "[she] didn't particularly wish to go to a nursing home". She visited him every day from when he was admitted in Bankstown hospital until his death.
When reading the evidence, I was reminded of a comment by Chancellor Kent in Van Alst v Hunter (1821) 5 Johns. Ch. 148, which is as relevant to human nature today as when it was first expressed nearly 200 years ago: "It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected."

Two Additional Matters

There were two very specific aspects of evidence with which it is necessary to deal and which, in my view, affects the credit of the witnesses involved.
Tomasz gave the evidence about a conversation that he had with the deceased in which the deceased said he had loaned Joanna a large sum of money whilst she was rebuilding her house and that she had not repaid the money "which upsets me". The deceased went on to say that he knew he could take her to court but said he would not do so. The conversation concluded with the deceased saying: "It's a family matter and I'll deal with it accordingly."
In her affidavit in reply, filed in the Probate proceedings, Joanna said that the deceased "did not loan me a large sum of money". She did not refer to the receipt of any money from the deceased other than three amounts of $2,500, which amounts she said were gifts made to her by the deceased (to which I have earlier referred). The paragraph of her affidavit on this topic concluded with the assertion that the deceased "never once indicated to me he was upset with me over the issue of money in the years that followed, even during the often heated discussions we had during those years."
Joanna acknowledged that she and her husband, Andrew, had been building their house between 2003 and 2004. Counsel for the NSW T & G then showed Joanna two copy documents which were tendered as Ex. M. One was headed "Loan Schedule". It appears to be dated 25 October 2003. This document contained a table containing four columns. There were 11 lines. Under the column headed "Amount" were various amounts, totalling $142,500. Under the column headed "Date Received" were different dates between 11 September 2003 and 16 March 2004. Under the Column headed "Signed Budniak" was the signature (on each line) of the deceased. Under the Column headed "Signed Borysewicz" was the signature (on each line) of Joanna. (An obviously earlier version of Ex. M, containing only one line and identifying the amount of $20,000 became Ex. N.)
The second copy document was a Customer Receipt for $30,000 dated 9 February 2004 from St George Bank which Joanna acknowledged was in her name. (It appears to have been one of the amounts identified in the Loan Schedule.)
Another copy document, also headed "Loan Schedule", but in a slightly different format, was tendered as Ex. O. This document, also, contained different dates and amounts, but no signatures. The amounts shown in this table, totalled $150,000. Below the table appeared the following statement: "Andrew and Joanna Borysewicz agree to the above loan schedule from Stanislaw Budniak and agree to repay the loan within a period of one year, at an interest rate of 6% per annum".
Unsurprisingly, Joanna was cross-examined on this issue. I did not find her evidence on this topic at all convincing. None of the evidence that she gave, to which I shall refer appeared in any of her affidavits, or in the affidavits of her husband, Andrew.
Firstly, only in cross-examination did she acknowledge that she had created the original Loan Schedule on her computer; that her signatures appear on the Loan Schedule as do the deceased's; and that she had received all of the amounts referred to in Ex. M. Then, she maintained that "the money was in my possession but it was not a loan" (T238.13-T238.14 as amended). Despite the fact that she said that she was "holding" the amount received for the deceased, she admitted she had used the money to pay tradesmen.
Then, Joanna said (T238.33-T239.01 as amended): "It was in my possession and I suppose it could be considered a loan in - if we reflect on it now. He asked me if I could hold the money for him because he didn't want to have it exposed for taxation purposes. I was not comfortable with that. Because I was pleased he'd started to seek my help, because he said he needed my help, I wanted to oblige but I didn't trust him. I didn't trust that he would just give me money and not expect anything for it, though I also understand the situation that he was in. It was my suggestion to him that we establish it as a loan. I drew up this schedule on my computer. He didn't have a computer. I drew up this schedule and I said to him, 'You will sign all of the amounts that you give me.' He didn't want to, which seemed very out of character for him, to hand money over, but he was distressed with his tax and he wanted to offload his money, so he gave me these amounts. I said to him, 'I am going to give you this money back.' He didn't want me to. I paid it back to him later that year. I have similar schedules with him signing it but I paid it back, so, yes, you can consider it a loan now at this point in time, looking back, but I hadn't even thought about this, because the arrangement we had was that I was holding money for him and I no longer wanted to hold it and I gave it back to him the following year and that was it."
Later, she maintained "… in my mind it wasn't a loan. He asked me to hold some money for him. I did": T242.26-T242.27 (as amended).
I should mention that Andrew, who was cross-examined immediately after Joanna, contradicted the evidence of his wife. He acknowledged that Joanna and he had received "about $140,000" from the deceased. Without any prevarication, he stated that the money advanced by the deceased was a loan from him to them: T259.48-259.49 (as amended).
It follows that I am satisfied that the document prepared by Joanna as a Loan Schedule was exactly that, and that the money advanced to her by the deceased, as evidenced in the document, were advanced by way of loan.
In my view, Joanna deliberately tried to avoid disclosing the loan moneys for the reason that she well knew that if such evidence was given it would present a possible difficulty for her in relation to what the deceased had told Tomasz about having made a loan of a large amount to her.
When asked about how she had repaid the deceased, Joanna said that the whole amount ($142,500) had been repaid "in cash" by the end of 2004 or early 2005. She said that the source of the number of payments was an AMP bank account that had since been closed in 2008. She could not identify the amount of each payment or when each had been made.
In relation to Ex. O which identifies that Andrew and Joanna agreed to pay interest on the amount loaned, Joanna said that it had been created because "I didn't trust my father. I wanted it to be legitimate": T249.32 (as amended).
Joanna could not explain why there was a document in which a reference to interest, to be paid by her and her husband to the deceased, had been created. Her evidence was that she said to the deceased: "… If it's going to be a loan schedule, I will pay you for - I'm going to call it - I'm not going to call it this is the money my father's giving me so that he looks like he owes less money. We need to structure it properly and I will pay you 6%, which I think was the amount on the - on our loan at the time. That's not what he wanted, but that's what I wanted."
This evidence is also inconsistent with her evidence that the money advanced was not by way of loan.
Joanna also gave evidence that she thought that she had the document to which she had referred relating to the repayments at home. In re-examination, Joanna gave this evidence: "Q. Are all the moneys to which you're referring being moneys that your father passed to you in respect of his concerns with tax, are they dealt with in exhibit M? A. Without comparing the schedule I have at home with that schedule I could not say with one hundred per cent certainty but the totality sounds around right." [Emphasis added]
However, no such document, if it existed, was produced to the court and Joanna did not re-enter the witness box to give evidence about her search, overnight, for any such document. If it no longer existed, there was no explanation given of when, or in what circumstances, it had been destroyed or lost.
I should mention that Andrew said that the amount loaned had been re-paid, adding "My wife does all the books. She's the mathematician in the family. She runs the book side of things and I know that that amount was paid off to my father-in-law". He thought it had been repaid from the proceeds of sale of a home unit, but he could not be certain whether it had been repaid by cheque or in cash again repeating "you'd have to ask my wife in regards to that". He maintained that the financial side, in their household was not part of his responsibilities.
Senior counsel submitted that the court should not draw any inference by Joanna's failure to produce the document to which she had referred because her evidence was that she "could have" the document at home. Her evidence, more than once, however, including in re-examination, suggests that she clearly believed in its current existence.
Taken with the omission of the receipt from the deceased of any money other than the modest amounts that I have earlier identified in her affidavits, her denial that the money advanced was by way of loan (which loan Andrew acknowledged) and her failure to re-enter the witness box and inform the court of her searches, she has not satisfied me, despite her, and Andrew's, assertions to the contrary, that the amounts that had been loaned by the deceased have been repaid.
I also reach this conclusion upon the basis that had the moneys been repaid, there would have been no need to avoid disclosing the receipt of them in the affidavits that each had served. I find Joanna's evidence on the topic of moneys advanced to her and Andrew quite unreliable.
The second issue relates to the date on which the deceased attended the Polish Club and was taken home by Andrew. There were two witnesses whose affidavits were read by the NSW T & G, on the topic, but who were not cross-examined. It was said by counsel that "no Browne v Dunn point" was to be taken by the Defendants agreeing not to cross-examine. (There was a third witness but her evidence related to the fees paid in relation to the dance classes the subject of the dispute rather than to what occurred involving the deceased.)
Taking that concession into account, I am still left with the evidence of these two witnesses, each of whom I have not had an opportunity to hear being cross-examined. It would not necessarily be right to conclude that the absence of cross-examination entails the acceptance of that evidence, particularly since the evidence as to the date of the events has been contradicted by evidence of a number of witnesses relied upon by the Defendants who have been cross-examined.
Yet, it is to be noted that the two witnesses are not parties to the proceedings and have no pecuniary, or apparently, other, interest in them. Furthermore, each gave very specific evidence of the event and all agreed that it had occurred in November 2009 rather than in May 2007.
It is unnecessary to trawl through the evidence on this topic. I should mention that I did not gain the assistance that seemed to be placed by the Defendants on the information contained in Ex. 16 and Ex. 17 (the Police Credit Union Diary of Andrew for the year 2007 and 2009 respectively) each of which referred to the event at which the incident was said to have occurred. However, neither entry referred to the deceased being present.
In addition, the evidence of Joanna and Andrew on the circumstances in which the same wrong date came to be included in each of her, and his, affidavit was difficult to accept. The difficulty was enhanced when the court clarified with Andrew, that he had access to his 2007 diary, in which the event about which he was giving evidence occurred, at the time he prepared his affidavit in August 2013.
Furthermore, in explaining in that affidavit, the reasons why he had dated the event about which others had given evidence as May 2007 rather than November 2009, he had not disclosed any reference to having used his Police Credit Union Diary to refresh his memory about the date. He could not explain the reason for the omission: T264.26-T265.07 (as amended).
I should refer to Nathalie's evidence on the topic. She, too, says that the incident occurred in November 2009 and not May 2007. She made a notation on the calendar in the 2009 year.
There is an entry on Nathalie's wall calendar on 21 November 2009 relating to the deceased being "confused" whilst at the Club and Andrew taking him home at 2:30 p.m. and Andrew returning by 4:00 p.m. to the Club.
Having read all of the evidence on this topic, and to the extent that it is necessary to express a view, it is more likely that the events to which reference is made, occurred in November 2009, rather than May 2007. I do not accept Joanna's and Andrew's evidence on this topic, preferring the evidence of Nathalie and the two other witnesses who were not cross-examined.
My assessment of Joanna's and Andrew's evidence on this topic is that it was unreliable and that they set out the date of an event much earlier in time than when it had, in fact, occurred.

