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[2025] NSWSC 1389
Supreme Court of NSW
2025-11-28
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Waters v Frank; Frank v Waters [2025] NSWSC 1389
Hearing dates: 20 – 31 October 2025
Date of orders: 28 November 2025
Decision date: 28 November 2025
Jurisdiction: Equity
Before: Elkaim AJ
Decision: 1. Probate granted to the first defendant on 30 April 2021 of the will of the late Percy Lloyd Waters dated 5 August 2019 is revoked.
2. Probate in solemn form of the will of the late Percy Lloyd Waters dated 3 June 2009 is granted to Laura Marie Waters.
3. The requirement to publish notice of the grant is dispensed with.
4. The proceedings are remitted to the Probate Registrar to complete the grant in accordance with the rules.
5. The further amended cross-claim filed in court by the third defendant on 29 October 2025 is dismissed.
6. The parties are to make written submissions on costs within 14 days, with costs to be decided on the papers.
Catchwords: SUCCESSION — Contested probate — Suspicious circumstances — Lack of knowledge and approval —Where interested party present during preparation and execution of wills — Where interested party’s entitlement increased with each successive will — Where interested party was a paid carer
SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Soundness of mind, memory and understanding — Where deceased diagnosed with mild-mixed dementia — Where significant bequest and gifts made to a paid carer
SUCCESSION — Contested probate — Undue influence — Where testator vulnerable — Where interested party a carer with control of testator’s affairs — Where testator dependent on interested party — Where background circumstances created coercion
Legislation Cited: Evidence Act 1995 (NSW), s 13
Cases Cited: Aleta Gooley v Brett Gooley [2021] NSWSC 56
Banks v Goodfellow (1870) LR 5 QB 549
Boyce v Bunce [2015] NSWSC 1924
Bracher v Jones [2020] NSWSC 1024
Briton v Kipritidis [2015] NSWSC 1499
Callaghan v Myers (1880) 1 NSWLR 351
Chalik v Chalik [2024] NSWSC 117
Green v Green [2024] NSWSC 1442
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Nock v Austin (1918) 25 CLR 519; [1918] HCA 73
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Re Estate Barzacca [2025] NSWSC 1252
Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007
Schwanke v Alexakis; Camilleri v Alexakis (2024) 114 NSWLR 459; [2024] NSWCA 118
Starr v Miller; Starr v Miller [2021] NSWSC 426
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116
Category: Principal judgment
Parties: Laura Marie Waters (Plaintiff)
Andrew Philip Frank (First Defendant)
Lavinia Williment (Second Defendant)
Kevin Emanuel (Third Defendant)
Fleming Law (Interested Party)
Cross-Claim
Andrew Philip Frank (Plaintiff)
Laura Marie Waters (First Defendant)
Lavinia Williment (Second Defendant)
Representation: Counsel:
J Brown / L McIntyre / S Ramsden (Plaintiff/First Respondent in Cross-Claim)
A Frank (First Defendant)
L Ellison SC (Second Defendant/Second Respondent in Cross-Claim)
A Stevens / J Lee (Third Defendant/Claimant in Cross-Claim)
Solicitors:
Fleming Law (Plaintiff in Claim/First Respondent in Cross-Claim)
Mitchell Lawyers (Second Defendant in Claim/Second Respondent in Cross-Claim)
Boyd House & Partners (Third Defendant in Claim/Claimant in Cross-Claim)
File Number(s): 2022/184567
Publication restriction: No
A grant of probate in common form was made to Mr Andrew Frank of a will of Dr Percy Lloyd Waters dated 5 August 2019. The grant was made on 30 April 2021. The plaintiff’s case seeks the revocation of this grant and for there to be a grant of probate, in solemn form, to her of a will dated 3 June 2009.
There is also an amended cross-claim in which the third defendant seeks an order that the grant of probate in respect of the 2019 will be made in solemn form. The pleadings are described in greater detail below.
I will begin with a chronology of basic events.
Percy Lloyd Waters was born in London on 27 December 1918. He completed a bachelor’s degree in Science (Chemistry) and then completed a PhD at the University of London in 1948. He immigrated to Australia in 1953 and soon after commenced working for the CSIRO as a research scientist, essentially a chemical engineer. I understood his area of work to involve the recycling of coal gas.
In March 1955 Dr Waters married Ms Margarita Metr (Mrs Waters). They had two daughters, Laura Marie Waters (the plaintiff) born in 1956 and Victoria Anne Waters born in 1957.
Mrs Waters and her mother (Mrs Maria Metr) jointly purchased a residential property in Chatswood in March 1960; this property was referred to as the family home. Dr Waters left the home in 1969 and was divorced from Mrs Waters in April 1972. Mrs Maria Metr died in May 1972 so that Mrs Waters became the sole owner of the Chatswood property.
Dr Waters retired in 1975. In the 1980’s Dr Waters moved to Bathurst where he had purchased a property. Mrs Waters re-married Dr Waters in May 1999. Mrs Waters died in March 2003. Under her will, Dr Waters became the sole owner of the Chatswood property. It was a significant part of the case that Mrs Waters’ intention was that the Chatswood property would be passed on to the plaintiff and her sister Victoria.
Mr Geoffrey Murray became Dr Waters’ solicitor in the late 1980’s and remained his solicitor until Mr Murray retired on 30 June 2011. On 5 October 2011, Dr Waters retained Mr Andrew Frank (the first defendant) as his solicitor. Mr Murray died in July 2024. There is an affidavit from him dated 19 August 2023.
The plaintiff married Mr Jeffrey Fraser in February 1999. They had a daughter, Alexandra, in February 2002.
Victoria Waters married Mr Jim Goss in August 2004. Mr and Mrs Goss live in California. They have no children.
On 30 August 2006, Dr Waters, as a pedestrian, was hit by a motor vehicle in the Sydney CBD. He was severely injured, in particular to the hip and pelvis area. He was admitted to hospital where he suffered significant complications leading to him being placed in the intensive care unit and put under a medically induced coma. The notes also refer to a closed head injury. On 2 November 2006 Dr Waters was discharged to a rehabilitation hospital where he remained for 7 weeks.
“Carer
No personal care
Assistance around home, shopping, appointments, errands and transport. Likeable elderly gent. Required Tues-Wed-Thurs 11am-5pm. Driver’s licence essential. E-Tag supplied. N/S. References $150 per day North Shore Area. Call Percy for interview.”
Within a “few months” of commencing as a carer the second defendant had gained access to Dr Waters’ bank accounts.
On 24 July 2008, a negligence claim arising from the motor vehicle accident was settled for $500,000 inclusive of costs.
On 14 October 2008, Dr Waters underwent a total hip replacement to address post-traumatic arthritis and an unequal leg length.
Dr Waters died on 4 September 2020. I will hereafter refer to him as the deceased.
On 30 April 2021, probate in common form of a will executed by the deceased on 5 August 2019 was granted to Mr Frank. He and Mr Stephen Bates were the original executors under the will. Mr Bates has since renounced his position.
Mr Frank is very ill and has a short life expectancy. On 8 November 2024, Lindsay J made orders giving the third defendant conduct of the proceedings on behalf of the first defendant. This applies to both the defence of the plaintiff’s claim and a cross-claim that had been brought by the first defendant.
The will executed on 5 August 2019 was the last of a series of wills that had been made by Dr Waters. There are wills made on the following dates:
25 June 1999: the executor is Mr Murray.
28 May 2008: the executors are Mr Murray and Mr Fraser.
3 June 2009: the executor is Mr Murray.
14 December 2011: the executors are Mr Frank and Mr S Bates.
19 December 2016: the executors are Mr Frank and Mr S Bates.
27 October 2017: the executors are Mr Frank and Mr S Bates.
5 August 2019: the executors are Mr Frank and Mr S Bates.
The last four wills (2011, 2016, 2017 and 2019) were prepared by Mr Frank. The wills include some specific gifts. However, this case really concerns the residue of the estate. The following table indicates the shifting entitlements to the residue of the estate, commencing with the 2009 will. The percentages are not necessarily in the wills but represent the effective allotment.
| 2009 Will | 50% of residue to each of the plaintiff and her sister, Mrs Goss. Specific bequests to niece’s family and to friends | | 2011 Will | 30% of residue to each of the plaintiff and her sister, Mrs Goss, + jewellery 20% of residue to granddaughter Alexandra Fraser 5% of residue to the second defendant 5% of residue to niece and family 5% of residue to charities 3% of residue to Kathey Collins-Kurrell 2% of residue to friends | | 2016 Will | 25% of residue to each of the plaintiff and her sister, Mrs Goss, + jewellery 20% of residue to niece and family 10% of residue to granddaughter Alexandra Fraser 10% of residue to the second defendant 5% of residue to Kathey Collins-Kurrell 3% of residue to friends 2% of residue to charities | | 2017 Will | 23% of residue to each of the plaintiff and her sister, Mrs Goss, + jewellery 20% of residue to niece and family 15% of residue to the second defendant 10% of residue to granddaughter Alexandra Fraser 5% of residue to Kathey Collins-Kurrell 2% of residue to friends 2% of residue to charities | | 2019 Will | 21% of residue to the second defendant 20% of residue to each of the plaintiff and her sister, Mrs Goss, + jewellery 20% of residue to niece and family 10% of residue to granddaughter Alexandra Fraser 5% of residue to Kathey Collins-Kurrell 2% of residue to friends 2% of residue to charities |
The table clearly shows an increase with each will (starting with the December 2011 will) to the second defendant, generally at the ‘expense’ of the plaintiff and her sister. In the final will the second defendant’s share of the residue is the largest (if only by 1%).
I have decided that there should be a grant of probate in respect of the 2009 will, primarily because:
The first and third defendants have failed to dispel the existence and effect of suspicious circumstances in respect of each of the wills from 2011. In other words, the defendants have not established, in the light of suspicious circumstances, that the deceased had an unfettered knowledge and approval of the contents of the wills.
The plaintiff has established the existence of probate undue influence by the second defendant at the time of execution of each of the same wills.
I have also accepted, in respect of cognitive capacity, the views of the plaintiff’s expert, but emphasise the dominating reasons for my decision are the findings in the previous paragraph.
The amended cross-claim filed by the third defendant will necessarily be dismissed.
The balance of the judgment will, I hope, explain these conclusions.
