Testamentary capacity
23The test for testamentary capacity was authoritatively stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 (at 565):
It is essential to the exercise of such a power that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
24The onus of proving that a document is the intended last will of a free and capable testator lies on the party propounding it, and if this onus is not satisfied, the Court is bound to pronounce against the will [ Bailey v Bailey (1924) 34 CLR 558, 570; Worth v Clasohm (1952) 86 CLR 439]. However, while the legal onus always remains on the proponent, an evidentiary onus may fall on the opponent, by reason of the prima facie presumption of capacity that arises from proof of due execution of a will rational upon its face [ Ridge v Rowden , NSWSC, Santow J, 10 April 1996, unreported, BC9601342, 39] .
25Thus while the proponent of a will bears the formal onus of establishing testamentary capacity, capacity will be inferred in the case of a will that is rational on its face and duly executed. However, if there are doubts as to testamentary capacity - for example, the presence of insane delusions, but not mere old age or physical infirmity - the burden reverts to the proponent, who will have to affirmatively satisfy the Court that upon the evidence as a whole, the testator was of sound mind, memory and understanding [ Banks v Goodfellow ; Bailey v Bailey , 570; Bull v Fulton (1942) 66 CLR 295, 343; Ridge v Rowden , 47 ]. Extreme age, or grave illness, displaces a prima facie case of testamentary capacity only if the testator's mental capacities are shown to have been so affected as to make him or her unequal to the task of disposing of his or her estate [ Timbury v Coffee (1941) 66 CLR 277] . T he standard of proof in respect of testamentary capacity is the balance of probabilities [ Worth v Clasohm , 453 (Dixon CJ, Webb and Kitto JJ); Kantor v Vosahlo [2004] VSCA 235, [22]] .
26Judged as at the time when it was made, the Will is not irrational on its face. Lily, as might be expected, left her only substantial asset, her interest in Beach Road, to her husband, Abraham ( Lily is no rarity amongst testators in attempting to make testamentary provision in respect of property held in joint tenancy) . Albert and Morris were only to receive an interest in Beach Road if Abraham predeceased Lily, in which event they were to inherit it as tenants in common in equal shares, while the residue of the estate, both real and personal (such as it might be), was left to Albert; but if Albert predeceased Lily, the whole of her estate was to pass to such child or children who survived her - if more than one, as tenants in common in equal shares. Thus, while it is true that it was only in a remote eventuality that the will made provision for her daughters, it did not altogether ignore them. I do not accept that in the circumstances then prevailing that a will that - providing first and foremost for the surviving spouse - then made provision for the sons to the exclusion of the daughters, was prima facie irrational. While the reasons why such a will was not irrational are elaborated below in connection with the family provision claim, in short they are: that the sons were needier than the daughters, who were in better financial positions; that Albert had always resided and continued to reside with his parents in Beach Road and was dependent on them for accommodation; and that (given the poor relationship between the sons and the daughters) the daughters might disturb Albert's occupation of Beach Road, whereas Morris was unlikely to do so.
27The Will is consistent with statements made by Lily to Rabbi Chriqui, who gave evidence that, 'around either Mr Ezekiel's passing or after Mr Ezekiel's passing' - which was on 19 July 2000 - he had a conversation with Lily, who said to him: "I have taken care of the girls, and now I have to take care of Albert. He has no place to live". According to the Rabbi, Lily mentioned that she had already helped Clara purchase her house (which was next door to the Beach Road property); he did not recall whether she mentioned Evelyn by name; she referred to the Beach Road property; and while he is unsure whether she referred only to Albert or to both of the sons, at least Albert was mentioned. The Rabbi observed no deterioration in Lily's condition - she was "the same Mrs Ezekiel as I knew her before, no change, no difference ". If this conversation took place at the time suggested by the Rabbi, it was some years after the Will was made; but it indicates a state of mind consistent with the intentions reflected in the Will. The Rabbi's evidence tells in favour of testamentary capacity.
28The circumstances surrounding the preparation and execution of the Will do not raise doubt as to, but tell in favour of, Lily's capacity. Brett Tobin's evidence, already mentioned, indicates that, shortly after giving instructions to Mr Woolley, Lily knew that she had seen him in connection with a will.