The Financial Resources of Each of the Defendants

There was a significant amount of cross-examination of each of the Defendants and of Tomasz about his, and her, financial resources and those of his, and her, spouse. The spouse of each Defendant was also cross-examined. It was clear that each had not fully, or accurately, disclosed the necessary information. However, following completion of the cross-examination, and as it appeared that the NSW T & G was reasonably satisfied that the relevant evidence had now been provided to the court, the legal representatives of the parties agreed to provide a complete schedule of those resources for each of the Defendants and his, or her, spouse taken from the affidavits as completed by the oral evidence.
Whilst I do not condone the failure of, or omission by, any applicant to provide to the court and the other party, a full, accurate and complete statement of his, or her, financial resources, it was not suggested, in this case, to any relevant witness, that the failure or omission to do so, was intentional with a view to misleading the court.
In this regard, it has been stated in many cases that it is the responsibility of any applicant for a family provision order, and to some extent, his, or her, legal representative, to ensure that the obligation of the applicant has been fully complied with prior to the hearing of the proceedings.
Because of the conclusion I have reached in the Probate proceedings, it is unnecessary to deal with the evidence of each since his and her financial and material circumstances goes only to his and her claim for a family provision order. (In this regard, there is no evidence about the deceased's knowledge of the financial and material circumstances of each of his children. In view of his relationship with each of them, it is unlikely that he would have had any information about that matter.)

The Law - the Probate Proceedings

Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.
Wills can be proved in two ways; being a grant in common form or a grant in solemn form. A grant, in either form, is a judicial act, and becomes an order of the court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394, at 398. In the case of a grant in common form, the grant is revocable. The grant, in this respect, is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the Will proved in solemn form: Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596, at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147, at [35].
Lindsay J, in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, at [65], has added: "The absence of the words 'in solemn form' is not necessarily indicative of a grant in common form: Mortimer v David; Estate Dawn Audrey Day, deceased [2005] NSWSC 1166 at [28]. A grant made, on notice to all interested persons, after hearing evidence bearing on the validity of a will, could aptly be described as a grant 'in solemn form' notwithstanding the absence of those words in the instrument of grant. The difference between common and solemn form grants is more than merely formulaic."
In order to obtain a grant of Probate in solemn form, the party propounding the relevant Will, is required to call at least one of the attesting witnesses to prove due execution: In re Munn; Hopkins v Warren [1943] SA St Rp 44; [1943] SASR 304; Oakes v Uzzell [1932] P 19; (1931) 100 LPJ 99. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185.
Section 3(1) of the Act defines "Will" as including "a codicil and any other testamentary disposition".
In the case of a grant in solemn form (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant), the grant of Probate is said to be irrevocable. Or, as was put in Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 by Campbell JA, at [7]: "The situation is rather that a grant in solemn form is binding on the parties to the probate suit in which it was granted, on anyone who has been cited to see the proceedings, and also on anyone of full capacity who has an interest and knows of the proceedings but chooses not to intervene: Osborne v Smith (1960) 105 CLR 153; Williams, Mortimer and Sunnucks at 270."
Lindsay J has comprehensively dealt with the distinctions, and provided an admirable historical analysis of the difference between common form and solemn form grants in Estate Kouvakas; Lucas v Konakas. It is not necessary to repeat the conclusions to which he came in that case.
Because testamentary capacity and knowledge and approval are distinct bases for the objection to a grant of probate, I shall deal with them separately. The task of this court is to determine which is the last valid Will of the deceased.