The plaintiff commenced proceedings, initially only against Mr Frank, with the filing of a statement of claim on 24 June 2022. The plaintiff sought revocation of the grant of probate of the 2019 will to Mr Frank. An amended statement of claim was filed on 21 November 2022 adding in the second defendant. A further amended statement of claim was filed on 22 June 2023.
The current position is that the plaintiff’s claim is encapsulated within a second further amended statement of claim filed in court during the hearing.
Under this pleading the plaintiff, in summary, requests that the grant of probate of the will dated 5 August 2019 be revoked, that probate (or in the alternative, letters of administration) be granted in respect of the will dated 3 June 2009, alternatively similar orders in respect of a will dated 23 June 1999 and, again in the alternative, that “any gift to the second defendant under any Will” be held “on trust for the residue estate to the exclusion of the second defendant”. The latest pleading includes this addition:
“Each of the contentious Wills was procured by undue influence … ”
“I do not accept that the equitable analysis applies to testamentary gifts. While the principles of unconscionability are distinct from those relating to undue influence, both comprise grounds on which equity will grant relief from certain transactions or gifts. Equity, in certain defined instances, imposes a presumption to give the person seeking to impugn the transaction a forensic advantage by casting the onus of proof on the party seeking to maintain the transaction or gift. One can see good reason for this to be so in respect of inter vivos transactions because to cast the onus on the alleged victim of undue influence or unconscionability tends to undermine equity’s protection. However, in the case of testamentary gifts, the alleged victim of undue influence or unconscionability is, by definition, dead, rendering restoration of material benefit to the victim impossible. Those seeking to impugn testamentary gifts are either, as in the present case, other beneficiaries (under the final or previous wills) or those who would take on an intestacy. There would not appear to be any compelling basis for granting such persons a forensic advantage by casting the burden of proof on the person seeking to propound the will. Indeed to do so would almost inevitably have the unfortunate consequence of facilitating challenges, particularly where there may be an expectation (which would be reasonable if there were such a presumption) that the cost of such challenges would be borne by the estate, which would be diminished accordingly.
For the reasons given above, it has been authoritatively established that there is no presumption of undue influence in respect of testamentary gifts. The reasons for the distinction would appear to apply equally to alleged unconscionability. This may serve to explain why no case has been found that applies the equitable presumption of unconscionability in a testamentary context. I am not persuaded that the equitable analysis applies, or ought extend, to testamentary gifts.”
The first defendant filed an amended cross-claim on 2 December 2022, seeking a grant of probate in solemn form in respect of the 5 August 2019 will. A further amended cross-claim was filed in court, without objection, on 29 October 2025. This pleading has the third defendant as the cross-claimant and lists Allison Weir and James Weir as witnesses to the 2019 will, thereby resolving an issue the plaintiff had raised as to the due execution of this will.
I do not intend to summarise the 7 volumes of evidence. Rather I will approach the matter on the basis of resolving the agreed issues.
“1. Should a grant of probate in solemn form be made of the following Wills of the deceased dated:
1.1 5 August 2019;
1.2 27 October 2017;
1.3 19 December 2016;
1.4 14 December 2011;
1.5 3 June 2009.
2. In relation to the Wills made in 2011 to 2019 (Contentious Wills):
2.1 Has the third defendant established that the deceased had testamentary capacity to make these Wills;
2.2 Has the third defendant dispelled the suspicious circumstances and established the righteousness of the Will and that the deceased knew and approved the contents of the Wills;
2.3 Has the plaintiff established (even circumstantially) that the Wills were invalid because of probate undue influence?
- There is no issue in the event the court is not satisfied the contentious Wills should not be admitted to probate, that the a grant should be made to the plaintiff of the 2009 Will.
Equity Claims
If any of the Contentious Wills are admitted to probate:
4. Was the making of testamentary gifts to the second defendant procured by equitable undue influence? (Note: the plaintiff acknowledges that this Court is bound by the decision of the Court of Appeal in Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118, but respectfully seeks that relevant factual findings be made).”
I will deal with each issue below but before doing so I think it appropriate to make some comments on the primary lay witnesses, in particular those that were cross-examined, and also on some specific topics, namely the medical evidence, the sale of the Chatswood home in 2008 and payments made to the second defendant from the deceased’s bank accounts.
Although insinuations were perhaps made about the character of the plaintiff and her sister, their credit was not significantly attacked. Generally, the evidence of each sister corroborated the other sister, perhaps reflecting the second defendant’s observation in this passage of her evidence:
“Q. You haven't read their affidavits. Have you read any other affidavits in the case, other than yours?
A. Yes.
Q. Whose?
A. Well Victoria's, and Laura's, well it's the same thing ….”
The intent of the remark was no doubt to suggest collaboration between the two sisters, but I do not reach such a conclusion. One area where they did differ concerned the relationship between them. The plaintiff admitted of little fractious interaction whereas Mrs Goss said there was a period of time when they did not get on or communicate.
The plaintiff was impliedly criticised for reporting her concerns about the second defendant to the police and for hiring a private investigator. I see no basis for the criticism. The conduct of the second defendant, apparently dominating the life of the deceased including the use of his bank accounts, was more than a sufficient basis for the plaintiff being concerned about her father’s welfare and endeavouring to have the second defendant investigated.
The suggestion from the second defendant seems to have been that her actions were justified because the deceased had been abandoned by his daughters. In her largely unchallenged affidavit, the plaintiff describes her relationship with the deceased. Prior to the motor vehicle accident, she described the relationship as “very close”. Following the accident the plaintiff visited her father daily while he was in hospital. This extended over a number of months. After a period of rehabilitation, the deceased was discharged from hospital, still suffering a good deal of pain. The plaintiff and Mr Fraser effectively became the deceased’s carers. They took him to appointments; they did his shopping and made his daily meals.
When the accident occurred, the deceased was living in Bathurst. While in hospital, recognising his likely disabilities, the deceased expressed a desire to move from Bathurst. The plaintiff and her husband assisted the deceased to purchase a property in Longueville. They organised the installation of a lift in the unit complex to allow the deceased to have easier access to his unit.
In November 2006, the plaintiff contracted pneumonia which became chronic. This led to the engagement of Ms Collins-Kurell, and a significant reduction in the personal assistance the plaintiff was able to give to her father. On 14 May 2008, the deceased appointed the plaintiff and her husband as his attorneys and enduring guardians.
The relationship was then influenced by the sale of the Chatswood property. I will deal with the sale more fully below. However, it is clear that following the sale there was a deterioration in the relationship, which continued for some years.
The credit of the second defendant was directly attacked. Like the plaintiff and Mrs Goss, she was a forthright witness who brooked little criticism. Unlike the sisters I think there were clear areas where her evidence was not credible. Some of these will be covered when dealing with the relevant issue but I will mention one in particular at this stage.
Mr Geoffrey Murray was the deceased’s long-time solicitor and clearly his friend, indicated by his preparedness to attend the deceased’s home for the purpose of discussing legal matters. Mr Murray made very detailed file notes of his dealings with the deceased. An example of the detail lies in the comparison of his notes with those of the first defendant, Mr Frank.
“In my overall dealings with Percy when Lavinia was involved, I sensed that something was not quite right and that there was going to be a problem. I felt so strongly about it that I began to take more detailed notes of my interactions and discussions with Percy that I kept on his files which were transferred to Owen Hodge Lawyers.”
The detail and the contemporaneous making of Mr Murray’s notes make them a powerful source of reliable evidence. In addition, there was no suggestion that Mr Murray was other than a competent and honest solicitor. Of course, in balancing the weight of the notes, in particular against the weight of the evidence of the second defendant, it must be taken into account that Mr Murray has not been cross-examined. Notwithstanding this important consideration, I think I am still in a position to draw conclusions from the notes where they contradict the second defendant’s evidence, noting of course that she was very closely cross-examined, spending over two days in the witness box.
I think it fair to say that over the two-plus days the second defendant did competently resist many of the accusations put against her. Nevertheless, where there is a contradiction between her evidence and that of Mr Murray’s notes, I prefer the latter.
On 26 July 2010, at a meeting with Mr Murray, the deceased, and Sheila (the deceased’s niece), the second defendant requested the deceased to sign a document which stated:
“I direct my companion Lavinia Ann Brown to attend and deal with my financial affairs for such period until my death that she consents to.”
“I feel Lavinia is working behind the scenes to get rid of me, because I am the last bastion still around. She would then take you to one of her shonky solicitors to achieve her objectives.”
“ADVICE:
1/ Under no circumstances am I prepared to act with Lavinia under the Power of Att
I do not trust her XXXX
2/ Your niece Sheila is of the same view
3// IMMEDIATELY CANCEL INTERNET BANKING
(It is a loaded gun waiting to be discharged)
3A/ ENGAGE ACCOUNTANT TO AUDIT BOOKS
4/ IMMEDIATELY SACK LAVINIA
5/ START RECONCILIATION PROCESS WITH FAMILY”
“Q. It's your understanding that Mr Waters was completely shocked on the day that you were fired. Correct?
A. Yes.
Q. What you tell his Honour is, Mr Murray came along that day and fired you without Mr Waters' knowledge. Is that your evidence?
A. Without his I knowledge. As Mr Waters said to me later, he said, ‘I apologise for the fact that you got fired. I had asked Geoffrey to come along to inquire about situations like bank accounts and all of this kind of stuff.’
Q. So Mr Waters was there?
A. Yes.
Q. Mr Murray came along and fired you and you say without Mr Waters ever knowing about it. Correct?
A. Correct.”
“Because of his age, frailty and non-confrontational character, Percy did not feel confident or comfortable in terminating Lavinia’s employment and asked me to do it for him. In giving me these instructions, I observed that Percy looked worried, almost afraid.”
“He sd he has reached the decision that he must get rid of Lavinia, but he seemed to be making all kinds of reasons or excuses not to do so
…
Percy admitted that he did not have the strength to do the job.
Although he knows it is not easy to sack someone, he thinks it can be done gently and nicely.
I sd I won’t be nasty to her BUT I have to be decisive and firm.