29Generally, the critical time for determining testamentary capacity is the time of the execution of the will, and it is sufficient if, when the will is executed, the testator, then being free and capable, acknowledges the will as setting out his or her wishes and has the requisite capacity [ Re Crooks (Estate); Ackerman v Brown NSWSC, Young J, 14 December 1994, unreported ] . David Musrie, one of the attesting witnesses, gave evidence and was cross-examined about the events of 10 December 1997, when he and Mr Woolley attended on both Lily and Abraham for the purpose of signing the Will (and Abraham's mirror will). He received a telephone call from Lily that day, who asked him to call at Beach Road to witness the execution of her will - which strongly suggests that she knew that she was making a will. He agreed to do so. When he arrived at Beach Road, Mr Woolley was already there. The occasion was a formal one; only Abraham, Lily, Mr Woolley and he were present. After reading over the wills orally, first Abraham's and then Lily's, Mr Woolley provided a detailed explanation of their terms, sufficient that Mr Musrie was able to understand and relate their effect. Then, Mr Woolley had Abraham and Lily read the wills. He asked them "Is this okay?" - and they each responded, "Yes". To Mr Musrie's observation, Lily seemed in good health. Although I take into account that he apparently did not observe that she was then in perhaps the initial stages of whooping cough, and that he receives some minor assistance from Albert and Morris, Mr Musrie appears to be essentially independent, and his evidence withstood powerful cross-examination; I see insufficient reason to doubt it.
30Mr Woolley, the other attesting witness, being deceased, his evidence is not available. Although much was sought to be made of the absence of any file note or other record, his file was routinely destroyed in 2005, so any file notes are unavailable, and their absence is unexceptional.
31Dr Ursula Christopher, who had been Lily's treating doctor for over 20 years, knew her well and saw her often, including on 11 December 1997, the day after she executed the Will, when she presented with coughing and wheezing, which was subsequently diagnosed as whooping cough; she was also very mildly anaemic. According to Dr Christopher, she was physically sick with whooping cough, but mentally well and normal. Dr Christopher described Lily as a woman of strong character who would not do anything she did not want to do, and a resourceful woman who was managing to cope with the pressures of looking after her ill husband. Dr Christopher had numerous elderly patients and knew the protocol for testing for suspected dementia - a mini mental examination - but never saw any need to administer it to Lily, who exhibited no signs of difficulty with comprehension or memory, or any other cognitive dysfunction. She pointed out that Lily was compliant with a complex medication regime, and that there was nothing in her demeanour to suggest that she was confused, demented, or cognitively impaired.
32Dr Christopher was well-placed to form a view as to Lily's capacity. She knew Lily and her physical condition well, and maintained that her mental state was unimpaired, at least before about 2003. An attack on her credit, based on a letter to the daughter's solicitors in which she had professed no recollection beyond what was in her notes, miscarried when it emerged that it was with reference to Abraham, not Lily. Not only was there was nothing in her evidence to cast doubt on Lily's capacity; it tells firmly in favour of capacity. Her evidence is important: the evidence of those with experience in dealing with elderly people, and who have personally observed the testator at and around the relevant time, is of considerable significance, often more than the opinions of others, medically qualified or not, who have not personally observed the testator at relevant times [ Ridge v Rowden , 50 (citing Kirby P in Easter v Griffith , NSWCA, unreported, 7 June 1995)].
33Dr Ernest Tam, a consultant physician and geriatrician retained on behalf of the daughters, provided reports in which he expressed a firm opinion that Lily likely lacked capacity at the time when she executed the Will. However, he had not seen Lily (nor had any of the medical experts other than Dr Christopher). His opinion was based on her physical illness, coupled with what he considered the striking change in testamentary intention to exclude provision for the daughters. However, in cross-examination, he withdrew from the statement in his report that Lily's physical condition would likely have caused her to lose capacity, to one that it merely could have done so. He also accepted that the apparent change in testamentary intention was not relevant to testamentary capacity. His evidence ultimately amounted to no more than that it was possible that Lily's capacity was affected by her physical condition. But there is simply no evidence supportive of that possibility. First, there is no obvious reason why her physical conditions would have impacted on her testamentary capacity. Secondly, Dr Christopher's evidence is that they did not, and that Lily's cognitive functioning was in fact unimpaired.