Testamentary Capacity

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory.
I repeat what Powell J (as his Honour then was) stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707: "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows:- 1. The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the Court is bound to pronounce against the document; 2. This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. The proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator; 5. The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. Where, what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. A testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. A testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature. 9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. Facts which may well cause suspicion to attach to document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; (c) where the testator executes the document as a marksman when he is not; 11. Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator, is as a general rule, conclusive evidence that he knew and approved of its contents; 12. The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow in which case His Lordship said:- 'It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.' 13. The test of what the law, in this context, at least, regards as 'a disease of the mind' or 'an insane delusion', was discussed by Sir J.P. Wilde in Smith v Tebbitt in which case his Lordship said:- 'It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and may therefore be called "delusive". But what I want to convey on this head is this; that the question of insanity and the question of "delusions" is really one and the same - that the only delusions which prove insanity are insane delusions - and that the broad enquiry into mental health or disease cannot, in all cases, be either narrowed or determined by any previous or substituted enquiry into the existence of what are called "delusions".' … 14. A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; sanity is to be presumed until the contrary is shown. 15. Facts which, if established, may will provide evidence to the contrary include: (a) the exclusion of persons naturally having a claim on the testator's bounty; (b) extreme age or sickness or alcoholism; 16. In relation to the former of these two matters, however, it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker, the following passage appears:- '… the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition though the justice or injustice might cast some light upon the question as to his capacity.' 17. However, while extreme age or grave illness will call for vigilant scrutiny by the Court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property." [Citations omitted]
In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 568-770, referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282, at 290-291, where Erskine J had delivered the judgment of the Court in the following terms: "… Their Lordships are of opinion, that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity."
In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at 289-290, Gleeson CJ (as his Honour then was) 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."
In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226, at [65]: "It would be a mistake to read the above passage as indicating that a will is to be admitted to be probate unless there is a doubt about the testator's (or testatrix's) capacity that is so substantial as to preclude a belief in that capacity. That would be to reverse the onus. What the High Court was emphasising in Worth v Clasohm was that applying the civil standard of proof, a court may be reasonably satisfied that a testator or a testatrix had testamentary capacity even though there is room for some doubt in relation to that question."
As the Court of Appeal confirmed in Tobin v Ezekiel, per Meagher JA (Basten and Campbell JJA agreeing) at [47]-[48]: "Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case... the relevant circumstances were described... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator... … prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995".
I should also refer to Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 570-572, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant: "… 5. A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. 6. The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the court varies with the circumstances 7. As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries… (b) the exclusion of persons naturally having a claim upon the testator… c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit… 8. Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof 9. To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property…"
The statement of principle in Banks v Goodfellow has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] EWCA Civ 449; [2006] WTLR 1059, at [82] and [66]. It has also been described as the "classical exposition": I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co), at [306]).
It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566: "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause - namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, 'the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.'" [Footnotes omitted]
In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."
I have also found the following passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75], useful to remember: "… Given that human nature is multi-dimensional and at times complicated, the law fully recognizes that a testator, like any ordinary human being, conducts himself according to his own personality, temperament, traits, idiosyncrasies or eccentricities and that his act is influenced by his affections, desires and prejudices. Thus, in determining testamentary capacity, the law does not call for a perfectly balanced mind freed from all influence of prejudice, passion and pride. Nor does the law say that a man is incapacitated from making a will if he is moved by capricious, frivolous, mean or even bad motives. 'Eccentricity, lack of justice, lack even of common sense in the dispositions is not of itself enough': John Buckenham v Dickinson & Ors [2000] WTLR 1083, per HH Judge Cooke (sitting as a High Court Judge) at p. 1090D. The testator may, for example, disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will, however much the course he has pursued is condemnable, so long as he has the requisite testamentary capacity. The court does not sit to correct injustices in that respect. As Sir John Hannen said in Boughton v Knight, supra, at p.66: 'Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions, that we cannot form, or even fancy that we can form, a just estimate of them.' Put in another way, the law does not require a testator to act fairly when he makes a will. The law is not concerned with an objective assessment if his testamentary disposition is fair, reasonable or not. The law is only concerned with whether he had the testamentary capacity to make the will."
In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263, said that to have capacity the testator must: "... [have] a mind... of sufficient memory and understanding to know generally the state of his property (I use the word generally, because you have no right to expect from a man... a specific and accurate knowledge of every atom of his property... [But] if a man has six children, and... thinks he has only five... you could hardly say he is in a proper state of mind to dispose of his property."
In Read v Carmody [1998] NSWCA 182, Powell JA, (with whom Meagher and Stein JJA agreed), wrote (at 4) that a testator or testatrix "is aware, at least in general terms, of the nature, and extent, and value, of the estate".
In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J noted at [49]: "In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectation of males in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be land or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing "the extent" of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate. What is required is the bringing of the principle to bear on existing circumstances in modern life."
In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained, at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.
The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, and by White J in D'Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333, at [95].
In Frizzo v Frizzo [2011] QCA 308, Muir JA (with whom McMurdo P and White JA agreed), at [53], stated: "A testator may not need to know the exact address or precise current value of land he owns or other matters of detail but it is necessary to show that the testator is able to differentiate between his assets to a sufficient degree to satisfy the court that he is substantially aware of what he 'does and doesn't own' and its general value. Kerr v Badran does not absolve a party propounding a will from proving that the testator knew the nature and extent of his assets."
In In The Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his "mind should be free to act in a natural, regular and ordinary manner". Dixon J cited these observations with approval in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283.
In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs, at [97]; Brown v Wade [2010] WASC 367, at [95]-[96].
A summary of the principles were set out by Gray J, after an extensive analysis of the authorities, in Wade v Frost [2014] SASC 162, at [37]: "The effect of these authorities is that, in cases such as the present, notwithstanding the presumption of testamentary capacity, once appraised of allegations or evidence of a lack of testamentary capacity, the court should carefully assess the evidence to affirmatively satisfy itself that the deceased was of sound mind when making his or her will. The deceased's testamentary capacity is a question of fact on which the court must ultimately come to its own conclusion on the evidence, though it may be assisted by expert evidence. Before making a finding that the deceased had testamentary capacity, the court should be satisfied that the deceased was aware of the significance of making a will, the assets comprising his or her estate - in general terms - and the persons who might expect to inherit under the will and the basis for their expectations. Further, the court should be satisfied that, at the time of making the will, the deceased's judgment in deciding how to dispose of his or her estate was not overborne, for example by a medical condition, age or the influence of another person."
Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the deceased's mental state did not influence the Will: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295. However, as Dixon CJ wrote in Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439; (1952) 26 ALJR 626, at 343: "… that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."
I also note that in Bool v Bool [1941] St R Qd 26, 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation."
However, whilst that may be a summary of the principle, I prefer the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks - Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13-30]: "A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside. The testator's feebleness of body or mind may be relevant to knowledge and approval." [Citations omitted]
In Bull v Fulton, at 341, Williams J noted: "A sound and disposing mind is one which is able to reflect upon the claims of the several persons who, by nature, or through other circumstances, may be supposed to have claims on the testator's bounty and the power of considering the several claims, and of determining in what proportions the property shall be divided between the claimants".
Yet, Sir James Hannen, over 140 years ago, in Boughton v Knight (1873) LR 3 P&D 64, at 66, wrote: "By the Law of England everyone is left free to choose the person upon whom he will bestow his property after death entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his Will, however much we may condemn the course he has pursued."
More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]: "[Counsel for the appellants] had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what [the testator] should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why [the testator] disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld it he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of [the testator] excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator's soundness of mind, and not to general questions of perceived morality."
Thus, whilst an explanation for a dramatic change in testamentary intention, such as the complete disinheritance of some of his children, may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.
Finally, the test of mental capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99, at 109.
As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time she, or he, gave instructions for the will, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see, Hardingham, Neave and Ford, at [308].
In Parker v Felgate (1883) 8 PD 171, a testatrix gave solicitors instructions for her will in July. She ceased to have testamentary capacity in late August. On 29th August, she executed the will drafted by her solicitors in accordance with her instructions. She died on 2nd September. The executors sought to propound that will. Their claim was opposed by the testatrix's next of kin on the grounds that the will was not duly executed, lack of testamentary capacity at the time of execution and want of knowledge and approval. The case was tried by Sir James Hannen P with a jury. In the course of his summing up Sir James directed the jury as to the applicable law. He said, at 173-174: "If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, 'I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out'… That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked, 'Do you wish to leave So-and-So so much,' or do you wish to do this (as the case might be), she would have been able to answer intelligently 'Yes' to each question? That would be another condition of mind. It would not be so strong as the first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, 'I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;' it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient."
See also, Vukotic v Vukotic [2013] VSC 718, at [19]; Le Bon v Lili [2013] VSC 431, at [20]-[23] and Veall v Veall [2014] VSC 38, at [34] in which the above principles are referred to with approval.
Thus, it would be necessary to establish that the Will, as executed, accords with the instructions given by the deceased at the earlier time and that the principle does not apply if there are material differences between the instructions given and the Will prepared, or where, as was submitted in this case, no instructions were given on clauses included in the Will that was executed.
In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2007 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.
A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.
As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr Willmott referred in this context to the three 'R's' adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other."
White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], when he wrote: "The question of testamentary capacity is not whether the deceased did bring to mind her property and those who might have claims upon her, and did evaluate the respective claims on her testamentary bounty, but whether she was able to do so (King v Hudson [2009] NSWSC 1013 at [51]). That question must be answered in the context of the particular will in question (Re Estate of Church [2012] NSWSC 1489 at [52]-[55] and cases there cited)."
Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66].
I should refer to Key v Key [2010] EWHC 408; [2010] 1 WLR 2020, at [98], in which it was said: "Finally, the issue as to testamentary capacity is, from first to last, for the decision of the court. It is not to be delegated to experts, however eminent, albeit that their knowledge, skill and experience may be an invaluable tool in the analysis, affording insights into the workings of the mind otherwise entirely beyond the grasp of laymen, including for that purpose, lawyers and in particular judges."
As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2), at [65]: "The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."
It was also aptly put in "Assessment of Testamentary Capacity and Vulnerability to Undue Influence" by Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh and Pamela R. Champine (2007) 164 The American Journal of Psychiatry, at 722: "Testamentary capacity is a construct rooted in both the legal and medical domains, thus inviting a collaborative approach to its definition and assessment. Challenges to testamentary capacity are made on a legal basis, and the judge remains the final arbiter. However, the evidence to support a challenge may be informed by the assessment of a medical expert."