…
Percy has given me instructions to sack LAVINIA”
“He said that he has thought deeply about what I told him last Sunday and that Lavinia has to go
I asked him ‘Did he want me to do the job and fire her’
He said ‘Yes, I need your help to do the job’
I said ‘Do I have your instructions and authority to do the job’
He said ‘Yes’
I said ‘Percy, I can’t come before 1pm. I will be out there at about 1pm’
I said to Percy ‘I am glad you have made that decision, because if you neglected to make that decision, you were giving me no other choice but to take other action’”
“14/09/10
I left home at 12:30 pm
I arrived at Percy's house at 12:55 pm
I did not take the file nor any notes.
I was greeted at the front door by Lavinia
She must have seen me coming up the stairs.
She was already at the front door
I did not have to press the door buzzer
The first things she sd was ‘Percy is very depressed’
I walked in
She followed me
She went to the kitchen sink
Percy was sitting in a chair at or near the dining room table
I asked Lavinia to join us.
I said to Lavinia ‘I have the job of terminating your services as a carer effective immediately’
Lavinia asked ‘What was the reason’
I sd ‘I do not intend to go into a lot of details
We have learned:
1/ You are known under several names
2/ We believe you have trouble with Social Security
3/ We are told you have sought advice fr a sol (I did not give his name) as to your position as a de facto and you were advised to just spend Percy's money before he died’
‘I sd I am not prepared to go into any further detail’
She admitted 1 & 2 above
She denied 3 above
She said ‘It is not fair’
She sd what I have said is slanderous.
We sat around the table for a long while with hardly any conversations taking place
I was prepared to sit her out and not give any grounds
She asked Percy: was this what he wants:
He sd ‘Yes’
I told her that I took objection to her consulting third parties about Percy's affairs without express consent and authority from Percy
I sd that to take this course of action was in effect not to trust the advice given
(I feel sure Lavinia has adopted this course of action to undermine me & others and to confuse Percy)
She did not say anything to this
It is apparent this is Lavinia's modus operandi
She made a big point that, she has been advised that, because the P of Att has not been registered it is not valid
I sd this is bullshit
I sd regn is only req’d if dealing in ppty and I gave the example that if I were selling Longueville on Percy's behalf pursuant to the PA Act, it MUST be registered
Otherwise, I sd the P of Att is perfectly legal + valid
When she could see that neither I nor Percy was going to weaken, she
1/ moved Percy's car into garage
(She had been using Percy's car, because apparently hers had broken down and was going to cost $3000 to fix up - She had driven out to Percy's home in Percy's car)
2/ handed over keys to car + garage + keys to unit
Percy then paid her $150, in Cash (3 x $50 bills) which was to cover today work + taxi fare back to city
She left at 3:30 pm and took with her my umbrella
I sat and had a cup of tea with Percy and left Percy at 4:00 pm and arrived back home at 4:30 pm
ENGAGED 4 HOURS
Also, while I was with Percy, but after Lavinia left, Percy rec'd a telephone call fr Kathey (his previous carer) in America
Kathey is coming out to Australia this week and Percy has agreed to let Kathey have the use of his car whilst back here in Australia seeing friends and family.
Percy after speaking I with Kathey put her onto me and we spoke for a very short time I told Kathey that Lavinia had been sacked.
It was more than a coincidence that Kathey rang Percy very shortly after Lavinia had left.
It looks very much like that they may be working together”
Under cross-examination the second defendant said that she was not present when Mr Murray arrived. She came later.
As to several surnames she explained that she had been married a number of times. I think this is a fair and reasonable explanation.
The second defendant denied that she was having trouble with Social Security or that she had admitted to that fact. She suggested that dealings with Social Security were essentially fake, somehow concocted through a conspiracy led by the plaintiff. There was no evidence to substantiate this conspiracy. There was also no evidence that the second defendant’s computer had been ‘hacked’ or that her telephone calls were being intercepted, as she claimed.
I think the events surrounding the second defendant’s termination on 14 September 2010 are powerful indications of a lack of credit on the second defendant’s part and, perhaps more importantly, of her desire to quickly take control of the deceased’s affairs.
Although not a point of major significance I note that in relation to the second defendant’s use of the deceased’s motorcar, as recorded in the file note, the note contradicts the second defendant’s evidence that she had made her own motor car available to Ms Collins-Kurrell, who was visiting from America.
There is another possible explanation for the deceased not being aware that the second defendant was to be terminated. This is that he had forgotten his previous discussion with Mr Murray. While this explanation to some extent supports the second defendant’s evidence, it also significantly contradicts her evidence of his cognitive capacity if he had forgotten his previous conversation with Mr Murray. I only raise this as a possible explanation. My firm conclusion is that Mr Murray was acting on instructions.
Another factor relevant to the second defendant’s termination arises from her repeated assertions that she never wanted a power of attorney (or the direction drafted by the barrister) and that her wishes were restricted to a guardianship, only to be triggered while overseas with the deceased.
The second defendant did not take her termination lightly. About a week after being ‘fired’, the deceased gave the second defendant a $10,000 severance payment. Six days later she was back in the deceased’s employ. Within about a year she had once again taken control of the deceased’s bank accounts.
I think some comments about Ms Collins-Kurrell are also important at this stage.
The plaintiff was diagnosed with pneumonia in November 2006, about the same time as the deceased was discharged from the War Memorial Hospital and went into residential care. Due to her ill-health, the plaintiff employed Ms Collins-Kurrell to assist the deceased. Ms Collins-Kurrell was a nurse’s aide with some experience with geriatric patients. She described herself currently as a geriatric nurse, a professional nanny, and a medical receptionist.
“I learnt that he had two daughters that he thought the world of, One, who went out on all limbs to give her father a quality of life and brought him close, to be near family. She spent countless weeks, looking for suitable property, put her life on hold and in the end her health went south. Her marriage and family unified and contributed to make this dear mans life tolerable and every spare minute was given to get legal aspects in order.”
“What is in your heart girl?
I remember talking to Laura of how one day she’ll get half of the assets from XXX street and her reply was ‘Nah, she can keep it*, I have no energy to fight* anymore..’ - Completly opposite to your behaviour. Her and Jeff have tirelessly turned themselves inside out and in the10 months I was there, Percy & I read nothing but abusive, threatening emails from yourself.”
Under cross-examination Ms Collins-Kurrell, entirely inconsistently with her email, said that the plaintiff had only acted in the deceased’s welfare for two months of her period of employment. She said she was “playing [the] sisters off against each other”. Besides there being no reason to do so, I would find it very strange indeed if she had made up her compliments of the plaintiff to achieve this purpose. There is no reason to not accept her laudatory statements about the plaintiff as being accurate.
Another area of concern with Ms Collins-Kurrell’s evidence concerned her activities at the time of the deceased sacking the second defendant. According to Ms Collins-Kurrell she was telephoned by the deceased after it occurred.
In her oral evidence the second defendant said she had telephoned Ms Collins-Kurrell “later in the day”.
Repeating from Mr Murray’s notes for the meeting when the second defendant was sacked:
“Also, while I was with Percy, but after Lavinia left, Percy rec’d a telephone call fr Kathey (his previous carer) in America.
Kathey is coming out to Australia this week and Percy has agreed to let Kathey have the use of his car whilst back here in Australia seeing friends and family.
Percy after speaking I with Kathey put her onto me and we spoke for a very short time I told Kathey that Lavinia had been sacked.
It was more than a coincidence that Kathey rang Percy very shortly after Lavinia had left.
It looks very much like that they may be working together”.
The second defendant phoning Ms Collins-Kurrell after her sacking gives support, I think, to Mr Murray’s conjecture.
Ms Collins-Kurrell first appeared as a beneficiary in the will of 14 December 2011. I have little doubt that she was aware of her inclusion and concerned to maintain her position as a beneficiary. I think this attitude may be behind her change of loyalty from supporting the plaintiff to a position of support for the defendants.
As a general statement I do not accept Ms Collins-Kurrell as a reliable witness. I distinguish reliability from honesty in particular because Ms Collins-Kurrell was at pains to point out to me at the commencement of her evidence that her memory was poor as a result of significant illnesses that she had suffered in recent years. She went to the extent of showing me a photograph of herself after surgery of her head and describing the radiation treatment she has had to endure.
A good deal was made by the defendants of the deceased’s capacity to travel overseas, sometimes on art appreciation trips with a Mr Carver. Before looking at Mr Carver’s evidence I think it appropriate to insert a table showing the various trips undertaken by the deceased.
| 2009 USA/UK trip | 14/6/2009 - 15/9/2009 | Accompanied by the second defendant | | 2011 Europe trip | 17/4/2011 - 25/8/2011 | Solo | | 2012 UK trip | 6/6/2012 - 27/8/2012 | Accompanied by the second defendant | | 2013 UK trip | 22/5/2013 - 6/8/2013 | Accompanied by the second defendant from 04/06/2013 | | 2014 Europe trip | 3/4/2014 - 25/7/2014 | Accompanied by the second defendant from 20/04/2014 | | 2015 Europe trip and cruise | 8/4/2015 - 14/6/2015 | Accompanied by the second defendant from 22/04/2015 | | 2016 UK / Poland trip | 22/6/2016 - 29/8/2016 | Accompanied by the second defendant |
Mr Carver is an art teacher who conducted art workshops both in New South Wales, interstate and overseas. He first met the deceased in 2009 and thereafter became a friend. The deceased attended a number of his workshops, which included overseas tours on three occasions.
Mr Carver is a beneficiary in each will from 2011 onwards. He receives the gift of “art books and art materials”. There is no suggestion that the gift in any way affected his evidence. He was not asked any questions about the gift.
The intent of the cross-examination was to establish that the deceased was not as independent as Mr Carver asserted in his affidavit. The cross-examination was perhaps successful in relation to the deceased’s physical abilities. It is clear that the deceased required assistance from time to time, that he would not have been able to carry his own luggage, that he used a wheelchair not only at airports and he probably would not have been comfortable or even capable of any extensive walking that might have been involved during the trips.
However, in respect of his cognitive ability, Mr Carver gave no ground. He was adamant that the deceased had a good memory, and no cognitive lapses were evident. Mr Carver was shown an itinerary (from Exhibit A, p 719) which suggests a very close control, via instructions, on the deceased’s activities. While the detail might suggest that the deceased needed direction as to his activities, they, at the same time, indicate that the deceased was able to follow instructions and in fact made notes of his own on the itinerary. Further, as pointed out by Mr Carver, the deceased made notes during the workshops including bringing to mind quotations from a famous artist (Mr Lloyd Rees).