34The psychiatrists retained by each of the parties - Dr Stephen Allnut for the sons and Dr Robert Russell for the daughters - provided a joint report, after a conclave, in which they agreed that there was insufficient medical evidence to conclude that Lily lacked testamentary capacity. Dr Allnut said:
We agreed that she had the cognitive capacity to make a will. Where we disagreed was her vulnerability, some disagreement to the extent of her vulnerability, as far as I understand, as her susceptibility to external influence, an autonomous will. ...
35He adhered to the view that notwithstanding some loss of vision and hearing, respiratory problems, a (remote) possibility of some minor cognitive difficulties, and stress, there was no significant doubt as to her testamentary capacity at the relevant time. When asked about the potential impact of the difficult behaviour of a relative (such as Albert) at home, he answered:
Well, I don't think that necessarily means her capacity to make an autonomous decision about making a will would necessarily be affected. Again it depends on the circumstances. I think one, what one has to come back to is that cognitively she had capacity. There was no evidence of significant incapacity. While she might have been vulnerable I don't think that is a significant vulnerability and it depends on what that relationship was and whether that went to the making of a will.
36This was not even a case of "extreme old age" - Lily was 73 years of age when she executed the Will, living at home, looking after herself and Abraham (and, to some extent at least, Albert), making doctor's appointments, managing her medicines, and living a more or less independent life. It was to be another eight years before she died, and it was not until five or six years later that her medical records begin to refer to any sign of dementia. There is no doubt that in late 1997 Lily had issues with her physical health - she had whooping cough; she had longstanding visual and hearing defects, but not such as to preclude her from reading and hearing; and she was probably dependent on the benzodiazepine drug Serepax. However, there is nothing to suggest that in 1997 she had any cognitive defect.
37The estate, and the terms of the Will, were hardly complex. The estate substantially consisted of Beach Road. I see no basis for doubt that Lily knew that she and Abraham owned it, and that it substantially constituted their estate. Nor do I see any basis for doubt that Lily knew that those with claims on her bounty were primarily her husband and thereafter her children. It is implausible that Lily simply 'forgot' her own daughters (which would imply that Abraham did so as well), notwithstanding that they had three weeks to consider the draft documents after they were received shortly after 19 November and before they were executed on 10 December 1997. Lily's later statement to Rabbi Chriqui provides a much more likely explanation for the daughters' omission from the Will.
38There is much more reason to doubt Abraham's capacity in late 1997. By the mid-1990's, his health had deteriorated, and he was admitted to St Vincent's Hospital on 26 October 1995 with "acopia" (an inability to cope), and again a month later for two weeks with "dementia acute deterioration". Mr Musrie's evidence suggests that he said and did little in the course of the will execution process on 10 December 1997. On any view, Lily's capacity would seem to have been much less dubious than Abraham's. Yet there is reason to suppose that even Abraham, though unwell, did not lack capacity. First, the presence of some dementia is not incompatible with testamentary capacity. Secondly, in early 1999, while Abraham was in Montefiore Nursing Home, Evelyn told him that Albert was walking around the house saying "This house is mine", and would not let Clara's daughter Yvette stay in it. Abraham responded "I'll see to that. I'll fix it. Get me a solicitor". Although Evelyn was unable immediately to procure a solicitor, Abraham somehow did so three weeks later, when he made his 1999 will - apparently during a period of leave from the nursing home, for which he was collected by Albert. It will be recalled that that will made equal provision for the four children, and excluded Albert as an executor. These circumstances point to his knowing - even eighteen months after he made his 1997 will - (1) that he owned Beach Road, (2) who had a claim on him, (3) the will-making process, and (4) that he had previously made a will (the 1997 mutual will) excluding his daughters.
39Since the Will is duly executed and rational on its face, prima facie testamentary capacity is established. In my view, no serious doubt appears as to Lily's testamentary capacity. Her physical health problems do not indicate that she had any cognitive defect. There is nothing in the contemporaneous medical records to suggest any impairment of capacity. Her treating doctor says none was apparent. Although, no doubt, under some stress from caring for her ailing husband, she was apparently functioning quite well. That her will did not make provision directly for her daughters would not of itself raise a doubt as to capacity, because there are other explanations, and all the more so in the light of what Lily later expressed to Rabbi Chriqui. On the whole of the evidence, insufficient doubt attends her capacity to shift the evidentiary onus to the sons. And even if there were a doubt, on the whole of the evidence, any such doubt is not sufficiently substantial to prevail over the evidence that tells in favour of Lily being of sound mind, memory and understanding at the time of execution of the Will.