Knowledge and Approval

In addition to showing that the deceased had testamentary capacity, the NSW T & G, as the propounder of the 2007 Will, must also show that the deceased knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton, at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945, at [45] per Lewison J.
Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. … Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."
The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin [1918] HCA 73; (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour said (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."
Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.
More recently, however, perhaps a single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380, at [22], is more appropriate: "Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix's knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs J in In Re Crerar (unreported) but see (1956) 106 LJ 684, 695, cited and followed by Latey J in In re Morris, dec'd [1971] P 62, 78 namely that the court should 'consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.'"
I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280, at [47]: "When we move on to knowledge and approval what we are looking for is actual knowledge and approval of the contents of the will. But it is important to bear in mind that it is knowledge and approval of the actual will that count: not knowledge and approval of other potential dispositions. Testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. That is why knowledge and approval can be found even in a case in which the testator lacks testamentary capacity at the date when the will is executed. The reason for the requirement is the need for evidence to rebut suspicious circumstances: Perrins v Holland [2010] EWCA Civ 840; [2011] Ch 270 at [25]. Normally proof of instructions and reading over the will will suffice: ibid at [25]. The correct approach for the trial judge is clearly set out in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380. It is a holistic exercise based on the evaluation of all the evidence both factual and expert."
In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, had observed: "The rule in Barry v Butlin, Fulton v Andrew, and Brown v Fisher is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." [Footnotes omitted]
Davey LJ, at 159-160 wrote: "It must not be supposed that the principle in Barry v Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it - that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed." [Footnotes omitted]
These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, Leona Johnson (Deceased) [2015] SASC 51, at [7].
When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec'd) [1950] 2 All ER 117, at 121.
A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600, at [2]-[9].
Even though it is not relied upon as a relevant matter, I should mention Paraskov v Paraskos [2002] WASC 109, in which case, Pullin J, at [50] observed: "Because the person cannot read the will, does not mean that it is invalid. The question is whether the deceased understood what the contents of the will were before it was signed. In some cases this will be established by reference to the instructions which were given before the will was signed; in others by the fact that the will was accurately translated into language the testator understood before it was signed; and in others it will be satisfied by proof that the contents of the will, although not translated, were explained to the testator in a way which accurately informed the testator what the will provided for. See In the Will of Steward (supra); In the Will of Clayton (1906) 8 GLR 516; Parker v Felgate (1883) 8 PD 171 at 173 per Hannen P; Perera v Perera [1901] AC 354; Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Battan Singh v Amirchand [1948] AC 161; and Re Flynn [1982] 1 WLR 310 at 320."