In short, Mr Carver’s affidavit dated 25 October 2022, and his testimony are, at first sight, powerful evidence as to the unimpeded mental capacity of the deceased, at least up to the end of 2016. I also note that Mr Carver did not know the deceased prior to his pedestrian accident.
Mr Andrew Frank was called to give evidence but his time in the witness box was limited. This was because he made it clear that any answers he gave were unreliable because of his tendency to be “muddled”. This description applied to the answers he gave in chief and under examination from senior counsel for the second defendant.
Mr Frank is not only suffering from advanced cancer, but he also had a fall in St Vincent’s Hospital on 21 July 2024 causing a concussion and the consequent befuddlement of his memory.
After Mr Frank indicated limitations on his capacity to reliably answer questions, counsel for the plaintiff made an application that his evidence be excluded under s 13 of the Evidence Act 1995 (NSW). I refused the application which was probably anyway doomed to failure because of s 13(7). Instead, I asked counsel for the defendants whether they would make any submission that there had been a failure to cross-examine Mr Frank. In asking the question I also made it clear that a result of an affirmative answer would also include allowing the plaintiff to make a submission that less weight should be given to Mr Frank’s affidavits dated respectively 19 October 2022 and 5 December 2022, because he had not been cross-examined.
“His experience with Mr Waters is also substantially increased, as is his visibility of their relationship. Now, I say that it is a very significant matter because, your Honour, I'm asking the Court to place significant weight on Mr Frank as an experienced [solicitor] who is experienced in dealing with elderly client, and as the cases say these solicitors are tuned to identifying these red flags if and when they arise, and he had no concerns. It's not preferable.”
It is very difficult to place “significant weight” on Mr Frank’s evidence when his evidence is at least controversial, and he has not been cross-examined. Some of the controversial aspects of Mr Frank’s affidavit include the following:
Mr Frank said he was aware of the New South Wales Law Society’s guidelines for determining testamentary capacity. He was also aware of Banks v Goodfellow (1870) LR 5 QB 549, and he had advised “many clients in relation to the preparation of their wills …”
Mr Frank developed not only a solicitor-client relationship with the deceased but also a friendship, which saw him having regular contact with the deceased, the suggestion being that he had an ongoing appreciation of the deceased’s cognitive capacity and also the ‘firmness’ of his mind when, for example, stating that the second defendant should remain present when wills were being discussed or signed.
I set out below the suggestions of Kunc J in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007. The very first suggestion is that the client should be interviewed alone, followed closely by “A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.”
Mr Frank was well aware of the second defendant’s presence and assistance to the deceased. He or his office communicated with her from time to time and no doubt she would have been present at some of the social meetings he had with the deceased. While on the one hand his familiarity with the deceased and the second defendant might have led him to be comfortable with her presence when dealing with a will, he would also have been aware that on each occasion that she was present it was also an occasion when the relevant will was increasing her share in the estate.
The familiarity he might have noticed between the deceased and the second defendant, bearing in mind that she was a paid carer, should undoubtedly have raised a red flag as to the possibility of undue influence, and certainly of the presence of suspicious circumstances surrounding the making of the wills.
In addition, while it was appropriate for Mr Frank to ask questions of the deceased such as: “Why are you increasing Lavinia’s share. This will reduce your daughter’s share?”, to ask such questions in the presence of the second defendant was surely to invite, or at least not preclude, an answer in the second defendant’s favour.
My conclusion in relation to Mr Frank is that he does not assist the defendants’ case but, to a large degree, bolsters the plaintiff’s assertions relating to suspicious circumstances and undue influence.
I agree with the submission made by the plaintiff that rather than Mr Frank establishing an appropriate manner of dealing with the execution of the wills from 2011, he effectively overlooked the suggestions that had been made in .
The plaintiff relied on an affidavit of Professor Carmelle Peisah dated 25 March 2025, which attaches a report completed in March 2025. Prof Peisah is a psychiatrist specialising in old age. Based on her curriculum vitae she is very well qualified in the areas about which she gives an opinion. This specifically includes a long-held involvement in “treatment of the behavioural and psychological symptoms of dementia”. I mention this as a contrast to the doctors put forward by the defendants, Drs Gupta, and Benito, but in particular Dr Gupta. I have not referred to them as experts because they were not tendered as such. Rather, they were tendered as providing a description of the treatment provided by the doctors to the deceased. The distinction is important because the doctors cannot be relied upon as providing expert testimony. I also note that neither of them acknowledged the expert code of conduct under the court rules.
On the contrary side, Drs Gupta and Benito had the advantage of having actually examined the deceased whereas Prof Peisah bases her opinions retrospectively on the documentary material given to her. Hallen J said in Starr v Miller*; Starr v Miller* [2021] NSWSC 426 at [487]:
“… Unlike some other probate cases in which experts called provide an opinion on the deceased's capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence in the present case was given by doctors, and others, who had contact with the deceased. Each of Dr Cetiner, Dr Guerin and Ms Christopherson, whose evidence, or documents are relied upon, had the advantage of having personally carried out interviews, examinations and clinical assessments of the deceased. The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe, and assess, the deceased first-hand: Nicholson v Knaggs, at [39] (Vickery J).”
Prof Peisah pointed out an advantage to the retrospective examiner of having, as she did, extensive material which would not have been available to the treating doctor. In addition, as pointed out by Prof Peisah in her report, a treating doctor is generally only concerned with the patient’s presenting problem and is not concerned with testamentary capacity which will have nothing to do with why the doctor is seeing the patient.
Prof Peisah’s report is comprehensive and constructed on the basis of addressing each of the wills executed by the deceased. Because she addressed each will separately there is a good deal of repetition of her opinion where appropriate. She accepted that she had cut and pasted portions of her report but did so in the interests of efficiency. No criticism for doing so can be levelled against her.
Prof Peisah’s vast experience extends to examinations of testamentary capacity over many years. Her claim to be a world leader in the field is corroborated by her curriculum vitae.
Prof Peisah conducted a close examination of the deceased’s medical records. She referred to a CT brain scan following the motor vehicle accident on 30 August 2006 which “showed presence of bilateral periventricular low attenuation probably due to chronic small vessel ischaemia”. Prof Peisah then referred to an examination by Prof Cameron on 31 October 2007 where some difficulty with memory was reported. The deceased was treated for depression in 2008.
The Myhealth records for 16 January 2012 indicate that the second defendant brought the deceased to his general practitioner feeling unwell and seemingly “confused and slow thinking”. The reason for the visit is given as “confusion” and the deceased was referred to the Emergency Department at Norwest Private Hospital.
The second defendant took the deceased to the private hospital where an MRI of his brain was performed on 18 January. The MRI report (Exhibit A, p 3939) states:
“Periventricular and deep white matter foci of FLAIR hyperintense signal are present in keeping with chronic small vessel lschaemic gliosis.”
“On Neurology review on the 22nd January, 2012 he had 1/3 recall on memory testing, improved to 2/3 with prompting. He was discharged 23rd January 2012 …
On the 17th February 2012 he was reviewed by rehabilitation physician Dr Gerard, who noted that while his confusion had improved significantly, he reported some difficulty with high level language tasks such as naming and word finding, as well as not being as sharp as usual, and difficulty using computer and other language devices. He was currently receiving assistance with shopping and cleaning. Physical examination yielded mildly impaired coordination on the right side on cerebellar and coordination testing … On the 21st February, 2012, he scored 22/30 on a Rowland Universal Dementia Assessment Scale (RUDAS), losing two points in judgment and 6 points in memory recall.”
Prof Peisah was cross-examined, on behalf of the second defendant, for almost an entire day. It is not a criticism of the cross-examiner to say that he made little headway in challenging Prof Peisah’s views.
Prof Peisah, having reviewed the deceased’s medical history, was adamant that he was suffering from a progressive cerebrovascular neurodegenerative disease, which had commenced by 2009. She stated:
“Complicating pre-existing cerebrovascular neurodegenerative disease, the car accident and its sequalae heralded a progressively deteriorating brain disorder. Specifically, by 2009, it is more probable than not that Mt Waters had cerebrovascular neurodegenerative disease, compounded by the effects of past closed head injury and multiple complicated surgeries associated with his earlier car accident. Similarly, on or around December 2011, Mr Waters suffered a disorder of mind due to significant cerebrovascular neurodegenerative disease, compounded by the effects of past closed head injury and multiple complicated surgeries. By November 2016 and October 2017, it is probable that Mr Waters had a neurocognitive disorder likely due to cerebrovascular disease. By 2019, it is probable that Mr Waters was suffering from a Major Neurocognitive disorder probably due to vascular disease, or Vascular dementia.”
“… It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
Prof Peisah’s approach was to examine each will from 2009 and accord to it certain conclusions relevant, in her opinion, to the deceased’s testamentary capacity:
Awareness and appreciation of the significance of the act of making a will.
Understanding the nature, and extent of his estate relevant to the distribution of the estate.
An awareness of persons who “did NOT have a claim on his bounty.”
The probability of whether the deceased could recall, identify, evaluate, and discriminate between the respective strengths of the claims of those persons who might reasonably have been thought to have a claim on his testamentary bounty.
Whether there was evidence that delusions or hallucinations influenced his disposition.