Section 8 of the Act

As the deceased died in 2011, these proceedings are governed by the Act, s 8, rather than the Probate and Administration Act 1898 (NSW), s 18. Section 8 applies to wills whether made before, on, or after 1 March 2008, if the deceased died on, or after, that date: Schedule 1, Clause 3(3) of the Act.
In view of the concession made by the NSW T & G, it is not necessary to repeat the relevant principles of law. I should, however, refer to section 8 of the Act which provides: "(1) This section applies to a document, or part of a document, that: (a) purports to state the testamentary intentions of a deceased person, and (b) has not been executed in accordance with this Part. (2) The document, or part of the document, forms: (a) the deceased person's will - if the Court is satisfied that the person intended it to form his or her will, or (b) an alteration to the deceased person's will - if the Court is satisfied that the person intended it to form an alteration to his or her will, or (c) a full or partial revocation of the deceased person's will - if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will. (3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to: (a) any evidence relating to the manner in which the document or part was executed, and (b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person. (4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2). (5) This section applies to a document whether it came into existence within or outside the State."
In this regard, however, there can be no doubt, and the parties agree, in the present case, that the 1994 document: (i) Is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them. (ii) Was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act. Execution "is the validation of a document by going through the formalities required by law for that purpose": Estate of Williams deceased (1984) 36 SASR 423, at 425. (iii) Purports to state the testamentary intentions of the deceased. (iv) Was intended by the deceased to form his Will.

Determination of the Probate Proceedings

In arriving at a conclusion, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141: "The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details."
The 2007 Will, so far as it related to the identified beneficiaries, is accepted as having been prepared in accordance with the instructions given by the deceased to Mr Kennedy in May 2007. There is no suggestion of the involvement of any interested party (for example, Tomasz or Nathalie) in organising the meeting with Mr Kennedy, or of participating, in any way, in the meeting. Despite Nathalie having been informed of the meeting, neither she, nor Tomasz, attended.
I am also satisfied that Mr Kennedy was an experienced Branch Manager within the NSW T & G. Where an experienced draftsman of a will states, upon facts that are set out, that he satisfied himself of the deceased's mental capacity, his conclusion about the deceased's capacity, noted on the Will Instruction Form, requires some evidence to contradict the conclusion.
In this regard, it is also to be noted that Nurse McDonnell was present whilst the instructions were being given to Mr Kennedy. She was clearly aware of the reasons for Mr Kennedy's presence, and whilst she did not participate in the discussions that took place, she did not express any concerns, at the time, or otherwise, about the deceased being able to give instructions regarding the contents of his Will.
Furthermore her evidence and the evidence of Mr Kennedy does not suggest that the deceased was not, oriented in time, place and person, or that he did not know with whom he was interacting or the reasons why. There is no suggestion that his speech was incoherent.
Nor was it put to Nurse McDonnell, in cross-examination, that there was a need for her to be concerned, or to express concern, that because of any medical condition of which she was aware, the deceased did not have capacity to give instructions to Mr Kennedy about the Will.
Nor was there any suggestion that Nurse McDonnell observed anything about the deceased's medical condition, when he gave instructions to Mr Kennedy. Importantly, she did not suggest that there was any confusion, or lack of understanding, evident in her communications with the deceased, or between the deceased and Mr Kennedy, on 8 May 2007, whilst she was present. There may have been some inability to understand the concept of an Attorney and some confusion about the role of an Attorney as compared with an executor. The evidence confirms that the deceased knew that the broad subject matters of the attendance by Mr Kennedy at his home with Nurse McDonnell and the interpreter was to discuss, amongst other things, a will. It is also clear that the deceased specifically identified the persons whom he wished to benefit by his Will. However, the evidence, overall, makes it clear that he had the ability to, and did understand, the concept of a Will. Therefore, I accept that the deceased knew what a will was and its effect.
Yet, it is clear, by May 2007, that a reduced ability to plan, judge and organise, was more observable in the deceased. Similarly, by this time, he was having some difficulties performing more complex activities, such as dealing with his finances and with his shares. In addition, he was having difficulty understanding correspondence from the Australian Taxation Office and the advice from accountants and lawyers that he said he had seen about that correspondence. These demonstrated a reduced capacity for information processing and also corroborated the conclusion of Dr Unsen that the "function of the frontal lobe of his brain, which involves decision making, executive function ability to make decisions flexibly and to have insight" was reduced.
However, at this time, the deceased seemed to be able to still adequately perform basic tasks, such as dressing, or moving around the community. Symptoms akin to those of depression were also observable. These emotional disturbances were fluctuating.
At his meeting with the deceased, Mr Kennedy would have been aware that he was dealing with an elderly man whose first language was not English and about whose medical, and other, history, he had no detailed knowledge (other than the fact that a Nurse from ACAT had organised the meeting and was present). There is no suggestion that the deceased had any legal training or knowledge about wills (albeit that he had prepared two documents that he had identified as his last Will and testament, a matter unknown to Mr Kennedy). He had, however, attended the office of the Public Trustee, in late January 2007 and had some discussion about the preparation of a will and the appointment of the Public Trustee as his Attorney.
Mr Kennedy did not make any enquiry about any prior Wills made by the deceased, or, if there were a prior Will, no enquiry was made about its terms. Had Mr Kennedy done so, he could have discussed the terms of any Will with the deceased and ascertained the deceased's reasons for the alteration to the terms of any prior Will.
Nor did Mr Kennedy test, in any way, the deceased's responses to the questions in the Will Instruction Form under the heading "Family Provision Act". He seemed to have accepted, at face value, the answers given by the deceased, the relevant one being that the deceased had no other children.
Nor did Mr Kennedy test the deceased, in any way, to ascertain whether the answer to his question on this topic was accurate, or whether the answer should have been that the deceased had other children for whom he was not going to provide. It appears that he accepted that there were no other potential beneficiaries with a claim on the bounty of the deceased.
Had Mr Kennedy tested the deceased, he might have been able to elicit from the deceased that he had other potential claimants on his bounty and the reasons why he was not going to provide for such claimants. That, in turn, could have provided the basis of testamentary letters of explanation, or explanations contained within the 2007 Will, identifying the reasons for making no provision for specified family members. Such reasons, if provided, might have enabled a testing of the deceased's capacity to weigh the claims of his other children and grandchildren upon bounty.
These omissions led Mr Kennedy to not ascertain whether the deceased had any appreciation of, or ability to comprehend, the consequences, and impact, of the distribution of his estate to Tomasz and Benjamin only, especially since it deviated significantly from his long held prior testamentary intentions and since it excluded those who might be considered to be persons with a natural claim on his bounty.
Mr Kennedy's explanation of the effect of the former Act would have been likely to be far less detailed than would have been necessary in view of the answers that the deceased provided in relation to questions posed about eligible persons. There would have been little need to provide any detailed exposition of the Family Provision Act in light of the answers reported to have been given by the deceased.
In accordance with the deceased's instructions, the draft of the 2007 Will was not sent to the deceased at the Ashfield property or otherwise. Nor was any letter explaining the contents of the Will, by reference to the instructions that had been given, as drafted, sent to the deceased.
Bearing in mind that the deceased lived alone, and there was no suggestion of regular attendances at the Ashfield home by any of his children, other than, perhaps, Tomasz, and of Nathalie, the instructions to Mr Kennedy to not send a draft to the deceased, on the evidence, is somewhat inexplicable.
Also, it cannot be forgotten that the 2007 Will was not actually prepared by Mr Kennedy at his meeting in May 2007. Thus, the precise terms of the 2007 Will, as drafted, could not have been discussed on the occasion instructions were given in May 2007. This fact necessitates ensuring, when the 2007 Will had been drafted, and was to be executed, that its contents were known to, and understood by, the deceased. It also requires a consideration, by the court, of both the deceased's testamentary capacity, and his knowledge and approval, of the contents of the 2007 Will, as drafted, when it was executed in October 2007.
There was a gap of about 5 months between the date the deceased gave instructions to Mr Kennedy and the date the deceased attended the office of the Public Trustee to execute the 2007 Will. There is no evidence of what prompted the deceased, then, to go to the office of the Public Trustee. Nor is there any evidence that he had been reminded by anyone of the fact that he had not signed the Will following his meeting with Mr Kennedy, or that he should go to the office of the Public Trustee to do so. (The Progress Notes do not suggest contact between Nurse McDonnell and the deceased in or about October 2007.)
When the deceased did attend the office of the Public Trustee in October 2007, it is clear that he was oriented in place and person. He appears to have known that he had given instructions for a Will to a representative of the Public Trustee and that a Will would have been prepared and be available for his consideration. He also specified the reason why he was at the office of the Public Trustee, namely to sign that Will.
Of course, during his attendance at the office of the Public Trustee, following being handed the original, and after being given the opportunity to do so, on his own, the deceased did say to Mr Mohammed that he read the 2007 Will. However, there is no evidence of either attesting witness observing him doing so or how long it took him to do so.
The lack of any examination of, or explanation to, the deceased, about the 2007 Will by Mr Mohammed, is made more significant when it is remembered that he did not take instructions for, or prepare, the 2007 Will. Nor had he ever met the deceased previously. Taken with the fact that Mr Mohammed did not consider the Will Information Form, he could not have known anything about the deceased. (Even if he had considered that document, the reference to the deceased's ability to read and understand English was left incomplete.)
Clearly, Mr Mohammed assumed that the deceased could read. Without more, that assumption, without any particular basis, might have been a powerful factor in determining the result of the case. However, Robert's evidence of his belief that the deceased had the ability to read the lapsing notice, and be able to "deal with" it, makes the fact that no person read the 2007 Will to the deceased, of less significance.
But, even assuming that there was a legitimate basis for the assumption, apparently made by Mr Mohammed, that the deceased could read the 2007 Will, it was much bolder to assume that he was capable of understanding the legal terminology in the 2007 Will and all of its provisions without any real questioning of the deceased.
An affirmative response by the deceased, after the original of the 2007 Will was provided to him, to the question posed by Mr Mohammed "Are you satisfied with the Will?" or some similar type of question, is hardly an adequate reflection of the deceased's understanding of its contents.
I note that there is no evidence that the deceased stated his understanding about the terms of the 2007 Will, or that he asked any questions in respect thereof in his conversation with Mr Mohammed.
It is to be remembered that the 2007 Will contained material other than the mere dispositive gift of all his property to Tomasz and Benjamin. In this regard, whilst it was submitted by the Defendants that the dispositive provision of the estate in Clause 3 of the 2007 Will accorded with the deceased's instructions as recorded in the Will Information Form (Para 127 of opening submissions dated 30 April 2015), I should note, in passing, that the terms of the dispositive clause in the Will might be considered to be subtly different from the instructions recorded therein. The Will Instruction Form refers to the estate being divided "Equally b/w son Thomas and g/son Ben, Ben till 21 years. No further substitute at this stage", whilst the 2007 Will provides for the estate to be given to "the following people who survive me and reach the age of 21 years of age" and then identifies Tomasz and Benjamin. (I do not place any reliance on this subtle difference if there is one.)
In the closing submissions of the Defendants, it was submitted that a number of the clauses of the Will, as drafted, were not discussed by Mr Kennedy with the deceased or they were not the subject of the deceased's instructions. For example, Clause 4.2 of the 2007 Will directed that income earned on the estate should be paid to (in effect) Benjamin after he had reached 18 years of age (inconsistently with the instruction for the gift on an equal share of the estate to Benjamin to pass to him at the age of 21 years). Clause 5 of the 2007 Will contained a provision for dealing with any liability for Capital Gains Tax. Clause 6 provided that estate liabilities included all expenses incurred by the NSW T & G in administering the estate, or charges made for doing the work.
It was submitted that had the topic of Capital Gains Tax, or income tax, been discussed with the deceased, he would have had difficulty understanding the concepts bearing in mind his difficulties with his own taxation affairs.
There is no specific evidence that any of these Clauses was the subject of discussions with, or instructions from, the deceased, and they were not recorded in the Will Information Form. There is no specific evidence that the effect of each had been explained to the deceased. Had they been explained, and had there been discussion, the deceased's capacity, or lack thereof, to understand each might have been elicited. It was not. Thus, the 2007 Will prepared by Mr Kennedy contained a number of clauses, even though the only specific instructions from the deceased appear to have been simply to leave everything to Tomasz and Benjamin.