The following is a comparative summary of the above conclusions:
| Is it more probable than not that Dr Waters… | 2009 Will | 2011 Will | 2016 Will | 2017 Will | 2019 Will | | (i) had an awareness and appreciation of the significance of the act of making a Will | Yes | Probably | Probably | Probably | Probably | | (ii) understood the nature, and extent of his estate relevant to the distribution | Broadly, yes | Not certain | Probably not | Probably not | Probably not | | (iii) had an awareness of those who might reasonably have been thought to have a claim on his bounty; | Yes | Yes BUT probably lacked awareness of those who did NOT have a claim on his bounty | Yes BUT probably lacked awareness of those who did NOT have a claim on his bounty | Yes BUT probably lacked awareness of those who did NOT have a claim on his bounty | Yes BUT probably lacked awareness of those who did NOT have a claim on his bounty | | (iv) could recall, identify, evaluate, and discriminate between the respective strengths of the claims of his potential beneficiaries | Yes | Probably not | Probably not | Probably not | Probably not | | (v) was influenced by delusions or hallucinations | No evidence | No evidence | No evidence | No evidence | No evidence | | Knowledge and Approval Did the will express Dr Waters’ real intentions and was it properly executed after being prepared by a solicitor and read over to him? | Cannot comment on Knowledge and Approval | Yes BUT more may be required to establish understanding than merely establishing that the will was read to, or by the testator, and Dr Waters may not have fully appreciated or understood what he was executing | Yes BUT more may be required to establish understanding than merely establishing that the will was read to, or by the testator, and Dr Waters may not have fully appreciated or understood what he was executing | Yes BUT more may be required to establish understanding than merely establishing that the will was read to, or by the testator, and Dr Waters may not have fully appreciated or understood what he was executing | Yes BUT more may be required to establish understanding than merely establishing that the will was read to, or by the testator, and Dr Waters may not have fully appreciated or understood what he was executing | | Did the evidence suggest risk factors for suspicious circumstances? | Other than a disorder of mind, no | Yes, several risk factors | Yes, several risk factors | Yes, several risk factors | Yes, several risk factors | | Undue Influence Did the evidence suggest risk factors for undue influence? | Yes, several risk factors, but “these were mitigated by lack of evidence regarding their effect on the will-making process, beyond the choice of Executor”. | Yes, an extreme risk of undue influence | Yes, an extreme risk of undue influence | Yes, an extreme risk of undue influence | Yes, an extreme risk of undue influence |
In the course of her report Prof Peisah from time to time used the phrase “inconcluded”. She said she did not think this was an appropriate phrase but used it to mean ‘not certain’.
Prof Peisah also addressed her use of the phrase “did NOT have a claim on his bounty”. She was referring to a paid carer being a person who might be entitled to benefit under a will. She felt very strongly and said she was backed up by the entire aged care industry and international definitions of elder abuse, that a paid carer should not be a beneficiary. She did make it clear that this would not include a minor gift as an acknowledgement of carer services, but this was to be distinguished from substantial benefits under a will.
Prof Peisah agreed that a person with a competent testamentary capacity might include or exclude anyone as a beneficiary. But she emphasised that competence and freedom of decision must be unfettered. She said that a person’s ability to appreciate family is lost in the early stages of dementia. She said that the decisions about the second defendant were based on “an aggrandisement” of her contributions. While the deceased might have felt that the second defendant had made a significant contribution, that feeling might not necessarily have been competently made. She added that it was never competent to appraise relationships against a background of undue influence and neuro-cognitive factors.
Prof Peisah was taken to her use of the phrase “in thrall”. She said this referred to an unfounded admiration of the second defendant. She felt the deceased had been “emotionally captive” to the second defendant. This was demonstrated by his extensive need for her for such matters as going to doctors, lawyers, and almost all activities.
It was persistently put to Prof Peisah that in the situation of the deceased being alienated from his daughters and receiving care and assistance from the second defendant, there was no reason why she should not benefit under his will. Prof Peisah said that the provision of services, no matter how good, did not necessarily generate the need to make significant gifts in a will. She gave the example of a travel agent who arranges a trip, perhaps with the same detail as the second defendant had done for the deceased. Prof Peisah said that while she might be grateful to the travel agent she would not include her in her will. Perhaps a better example of an unremarkable gift in appreciation of services or friendship is the giving of art books and materials to Mr Carver.
Prof Peisah pointed to the extreme radical departure from the 2009 will to the 2019 will. She highlighted the difference in complexity of the wills as time passed. She referred to the Shulman graph as demonstrating the effect of complexity on testamentary capacity.
Prof Peisah emphasised that while the deceased may have been good with calculations that was not necessarily an indication of competency.
“WITNESS: That kind of lay evidence I usually discount for two reasons: number 1, as I said before, dementia is diagnosed by what people ‑ based on a deficit in cognitive function. Often, only in one ‑ it can be in one area, so it's diagnosed based on what a person can't do, not what they can do. So the fact that he could use the computer, that he could still paint and still participate actively, doesn't negate a diagnosis of dementia at all. Contrary, to allay expectation.
As I said, dementia is based on, at minimum, one area of cognitive decline; memory, judgment, reasoning, language, what area. The other reason why I often discount that, is that lay observations of people with dementia, are usually an interpretation by the lay person - are usually discounted because impairment observant to the lay mind, such as social skill change or language, usually happens late. So I’ll put it the other way, preservation of language skills, preservation of manners, preservation of social skills are usually lost quite late in a dementia.
So a layperson with just observation would not ever pick up dementia. Dementia is not a passive diagnosis, so looking at person you can’t say, ‘Oh, that person’s got dementia’ which is the same reason why many GPs and many doctors miss dementia. It’s an active diagnosis based on screening, so a layperson might - he probably, and it seems to me that he was a very dignified, respectful gentleman that - with preserved social language skills and indeed, art skills, and as you see very clearly, mathematical skills into his diagnosis of dementia - that would not have been picked up by a layperson.”
“In theory of course courts are not bound by the testimony of witnesses, lay or for that matter expert, even if there has been no cross examination. It goes without saying that testamentary capacity is a matter of fact and degree, but medical science has moved on exponentially since Banks v Goodfellow. The availability of sophisticated technology together with a high level of expertise makes the search for a ‘connection’ between any cognitive impairment and a disposition a good deal easier to identify. This is an area no longer in need of judicial notice but rather that of expert evidence paying due deference to relevant facts. In a case such as this, especially given the way it was conducted, the medical evidence in particular called by the defendant is to be given very considerable weight.”
“Such expert witnesses may be particularly convincing witnesses who give appropriate concessions, are frank in their answers, clearly intend to assist the Court and might be described essentially as exemplary expert witnesses. Nonetheless, for various reasons (such as being briefed with incomplete available medical records) they may give evidence which the judge finds to be of limited value in the case: e.g. Anderson v Yongpairojwong [2023] NSWSC 1359 at [160]-[161] per Griffiths AJ; Anderson v Yongpairojwong [2024] NSWCA 220 at [138]-[159] per Bell CJ, [180] per Leeming JA and [186] per Mitchelmore JA.”
I thought Prof Peisah was a witness of the first type described by Meek J, namely that she was convincing, made appropriate concessions, was frank in her answers and might be described as an exemplary expert witness. I accept that Prof Peisah had a strong view about paid carers being beneficiaries (other than to a limited extent) and that her views on paid carers are not relevant to the establishment, or otherwise, of testamentary capacity. However, I did not think that Prof Peisah’s strong expressions about paid carers tainted her opinions relevant to testamentary capacity, in particular, her conclusions about the deceased’s cognitive capacity.
Suffice to say I accept the opinions of Prof Peisah.
The third defendant relied on an affidavit of Dr Amit Gupta dated 6 March 2023. Dr Gupta was cross-examined. Dr Gupta saw the deceased on two occasions (9 May 2020 and 18 July 2020) at the request of the deceased’s general practitioner, Dr Avinash Tiwari (from Myhealth Medical Centre Northmead).
Dr Gupta, in his affidavit, seems to go out of his way to emphasise that he was not seeing the deceased in respect of cognitive issues, primarily because Dr Tiwari had not raised cognitive issues in his referral. In his affidavit Dr Gupta says:
“… I had no concerns with Percy’s cognitive capacity. In addition, the referral letter I received previously from Dr Tiwari did not raise any concerns or issues in respect of Percy’s cognitive capacity.”
I note that in Dr Gupta’s consultation notes the purpose of the visit is “Cognitive disorder”. I accept his explanation that this entry was made because of his inexperience with the software he was using. Dr Gupta, in 2020, was “very new to private practice as a doctor” and in his first year as a consultant.
At its highest, Dr Gupta considered that “Percy might have some mild cognitive impairment which could be a possible early mild dementia.” This possibility is contradicted by his reports back to Dr Tiwari following the consultations.
Dr Gupta said his reports were likely to be more accurate than his affidavit. In his report of 9 May 2020, Dr Gupta states:
“Percy Waters is a pleasant 101-year-old man from home who has a diagnosis most consistent with mild mixed-type dementia. His main issue is his multiple functional issues, including some non-compliance with his medication such as Seretide, his poor appetite and recurring falls.”
I understand Seretide is a medication to combat asthma and lung conditions. More importantly, under cross-examination, Dr Gupta agreed that mild mixed-type dementia might affect a person’s executive function and that it could develop over a number of years.
In his second report to Dr Tiwari, Dr Gupta, consistent with his first report and again inconsistent with his affidavit, stated:
“Percy Waters is a 101 year old man from home with diagnosis likely consistent with mild mixed type dementia with high risk of falls which is multifactorial from impaired balance, osteoarthritis and overall frailty. Lavinia has been under increasing carer stress due to Percy refusing formal services.”
I put some questions to Dr Gupta about the likelihood that a person suffering from dementia would agree to facts suggested in the form of leading questions, whether correct or not. Dr Gupta confirmed this suggestion. I asked the question because there had been evidence that when the deceased had signed his wills, the solicitor assisting him at the execution of the wills had confirmed the deceased’s instructions through leading questions as to the contents of the wills.
For example, in the preparation of the 2016 will, Mr Frank’s affidavit (from [106]) describes a series of leading questions in confirming the deceased’s instructions. Similarly, there is a string of leading questions relating to the 2019 will (Mr Frank’s affidavit from [157]). Approaching the matter in this way highlights the warning given by Kunc J in Ryan v Dalton where his Honour provided some guidelines to solicitors when supervising the execution of a will. His Honour said, from [106]:
“106. Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.
107. It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:
(1) The client should always be interviewed alone. If an interpreter is required, ideally the interpreter should not be a family member or proposed beneficiary.
(2) A solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.
(3) In all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note.
(4) In case of anyone:
(a) over 70;
(b) being cared for by someone;
(c) who resides in a nursing home or similar facility; or
(d) about whom for any other reason the solicitor might have concern about capacity,
the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.
(5) Where there is any doubt about a client’s capacity, then the process set out in sub-paragraph (3) above should be repeated when presenting the draft will to the client for execution. The practice of simply reading the provisions to a client and seeking his or her assent should be avoided.
- I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely.” (Underlining added for emphasis)
Besides the use of leading questions (sometimes referred to as the Noddy Syndrome), some of the other guidelines (such as interviewing the client alone and taking detailed notes) are also relevant here, but will be returned to below.