Furthermore, there was evidence of the deceased's frugal nature and the spartan existence in which he was, and had been, living. There was evidence from Nurse McDonnell that the deceased refused to immediately appoint the Public Trustee as his Attorney because of the costs. This, and other evidence about the deceased's personality in regard to spending money, does suggest that it would have been somewhat out of character for him to nominate the NSW T & G as the executor in circumstances where it would be charging fees for services provided, and would also be entitled to seek executor's commission.
I do not think that the evidence of Nurse McDonnell that the deceased had questioned Mr Kennedy about costs and commission really goes far enough since there is no precise evidence about what had been discussed, or whether it was in the context of the role of the Public Trustee as executor or as an Attorney.
Thus, in my view, some further discussion with the deceased would have been required, after the 2007 Will was prepared, and before its execution by the deceased, to ensure that he was capable of understanding all of the clauses in the 2007 Will and that he knew and approved of each.
As has been stated, there is no evidence that the Clauses of the Will were discussed by Mr Mohammed at the time the deceased executed the 2007 Will. The evidence is clear that he did not do so. He made no attempt, even in a perfunctory way, to satisfy himself of the deceased's testamentary capacity, or his knowledge and approval of the contents of the 2007 Will in October 2007. Accordingly, all that the court is left with is the deceased's statement that he had read the 2007 Will and was "satisfied" with it.
I have earlier referred to the statements in Nicholson v Knaggs, by Vickery J, at [97], to the effect that it needs to be shown that the deceased had the capacity to understand the practical effect of the central clauses in the Will, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it. At [664], his Honour recommended a "considered and appropriately structured interview with the testatrix", having emphasised, at [387], that "in order to establish knowledge and approval of a will by a testator, more is required than 'merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him'". I respectfully agree.
Mr Mohammed asked no questions in an effort to satisfy himself of the capacity of the deceased to recall what property he had, what family the deceased had, or what claims, other than those of Tomasz and Benjamin, there might have been on the deceased's bounty. Mr Mohammed simply accepted the deceased's statement.
In this regard, the evidence of Dr Lye relating to the deceased being able to understand the issue of a Power of Attorney if he was instructed about it, and if it was clarified for him, does not assist the NSW T & G, since there is no evidence of any explanation given to the deceased of the terms of the 2007 Will. Mr Mohammed did not provide any advice about the 2007 Will and did not explain, or clarify, any of its terms to the deceased before its execution by him. This also is important bearing in mind the deceased's reduced capacity for information processing identified by Dr Lye.
Furthermore, bearing in mind the concern that the deceased had expressed to Nurse McDonnell about his ability to "trust" the Public Trustee, the appointment of the Public Trustee in the 2007 Will, is difficult to explain. In the circumstances of this case, more is required than merely establishing that the deceased executed the Will in the presence of two witnesses after he said that he was "satisfied" with it.
There is evidence, which I accept, that following its execution, Mr Mohammed provided the deceased with a copy of the executed 2007 Will. However, it is clear that no person read the Will to the deceased or explained its contents to him at the time of its execution. There is no evidence that any person did so at any time thereafter.
All the matters, to which I have referred, involving Mr Kennedy, and then Mr Mohammed, do suggest that there were some failures, and some irregularities, of ordinary legal procedures, that are common when taking instructions for, and then having, a Will executed.
Yet, I do not consider that the 2007 Will necessarily demonstrates any irrationality on the part of the deceased. He provided reasons, in August 2007, to Nathalie for omitting each of his children. Other evidence reveals the nature of his relationship with those children. It seems clear that he was closest to his son, Tomasz, and his grandchild, Benjamin.
I have also considered the omission of all of the deceased's other children and to a lesser extent, his grandchildren, in the 2007 Will. Interestingly, senior counsel for the Defendants did not suggest that the 2007 Will was irrational. (In fact, it was not seriously suggested that the deceased could not remember his children.) Undoubtedly, this was a deliberate omission bearing in mind that a determination of the question whether the 2007 Will was irrational would depend upon the deceased's personality, his relationship with the named beneficiaries, his relationship with others who had a claim on his bounty and what he believed to be the circumstances of each of them.
More importantly, I have borne in mind, that the 2007 Will effected a substantial change to the deceased's long-standing (since 1988) testamentary intentions, so as to exclude four of his children, in respect of at least some of whom he might have been expected to make provision. Although it appears that the deceased had considered making Benjamin a beneficiary for some time before the instructions for the 2007 Will were given, the significant change to exclude all of the Defendants appears to have been a relatively abrupt one when compared with the long held testamentary intentions revealed by the 1988 document and then by the 1994 document.
There is some evidence, from Nathalie, of the reasons given by the deceased, in about August 2007, for altering his long held testamentary intention to divide his estate equally between his five children. That explanation was in the context of seeking advice relating to the transfer of the Wife's property. Yet, what the deceased said to her does provide some evidence of his capacity to consider the competing claims upon his bounty. However, as stated, there is no evidence that the deceased had a factual basis for expressing any view about the financial circumstances of each of his children in August 2007. Furthermore, on neither of the occasions that he saw, and spoke to, an officer of the NSW T & G was the deceased's attention drawn to the existence of his other children, or grandchildren, and to whether any had a legitimate claim upon his bounty.
Despite the protestations to the contrary, I am not satisfied that each of the Defendants had a particularly close relationship with the deceased. (In the case of Lech, he and the deceased were clearly estranged for about 30 years.) Overall, the evidence suggests that following the separation of the deceased and Genowefa, the children supported her, rather than the deceased, and that each was closer to her than to the deceased.
I should mention that Dr Orr made clear that the deceased did not make any delusional, or unusual, statements about his family and that there did not seem to be any psychosis or unusual beliefs in terms of his family. I also refer to the evidence of Dr Orr that "from the first time that I saw him he had indicated that he didn't feel close to his family and there was one son that mainly did his, bringing him backwards and forwards or assisting him". Thus, the nature of his relationship with each of the Defendants may also have been a relevant consideration in making the 2007 Will.
It was submitted by the NSW T & G that the deceased's reason for excluding the Defendants related to him believing that his children (presumably, other than Tomasz), were endeavouring to change the title to the Wife's property (with, or without, his knowledge). It was also submitted that the deceased's relationship with the Defendants was a contributing factor for his decision.
However, if this reason provided was correct, it demonstrates that the deceased was unable to understand that Tomasz would benefit, in precisely the same way as the other children, from the lapsing of the caveat and the sale of the Wife's property. This inability may have been caused by impairment of cognition, being his information processing capacity, or by the deterioration of his mental flexibility.
That the deceased was informed that Tomasz was purchasing the Wife's property prior to executing the 2007 Will, is also relevant. The deceased does not appear to have been capable of understanding this circumstance, since he continued to assert, even to Nathalie, that he retained an interest in the Wife's property and that he retained a belief that he could, somehow, reverse what had occurred.
These matters raise the question, when the evidence concerning the Wife's property is considered, whether the deceased's "cognitive impairment, being mental rigidity, which is a reduced capacity for flexible thought, or an inability to shift freely from one idea to the next", was a "disorder of the mind" which "prevented the exercise of his natural faculties". That he had difficulties with flexible thinking, or shifting loads of thought, which some might describe as inflexible thinking, is clear from the evidence of Dr Lye, albeit that she described them as "only mild impairments". They, too, lead me to conclude that I cannot be satisfied that the deceased's mind was "free to act in a natural, regular, and ordinary manner": Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, per Hood J, at 199.
Furthermore, if, as I have found, Robert only served the lapsing notice, none of the children's names, other than Robert's, was on that document.
This basis of altering his testamentary intentions also raises a doubt about the deceased's capacity to reflect upon the claims of the Defendants who, by nature, were persons who could be supposed to have claims on the deceased's bounty, and to have the ability to evaluate and discriminate between the respective strengths of those claims.
In this regard, I make clear that any unfairness suggested by the dispositions in the 2007 Will is not directly in issue. The dispositions become relevant only for the light they shed on the deceased's capacity to understand the claims to which he ought to have given effect when making the testamentary dispositions.
In addition, as stated, a testator might make a valid will disinheriting some of his children out of capricious, frivolous, mean, or even bad, motives. The function of the court is not to substitute its own view of what the deceased should have done. Nor does the court necessarily need to look for a justification for the change in the deceased's testamentary intentions, or inquire why he disinherited his other children and grandchildren. An irrational, unjust, unfair, vindictive or even perverse, Will must be upheld if the testator had the capacity to make a will.
As Gleeson CJ said in Easter v Griffith, at 290, "[t]he 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."
Whilst I am satisfied that the deceased, in May 2007, only suffered mild cognitive impairment, I cannot be satisfied, on the totality of the evidence, of his testamentary capacity at the time he gave instructions for, or at the time he executed, the 2007 Will. This conclusion makes it unnecessary to determine whether the NSW T & G, as propounder of the 2007 Will, has affirmatively established that the deceased knew and approved the contents of that Will.
However, in case I am wrong on the question of testamentary capacity, it is prudent to consider the latter question.
I cannot be satisfied that the deceased knew and approved of the terms of the 2007 Will. In particular, the evidence, overall, does not able me to be affirmatively satisfied that the deceased was capable of understanding the practical effect of nominating the NSW T & G as his executor and trustee, particularly where there was a real possibility that it would be required to act as trustee under the terms of the 2007 Will for some years, or that the deceased was capable of understanding other clauses of the 2007 Will, the substance of which do not appear to have been discussed with him. In reaching this conclusion, I have not forgotten that the deceased signed the 2007 Will.
That the deceased was able to tell Ms Scarlett of some of the terms of the 2007 Will, in August 2009, is an important consideration in revealing his understanding, and his memory, of some of its terms, at that time. But, even though he might have known and approved of the identity of his two beneficiaries, I am not satisfied that he knew and approved of the whole of contents of the 2007 Will. (In this regard, I must also weigh what he had said to Dr Unsen, in May 2008, about having left his estate to his five children.)
In particular, I cannot be satisfied, after a consideration of the whole of the evidence, that all of the terms of the 2007 Will were discussed with, and explained to, the deceased either before or after it was prepared to ensure that he knew and approved of all those terms. Again, it is relevant to note, that he was an elderly testator, with mild impaired cognition, whose condition was deteriorating, and that no person read through the 2007 Will after it was prepared, or explained its contents to him, or asked if it contained his instructions.
I cannot be satisfied that the procedures that Mr Kennedy and Mr Mohammed adopted before the deceased signed the 2007 Will led to him knowing and approving its contents.
It follows that there cannot be a grant of Probate in solemn form of the copy of that Will and that there should be a grant of Probate of the 1994 document. The matter may be referred to the Registrar to complete the grant.

Determination of the Family Provision Proceedings

In the circumstances, it is unnecessary for me to deal with the family provision proceedings and in accordance with the view of the parties, those proceedings should be dismissed. I am prepared to make that order.
For the assistance of the parties, on the issue of the burden of costs, I mention that this case is one in which there appears to have been a real, and legitimate, question whether the 2007 Will was the last valid Will of the deceased, in which the facts did not all point in the same direction.
It must be remembered, also, that probate litigation is not entirely between parties, because they did not make the Will and the Court is required to determine whether a document of somebody who is dead is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved: Tu v Tu; Estate of Tu.
In relation to the family provision case, the evidence read on that case has been read in the probate proceedings also. I mention, again, the failure to disclose fully and accurately the financial circumstances of each of the Plaintiffs in the proceedings which was only remedied during the course of the hearing.
I shall give the parties the opportunity to consider the form of the orders that should be made, and also to consider the question of costs. I shall stand the matter over to a date convenient to the parties and to the court. In the event that agreed Short Minutes of Order reflecting these reasons, and the question of costs, is resolved between the parties, I shall make orders in Chambers.
I direct the parties to deliver to my Chambers, within 7 days, an agreed form of Short Minutes of Order. If that proves impossible to achieve, then competing forms of Short Minutes of Order should be provided within the same time. I shall deal with the question of costs, as a separate issue, unless agreement is reached.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 August 2015

Births Deaths and Marriages Registration Act 1995(NSW)

Family Provision Act 1982(NSW)

Trustee and Guardian Act 2009(NSW)

Public Trustee Act 1913(NSW)

QSC 360 In the Will of England (1900) 22 ALT 86 In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197 Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596 Kerr v Badran; Estate of Badran [2004] NSWSC 735 Key v Key [2010] EWHC 408; [2010] 1 WLR 2020 King v Hudson [2009] NSWSC 1013 Koerstz v Norman [2008] NSWSC 133 Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 Le Bon v Lili [2013] VSC 431 Lemon v Lemon [2014] QSC 123 Lifely v Lifely [2008] EWCA Civ 904 Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226 Nicholson v Knaggs [2009] VSC 64 Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 Oakes v Uzzell [1932] P 19; (1931) 100 LPJ 99 Palin v Ponting [1930] P 185 Paraskov v Paraskos [2002] WASC 109 Parker v Felgate (1883) 8 PD 171 Perrins v Holland [2009] EWHC 1945 Powell v Dinwoodie [2012] WASC 139 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Re Levy [1953] VLR 652 Read v Carmody [1998] NSWCA 182 Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62 Scott v Romanoff [2015] VSC 343 Sharp v Adam [2006] EWCA Civ 449; [2006] WTLR 1059 Simon v Byford [2014] EWCA Civ 280 Smith v Tebbitt (1867) LR 1 P&D 398 Taylor v Waters (Supreme Court, Powell J, 19 June 1992, unrep) Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 Tsagouris v Bellairs [2010] SASC 147 Tu v Tu; Estate of Tu [2008] NSWSC 458 Tyrrell v Painton [1894] P 151 Van Alst v Hunter (1821) 5 Johns. Ch. 148 Veall v Veall [2014] VSC 38 Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Vukotic v Vukotic [2013] VSC 718 Wade v Frost [2014] SASC 162 Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh and Pamela R. Champine, "Assessment of Testamentary Capacity and Vulnerability to Undue Influence" (2007) 164 The American Journal of Psychiatry 722

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