I note that Prof Peisah said that for people with a cognitive deficit such as dementia ‘Yes’ is not a way of affirming a proposition, although it might reflect some understanding.
Dr Gupta was taken to a letter from a general practitioner at the Twinkle Medical Centre to a Dr Weber dated 31 January 2012. Dr Gupta agreed that based on the contents of the letter it was possible that the deceased was then suffering from dementia. Dr Gupta also commented on MMSE (Mini Mental State Examination) scores to the effect that the scores can be misleading and may not necessarily disclose an underlying cognitive problem.
In re-examination Dr Gupta said that, based on his recollection of the consultations, the deceased did nothing to indicate that he did not understand the matters being discussed. Dr Gupta thought that the deceased was well capable of conducting a conversation.
Dr Gupta remembered that the deceased had said that he did not require extra physical assistance to that he was receiving, whereas he clearly did. This could be an indication of a lack of cognitive function as much as a statement of desired independence.
Overall, I did not find Dr Gupta’s affidavit of much assistance. His reports, as I think he conceded, are more reliable and, in respect of cognitive matters, they suggest more impairment than the “possible early mild dementia” referred to in the affidavit. I also, in comparing the weight of his reports, take into account his inexperience, as at 2020, as a geriatrician.
Finally, in respect of Dr Gupta, his affidavit does not include an acknowledgment of the expert code of conduct. No application was made to excuse this failing. To the extent that his affidavit is a record of his treatment, the code is not relevant. But to the extent that his expert opinion is being relied upon, the opinion is severely weakened by him not complying with the court rules for experts.
Dr Dino Benito is also a geriatrician. His affidavit is dated 15 March 2023. He has also not acknowledged the code of conduct, limiting his opinion essentially to his treatment of the deceased. I also note that he signed the death certificate for the deceased in which the primary cause of death was stated to be cardiac arrhythmia. The entry for “Other significant conditions” includes “Dementia”.
Dr Benito treated the deceased during three hospital visits, each at Norwest Private Hospital. On 10 July 2019, the deceased was admitted to the hospital for six days, following a fall. A diagnosis of vertigo was made. An MRI scan of the deceased’s brain was carried out to exclude a stroke. Dr Benito does not describe the result of the scan.
“[Plaintiff]: ‘Why do you want to sell XXXXX Street? This is so sudden! You always said that it was for your girls as Mum had wanted. You supported our wishes to keep it and you agreed it was the right thing to do. You’ve got sufficient funds. You’ve just received a compensation payment from the accident. Why are you doing this?’
Deceased: ‘It’s not my decision’.”
The inference from the deceased’s response is that the decision was taken by someone else, possibly the second defendant.
Mrs Goss expressed her concerns in a similar fashion to the plaintiff. She stated in her affidavit:
“The XXXXX Street property sold in October 2008. I was desperate not to lose the family home. It was too precious. Throughout my life I was repeatedly promised that it was to go to me and my sister. Upon being informed by my sister that the sale was imminent, I desperately made attempts to be able to purchase it.”
The second defendant denied making the decision to sell the property but did agree that she had organised a friend, Ms Sally Hampshire, to be the real estate agent. This is not to suggest that Ms Hampshire was other than a competent real estate agent but only that the second defendant brought in her friend to conduct the sale.
It is noteworthy however that before the engagement of Ms Hampshire a proposal had been sought from L. J. Hooker Chatswood. A real estate agent addressed his proposal directly to the second defendant, stating:
“Dear Ms Williment-Brown,
Thank you for the opportunity to present these detailed marketing recommendations to you. We firmly believe as a vendor, the more familiar you are with the process, the easier the sale will progress …
We would be delighted to work with you in this most important matter.”
The second defendant insisted that the decision to sell was made by the deceased. She referred to “illegal immigrants” living in the property, and she said she had obtained advice from a “police person” about the immigrants. She was distinctly reluctant to name the source of her advice.
The second defendant agreed that the deceased “had indicated he was quite happy with the tenants in the property be[cause] it gave him surplus income to help his living expenses”. But she denied that she had “wanted him to liquidate the property”.
The property was sold at auction on 4 October 2008. There was a single bidder who paid $1.23 million. The plaintiff stated that she was “devastated by the sale”.
The second defendant did not receive any part of the sale price. While there is a possible inference that she wanted the proceeds of the sale to be isolated from the plaintiff and her sister, I do not think I can make a finding to that effect. However, I think I can find that the second defendant took an active part in the sale of the property and did so without any consultation (albeit giving some prior notice) with the plaintiff and her sister.
Remembering that the second defendant had commenced her engagement with the deceased in March 2008 there seems to have been a rapid development in her influence and a marked inconsistency with the duties of a carer.
| Gift/Bonus | 21/12/2009 | $5,000 | | Birthday gift | 03/02/2010 | $200 | | Car repair | 20/05/2010 | $374 | | Bonus | 30/07/2010 | $3,000 | | Severance pay | 21/09/2010 | $10,000 | | Gift re a car | 17/12/2011 | $2,000 | | Birthday present | 06/02/2013 | $200 | | Christmas gift | 10/12/2013 | $10,000 | | Birthday present | 04/02/2016 | $830 | | Christmas Gift | 10/12/2016 | $1,200 | | Birthday present | 06/02/2017 | $1,000 | | Car payment | 01/03/2018 | $15,000 | | 2019 London trip (UK pension and military pension) | 16/03/2019-14/04/2019 | Airfare: $8,223.96 Plus Upkeep, internal UK travel, and accommodation | | Christmas Gift | 27/12/2019 | $1,000 | | Birthday gift | 10/02/2020 | $1,000 |
I have excluded, as benefits to the second defendant, the overseas trips where she accompanied the deceased. On the assumption she was rendering carer services to the deceased it is appropriate that the second defendant’s expenses and wages should have been met. There is perhaps some criticism to be levelled for 24-hour carer services but I accept that being ‘on standby’ is a legitimate basis for payment.
Most of the benefits are at first sight inconsistent with the duties of a carer, although it must be accepted that a person is entitled to be generous to another person, in particular if appreciative of that person’s services.
Nevertheless, I think some of the payments are inconsistent with even a beneficent person to a carer. Examples are the $5000 gift in December 2009 and the $10,000 on 21 September 2010 (seven days after the termination of employment and six days before being re-hired).
Another oddity is the extent of birthday and Christmas presents.
The fully funded trip to London in 2019 however is particularly significant because the second defendant travelled alone ostensibly to resolve issues concerning the deceased’s pension. The second defendant spent almost a month on a fully paid trip for this endeavour.
- First, as the New South Wales Court of Appeal has made clear, the Banks v Goodfellow test poses a legal, rather than a medical question: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. That is to say, while medical evidence going to any of the requirements set out in the test may be highly relevant, it is not necessarily determinative. Rather, the question is one to be determined by ‘commonsense judicial judgment on the basis of the whole of the evidence’: Zorbas per Hodgson JA at [65].
- Second, the principle of freedom of testation means that neither eccentricity nor capriciousness is a sufficient ground to conclude that the testator lacked capacity. As Gleeson CJ noted in Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 (at 291), ‘[t]estamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards.’”
The parties agreed that should none of the wills made after 2009 be admitted to probate, then a grant should be made in respect of the 2009 will. This agreement took out of contention the validity of the 2009 will.
Obviously if I find that the 2019 will was properly admitted to probate then there is no need to consider any of the earlier wills. If the 2019 will fails, then I will move to the 2017 will and so on down the line.
Starting with the 2019 will, being the last in time and in respect of which there is already a grant of probate in common form, the will was executed when the deceased was 100 years of age. According to Prof Peisah, at this time the deceased probably had an awareness and appreciation of the significance of making a will, he probably did not have a broad awareness of the nature and extent of his estate, he probably had an awareness of those persons who might have a claim on the estate but he probably lacked awareness of those persons who did not have a claim on the estate, he probably could not identify, evaluate and discriminate between the respective strengths of the claims of his potential beneficiaries, there was no evidence of delusions or hallucinations influencing his disposition, there were several risk factors in place indicating suspicious circumstances and there was an extreme risk of undue influence.
The primary counter to Prof Peisah’s opinion comes from the observations of laypersons as to the apparent cognitive capacity of the deceased. These observations include his capacity to travel, both overseas and alone, his participation in primarily art activities, his self-declared independence and desire to live independently, his word skills (often included in detailed notes) and the absence of any obvious signs of cognitive incapacity.
There are some references to difficulties with short-term memory and there is a diagnosis of mild-mixed dementia in 2020. None of these conditions, without more, necessarily preclude testamentary capacity.
Returning to the observations of laypersons, they have been made by Ms Collins-Kurrell, the second defendant, Mr Frank, and Mr Carver. I have already made comments about these witnesses. I have not found the two paid carers to have been reliable witnesses. Diminished weight must be placed on Mr Frank’s evidence because he was not cross-examined.
Mr Carver was however, a reliable witness and his observations are detailed and compelling. His evidence about the deceased’s participation in the art classes including being able to travel, make notes, and engage in sensible conversation are powerful factors in the defendants’ favour.
As powerful as these factors are, I do not think they overcome Prof Peisah’s opinion. Prof Peisah was very clear that cognitive capacity, and in particular dementia, are not measured by what the subject can do, but rather what the subject cannot do. The deceased had the benefit of powers of attorney or powers of guardianship bestowed upon other persons, presumably for good reason. In 2019, and in every instance of making a will since 2011, the deceased had the presence and assistance of the second defendant.
“The law does not prescribe any fixed standard for capacity as requisite for the validity of all transactions. It is task-specific. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind to be capable of understanding the general nature of what he or she is doing by his or her participation: Gibbons at 437. Thus, the mental capacity required by the law in respect of any instrument may be described as the capacity to understand the nature of that transaction when it is explained: Gibbons at 438.”
I think that when the 2019 will was executed the deceased did not have the appropriate “soundness of mind to be capable of understanding the general nature” of what he was doing. Not only was he subject to the use of leading questions to ascertain his understanding, but he was also in the presence of the second defendant, both circumstances which, even ignoring questions of influence, mitigate against a finding that the deceased was acting independently and with a sound mind.
The same conclusions as expressed in the previous paragraph will apply to the 2017 and 2016 wills. As far as Prof Peisah’s opinion extends to the 2011 will, there is a slight difference of opinion in relation to whether the deceased could “understand the nature and extent of his estate relevant to the distribution”. This qualification does not affect my overall assessment of testamentary capacity, in particular because, as will be seen below, my conclusions arising from the existence of suspicious circumstances apply to all of the wills from 2011.
“… 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 … .” (footnotes omitted)
“The fact that a person is a substantial beneficiary who wrote and took part in the preparation of the will is a usual and familiar instance of a suspicious circumstance and calls for vigilant and close examination of the evidence as to the testator’s understanding and approval of their will … .” (footnotes omitted)
In a similar vein is the presence of the second defendant at all important meetings and executions of the wills. It can only be a suspicious circumstance that a person increasingly benefiting from a will is present with the testator when the wills are made.
In Mekhail v Hana; Mekail v Hana [2019] NSWCA 197, Leeming JA said, at [131]:”
“Where as here those taking a benefit under a will have played a part in its preparation, it is for the propounder to show ‘the righteousness of the transaction’, namely, that the testator or testatrix knew the contents of the will and appreciated its effect, so that it can be said that the will contains the real intention and reflects the true will of the testator or testatrix. The same is true where there are ‘suspicious circumstances’ such as those mentioned by the primary judge, including the erroneous description of Georgette as Nadia’s daughter, and the erroneous belief of Mr Liondos. (I return below to what precisely are ‘suspicious circumstances’.)”
The deceased certainly took part in the preparation of the will, but so too did the second defendant and her presence at the execution of each will combined with the ever climbing benefit to her must qualify as suspicious circumstances triggering the obligation described by Leeming JA.
Although not connected to the execution of any will, there were other indications of the influence of the second defendant which, to the extent they were known by Mr Frank, should have put him on notice that the circumstances surrounding the wills were suspicious. For example, although her wage was not great, the second defendant’s qualifications were minimal and she was being paid for unusual matters, some of which have been detailed above and which fall well outside the ‘normal’ scope of a patient-carer relationship.
The use of the second defendant’s friend, Ms Sally Hampshire, as the real estate agent for the sale of the Chatswood property is another indication of the influence that the second defendant had over the deceased’s affairs.
The circumstances I have referred to above all suggest undue influence, but yet Mr Frank, if he was aware of the circumstances, saw no such influence nor was suspicious. To the contrary, apparently because he had become familiar with the deceased, he had no apparent hesitation in preparing and supervising the making of the wills; if anything he seemed to become more comfortable over time with the process.
There may be cases where reading an intended will to a testator will satisfy the onus to prove that the testator knew and approved the contents of the will. I do not think this is such a case. Firstly, the presence of the second defendant mitigates against the efficacy of a simple reading of the will. The unquestionable influence of the second defendant, even if not undue, was such that the deceased might well have been reluctant to intervene.
In addition, there is the growing complexity of the wills from a fairly simple document in 2009 to an 18-page document by 2019, with not only an extended range of beneficiaries but the inclusion of trusts. These types of considerations were emphasised by Meagher JA in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47]-[48]:
“47. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be ‘the most satisfactory evidence’ of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose ‘as heavy a burden as can be imagined’. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42].
48. In this context the statements 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: see Worth v Clasohm at 453. 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: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. 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] HCA 34; (1938) 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.”
I do not accept that the third defendant has established that the deceased had an accurate knowledge of the contents of the wills, let alone approved of them. Put another way, I am not satisfied that the defendants have dispelled the obvious inference of suspicious circumstances to the extent that it cannot be said the last four wills reflected the intent of the deceased.
In reaching this conclusion I am particularly cognisant of where the onus of proof lies. In respect of the negation of suspicious circumstances, the onus is on the propounder of the will.
The starting point here is the recognition that the allegation is one of probate undue influence and not equitable undue influence. The onus is squarely on the person attacking the will. The defendants submitted that probate undue influence was very difficult to establish, had rarely been established, and was certainly not established in the present case.
I agree that the onus is not easily overcome. I also agree with Prof Peisah that there was “an extreme risk of undue influence” in every will from 2011. As to the number of cases where undue influence has been found, I think that is a function of the weight of the onus rather than any type of bar to an allegation of probate undue influence succeeding. I am satisfied that probate undue influence has been proven in this case.
The defendants submitted that in order to establish probate undue influence there must have been coercion of the testator. I was referred to Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121-122, where Powell J set out the ingredients for probate undue influence. He included:
The onus lies on the person who asserts the undue influence.
“... the influence which must be shown to avoid a will must amount to force or coercion destroying free agency.”
“… where what is relied upon is a purely circumstantial case … the duty of the defendant goes further than merely establishing the circumstances from which it is sought to have the inference drawn.”
The plaintiff accepts that her allegations of undue influence emanate from a circumstantial case.
In Boyce v Bunce [2015] NSWSC 1924, Lindsay J, describing the distinction between probate undue influence and equitable undue influence, said this, at [56]-[57]:
“56. In a probate suit, there is no presumption of undue influence. Leaving to one side the observation that, in probate proceedings, an allegation of undue influence requires proof of facts tantamount to coercion, a party who alleges undue influence in probate bears the onus of proving it, without the benefit of a presumption of undue influence: Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 1365; 14 BPR 26,867 at [63]-[64]; Winte**r v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121D; Hall v Hal**l (1868) LR 1 P&D 481; Parfitt v Lawless (1872) LR 2 P&D 462 at 468-470. This approach reflects a robust acceptance that, in common experience and without criticism, a person might be subjected to social pressures falling short of coercion in the making of a will. The focus for attention is on the essential question whether a will is that of a free and capable testator. As a will takes effect only on or after the death of testator, the court has no concern for his or her subsequent welfare, as distinct from the interests of those beneficially entitled to a deceased estate.
57. By way of contrast, upon an exercise of equitable jurisdiction relating to a disposition of property inter vivos, the Court may be concerned about the ongoing welfare of the disponor; and, in its concern to prevent or redress unconscientious conduct, it allows for there to be a presumption of undue influence in some circumstances. When such a presumption arises it may be rebutted by proof that the disponor: (a) knew and understood what he or she was doing; and (b) was acting independently of any influence arising from the ascendancy of the disponee over the disponor. Proof of the first element, without proof of the second, is insufficient to rebut the presumption: Quek v Beggs (1990) 5 BPR [97405] at 11,765; Bridgewater v Leahy (1998) 194 CLR 457 at 475 [63]. Equity’s presumption has a prescriptive element designed to enforce a standard of behaviour, quite distinct from the bare, empirical character of probate presumptions.”
“There are two essential points here. First, the High Court opined that ‘probate undue influence’ focuses upon the actual state of mind of a testator in determination of the ultimate question whether a particular instrument was the last will (a formal expression of testamentary intention) of a free and capable testator, rather than the quality of that intention and how it was formed. ‘Equitable undue influence’, by contrast, is concerned with both the quality of a testator’s intention and how it was formed.”
“463. In the probate jurisdiction, undue influence is different in conception to the equitable principle, whereby a transaction may be vitiated by an unconscionable exercise of a relationship of influence, and requires something in the nature of coercion in causing the testator to make the will. Coercion may be shown to exist without proof of violence or the threat of violence, or some physical overpowering of the testator’s hand. The question is whether the will of the testator was in fact overborne so ‘that [the] testator did not, by reason of undue influence, know and approve of the contents of the instrument propounded as a testamentary instrument’: Bridgewater v Leahy (1998) 194 CLR 457 at [62]; [1998] HCA 66 per Gaudron, Gummow and Kirby JJ.
464. As Powell J (as his Honour then was) said in Winter v Crichton (1991) 23 NSWLR 116 at 121, ‘the influence which must be shown to avoid a will must amount to force or coercion destroying free agency’. In repeating the charge given by Sir James Hannen P to the jury in Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83, Powell J at 122 referred to that part of the charge where his Lordship said:
… The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion, though not actual violence…
465. In the remainder of the extract from the charge to the jury, his Lordship stated that it is not undue influence if it ‘is shown to be the result of the wish and will of the testator at the time’.”
“In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.”
“The doctrine of undue influence operates quite differently in the context of wills from its operation in the field of inter vivos transactions. In the law of wills, undue influence is equivalent to coercion, by actual force or threats - but not by appeals to sentiments of affection, gratitude, pity or ties of kindred, which may legitimately be pressed on a testator. Influence generally in the form of persuasion or moral pressure to favour a person by will, whatever its degree, is not invalidating in probate unless it produces a will contrary to the will of the testator [Ridge v Rowden, 46]. There must be an overpowering of the testator's volition [Hall v Hall (1868) LR 1 P&D 481, 481-2]. As Sir John Nicholl said in Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577 (at 581):
The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.”
“42. The party alleging undue influence must prove the claim on the balance of probabilities. However, an allegation of undue influence is a serious one, and the Briginshaw test applies, as Vickery J explained in Nicholson v Knaggs [2009] VSC 64 [at 130]:
An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.
- That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [Callaghan v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357):
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis.”
His Honour’s comment about Callaghan v Myers (1880) 1 NSWLR 351 is reminiscent of the statements made by defendants’ counsel before me as to the rarity of a finding of undue influence.
With the above background in mind, there are a number of factors that I think constitute the circumstantial case proving the existence of undue influence. These factors, I emphasise, are not examples of coercion when any will was executed. Rather, they are the background circumstances which would have come together to render the deceased into a position where he would have regarded himself as having no choice but to execute the will. The factors are:
The susceptibility and vulnerability of the deceased.
The taking control, by the second defendant, of the deceased’s bank accounts not only very soon after her initial engagement but then again after she was re-employed following her sacking in September 2010.
The nature of the funds she was receiving from the deceased. Examples are the $10,000 after her sacking, the $5,000 for her car and the full funding of her four-week trip to England to sort out the deceased’s pension, a task which must have been possible from Australia, perhaps with the assistance of the British High Commission. A full table of the benefits received by the second defendant has been included above.
The second defendant’s presence at the execution of every will, and probably at every meeting with a solicitor concerning the making of a will.
Coupled with point (4), the increase of the benefit to the second defendant in each successive will.
It might be said in relation to the bank accounts that if the second defendant had a malicious intent, she could have depleted the funds and made off with the proceeds, a much quicker and simpler exercise. But that would have exposed the second defendant to criminal sanctions compared to the gradual dominance of the deceased’s life and obtaining a benefit from his estate.
In relation to vulnerability and susceptibility, the deceased was vulnerable from the start. This is the only explanation for his rapid hand-over of his banking to the second defendant. The deceased himself recognised his vulnerability, as shown in the exchange with Mr Murray on 4 April 2009, only 13 months after the second defendant commenced her employment:
“I realise I am vulnerable,
I am fair game
I have put my trust in her.”
“I put to Percy ‘How would you feel if you discovered one day that you’re a/c had been cleared out.’ He sd I would be very upset and would blame myself. I sd to Percy ‘You are very vulnerable’ ‘You must put all the checks and balances in place to make sure no problems arise’.”
The Commonwealth Bank had also expressed concerns but, again, it was not long after her sacking that the second defendant was back in charge of the bank accounts.
When Mr Murray was discussing termination of the second defendant’s services he made this file note of a conversation with the deceased on 14 September 2010:
“He sd he has reached the decision that he must get rid of Lavinia, but he seemed to be making all kinds of reasons or excuses not to do so.
e/g 1/ He has Drs’ appointment next month for his eyes – there are several appointments Who will take him? I sd what about getting a taxi – it would still be a lot cheaper than what Lavinia is charging
2/ Kathey, previous carer is coming from America this Friday and Lavinia was making arrangements so that Kathey could have the use of his car.”
Rather than being at the mercy of the second defendant, the defendants submitted that the second defendant had brought the deceased “out of his shell”. She transformed him from a depressed man to one capable of travelling overseas and participating in enjoyable adventures, such as the art tours and workshops. In addition, the second defendant encouraged the deceased to have surgery which substantially improved his mobility. There is some merit in the submission, but it must be recognised that at the same time the deceased remained dependent upon the second defendant for almost all of his living arrangements. She made the plans for him and handled his use of his funds while travelling.
Some of the factors I have outlined above are probably more relevant to equitable undue influence than probate undue influence but they do form the background to the undue influence that was occurring at the execution of each will. In my view this background was one which highlights the influence the second defendant had over the vulnerable deceased and was an influence which manifested itself at each execution of a will by her presence and consistent with the benefit to the second defendant increasing with each execution.
The extent of the background influence added in to the presence of the second defendant at each signing was tantamount to coercion. Coercion does not have to be physical and may be entirely ‘mental’. The second defendant dominated and dictated the deceased’s life. She controlled his money, and she made his appointments and arrangements. Some of the second defendant’s actions may well have assisted the deceased, but they also demonstrate her ‘control’ over him.
Usually, coercion will involve the use of force or threats to achieve an end. The coercion in this case does not involve any physical force or threats. Nevertheless, I think the influence held by the second defendant over the deceased and her presence when the wills were being signed amounted to a pressure upon the (vulnerable) deceased; equivalent, in effect, to force upon him. He was simply overborn by the circumstances created by the second defendant.
Put another way, the circumstances of vulnerability of the deceased, his “non-confrontational character”, the dominance of the second defendant and her presence at all important meetings with the solicitors and at the signing of the wills, all combined to leave the deceased no option but to execute the wills in which the second defendant became a beneficiary, and then had her share increased with each subsequent will. As stated by Prof Peisah, the deceased was ‘emotionally captive’ to the second defendant.
I am satisfied of the existence of probate undue influence in respect of each will executed by the deceased from 2011 to 2019. Although the degree of undue influence may have grown with each will, I think undue influence was already established by the existence of the above-mentioned ingredients by 2011, when a 5% share was given to the second defendant.
I make the following orders:
Probate granted to the first defendant on 30 April 2021 of the will of the late Percy Lloyd Waters dated 5 August 2019 is revoked.
Probate in solemn form of the will of the late Percy Lloyd Waters dated 3 June 2009 is granted to Laura Marie Waters.
The requirement to publish notice of the grant is dispensed with.
The proceedings are remitted to the Probate Registrar to complete the grant in accordance with the rules.
The further amended cross-claim filed in court by the third defendant on 29 October 2025 is dismissed.
The parties are to make written submissions on costs within 14 days, with costs to be decided on the papers.
**********
(1880) 1 NSWLR 351
(1918) 25 CLR 519
(2024) 114 NSWLR 459
(2012) 83 NSWLR 757
(1991) 23 NSWLR 116
(1995) 217 ALR 284
(1938) 60 CLR 336
(1998) 194 CLR 457
Because of his injuries, Dr Waters could not return to Bathurst. He bought a unit in Longueville in December 2006. The plaintiff and Mr Fraser played a large part in making the unit suitable for occupation by the deceased.
The plaintiff contracted pneumonia in November 2006 which severely limited her ability to assist her father.
Ms Kathey Collins-Kurrell was employed as a part-time domestic assistant for Dr Waters in June 2007.
Ms Lavinia Williment-Brown (the second defendant) took over as the part-time domestic assistant, in March 2008. She answered an advertisement for a “Carer” which stated:
Part of the reason for the detail was expressed by Mr Murray in his affidavit:
Ms Collins-Kurrell provided an affidavit dated 24 February 2023. She was cross-examined. In the course of her cross-examination she was taken to 2 emails apparently written by her, the first on 30 September 2008, addressed to the plaintiff and her husband (Exhibit A, p 1667) and the second on 5 December 2008 addressed to the deceased and the second defendant (Exhibit P16). Ms Collins-Kurrell denied she had written the first email but agreed she had written the second email.
Her first reason for denying she had written the first email was that she refers to herself as Kathey Lee Kurrell, rather than Kathey Lee Collins-Kurrell. Secondly, she said she did not sign off with an “x”. The difficulty with both of these reasons is that the above two attributes are also found in Exhibit P16.
I do not accept that Ms Collins-Kurrell did not write the email of 30 September 2008. I have the clearest impression that she was ‘loyal’ to the plaintiff at the time and endeavouring to stay on her side in particular as she had suspicions about the second defendant. I note that in her oral evidence she said that other than the deceased she had nothing “much in common” with the second defendant.
In the email of 5 December 2008 Ms Collins-Kurrell wrote:
Senior counsel for the second defendant and counsel for the first and third defendants gave an affirmative answer, as described above, so that I allowed Mr Frank to leave the witness box.
It is regrettable that Mr Frank could not be cross-examined because the third defendant, in particular, relied heavily on his evidence. As counsel stated when dealing with the relationship between Mr Frank and the deceased:
I also deal below with the problem arising from leading questions. It can be seen, for example from what Mr Frank says about the preparation of the 2016 will, that Mr Frank asked the deceased a series of questions generating a “Yes” answer.
Importantly, Prof Peisah said that dementia and cognitive impairment are more defined by what a person cannot do rather than what they could do. This was in answer to observations of persons like Mr Carver. In respect of Mr Carver’s observations, Prof Peisah said:
The Healthscope records are limited to: “CT Brain: Acute ischaemic changes no bleed.”
On discharge on 15 July 2019 Dr Benito “had no concerns with Percy’s cognitive capacity” to request a return to his independent living accommodation.
The second admission was on 9 March 2020, again following a fall. On this occasion a CT scan of the deceased’s brain was carried out. Once again, the doctor does not give any detail of the results of the scan and the notes do not assist.
On 20 August 2020, Dr Tiwari wrote to Dr Benito asking him to take over the deceased’s geriatric care, because the deceased “found you more helpful in past occasions”. The past medical history in the referral includes a reference to “memory loss” on 18 July 2020.
The final admission was on 31 August 2020 following “a heart block”. Clearly the deceased’s condition was dire because he received only palliative care. The deceased died on 4 September 2020. Dr Benito gives no indication of any cognitive assessment during this admission.
Unfortunately, Dr Tiwari was not able to be cross-examined. He was in India attending to the loss of a close relative. His absence impacted the weight of his affidavit, dated 6 March 2023.
Dr Tiwari, a general practitioner, saw the deceased on 13 occasions between 28 March 2020 and 31 August 2020. He records that at his first consultation the deceased had “an active memory”. This observation is perhaps inconsistent with the Myhealth record of the consultation (Exhibit A, p 3314) which refers to a hand injury and makes no mention of the range of observations referred to by Dr Tiwari in his affidavit (at [17]).
Dr Tiwari states that on subsequent visits the deceased was able to recall his medical history and “actively engage in making decisions about his health and personal care without support”. Again, the clinical notes make no mention of these observations. It is of course possible that the observations in the affidavit are a product of Dr Tiwari’s own recollection. However, absent his cross-examination, I am reluctant to attribute any weight to the observations.
I note that Dr Tiwari, in the Myhealth record for 27 April 2020 refers to speaking to the deceased’s “daughter” about results. This and other references to family are probably references to the second defendant. It was accepted that there had been no contact between the plaintiff and the deceased after 2009.
Also diminishing the weight of Dr Tiwari’s affidavit is his acknowledgment that he “was never asked to perform, nor performed a formal assessment of Percy’s testamentary capacity”.
It is true that the deceased made notes, often on the previous will to the one he was executing, which would suggest the giving of instructions independently and confirmatory of his wishes for the new will. But at the same time, he was frequently in the presence of the second defendant who, in my view, was influencing his life, if not controlling it. As will be seen below, I am of the firm view that she was exerting an undue influence upon him.
The diagnosis of dementia by Dr Gupta in 2020 is not a unique feature in the deceased’s medical history. As the careful examination of the medical records by Prof Peisah demonstrates, there had been many other indicators of cognitive impairment going back to the closed head injury in the motor vehicle accident in 2006.
Inserting Prof Peisah’s opinion into the requirements of testamentary capacity, which I accept is a legal conclusion and not a medical conclusion, I am satisfied that the deceased did not have testamentary capacity when he executed the 2019 will.
In Green, Meek J said in regard to the legal test for capacity at [67]:
Accordingly, I am satisfied that in respect of each will from 2011 until 2019 the will is rendered invalid by reason of the probate undue influence imposed upon the deceased by the second defendant.
I was asked to make separate findings about equity undue influence. I do not think I can go further than to say that if the factors I have set above to establish probate undue influence are found not to achieve that result, then they will, without more, be the factors establishing equity undue influence.