88 In view of my conclusions as to the 24 August Will, the only will in respect of which testamentary capacity is now in issue is that of 4 August. That will was prepared with the assistance of the Public Trustee, it is rational on its face, it was duly executed by the Deceased in the presence of witnesses, and it has been granted probate. Accordingly, it is presumed to be made by a person of competent understanding, in the absence of evidence to the contrary: Shorter v Hodges (1988) 14 NSWLR 698, at 706.
89 There is direct, detailed and impartial evidence from the Public Trustee officers as to what occurred when the Deceased gave his instructions for the 4 August Will. That evidence is derived from full and careful notes made on the Will Information Form, which was completed contemporaneously with the making of the will. The evidence of the Public Trustee officers is unchallenged and I accept it without hesitation.
90 The evidence of the Public Trustee officers is that the Deceased was alone when they interviewed him and that he gave his instructions unprompted by anyone. The Will Information Form correctly records the full name, address, date of birth and former occupation of the Deceased. It records that he was a widower with no children. It records a telephone number which is said to be incorrect in two of the digits. However, it is impossible to say whether that error was made by the Deceased or by the person who took down what he said.
91 The Will Information Form lists, correctly, the names of the intended beneficiaries and their relationships to the Deceased. The name "Stephanie" is incorrectly spelled as Ms Williams spells it "Stefanie". Again, it is impossible to say whether this error was that of the Deceased or the person who took down what he said. The error is, in any event, of no significance.
92 The Will Information Form records that the Deceased correctly gave his house at Lane Cove as the only real estate which he possessed and that he said that he owned it as sole proprietor. He said, correctly, that there was no mortgage on the title, that it was a brick and tile home built in 1947, with a 66ft frontage, and that the house was insured with the NRMA. He said that he thought the home was worth $300,000.
93 The Deceased's Lane Cove house was sold later in 1997 for $600,000. I do not think that it is of any consequence that in August the Deceased thought the house was worth only $300,000. Elderly people who have been living in their homes for many years often have no interest in knowing what their homes are worth in current market conditions. Not everyone in Sydney is a real estate speculator.
94 The Deceased correctly gave particulars as to his bank account and other assets. He correctly gave his Department of Veteran Affairs pension number. He correctly gave the name of his wife and said that she had died some years ago.
95 In response to a request for information as to possible claimants under the Family Provision Act, the Deceased is recorded as stating:
"Name of possible claimant: Susan (i.e. the Plaintiff)
Address: 11 Phoenix Street, Lane Cove
Relationship to Testator: Niece
Reason for exclusion: Testator claims
- Susan is living with a 'french man' & is 'out to get what he can get'
- feels Susan's spouse will take Susan's money & use it for his own purposes
- does not wish to give Susan anything
- not dependent on testator
- Susan brings the testator a 'hot meal each night' but he provides Susan with his bingo winnings ie food trays etc.
- Family have expressed concern about Susan & believes she will contest Will."
96 The information which the Deceased gave as to the Plaintiff's circumstances is not irrational on its face. The Plaintiff was indeed living at the time with a man of French birth and with a French name, Pascal Dionnet. They were not married until 1998 and they separated in January 2000 and were later divorced. The marital relationship was obviously short-lived; possibly, it was a difficult one. It is not unlikely that the Deceased witnessed whatever difficulties there may have been in the relationship and formed his own opinion as to Mr Dionnet. I have no evidence upon which I could form a view as to whether the Deceased's opinion of Mr Dionnet was irrational.
97 The Deceased was correct in saying that the Plaintiff was not dependent on him at the time. He was correct in recording that Mrs Christie and her family had "concerns" about the Plaintiff's intentions regarding his estate. He did not say that he agreed with those concerns and that he now regarded the Plaintiff as undeserving of any testamentary consideration. What he did say was that the Plaintiff was not dependent upon him and that he felt that if he left money to her Mr Dionnet, rather than the Plaintiff, would end up as the beneficiary. There is no evidentiary basis upon which I could properly conclude that the reasons which the testator gave for excluding the Plaintiff from the will, while including her daughters, were irrational or perverse.
98 The following notes were made in the Will Information Form as to testamentary capacity. Mr McLachlan wrote:
"He well &truly knew his assets & who his beneficiaries needed to be, he was clear in his mind about what he was doing, & was remarkable in his memory of his Dep't of Vet pension number. We obtained a Dr's (certificate) as it was indicated he had some short-term memory loss."
99 Ms Francis wrote:
"Understood nature of will? - Yes - suffers short-term memory loss but was able to recall all information without prompting. Interviewed alone in presence of myself and Brian McLachlan. Testator was very lucid, clear in instructions."
100 Ms Jackson wrote:
"I sat in Wills Room with Sue Francis and Mr Gleeson while Sue read out the will. Mr Gleeson confirmed with 'yes' after each clause was read (+ each beneficiary). He confirmed to Sue that these were his wishes and he signed and Sue and I witnessed."
101 Mr McLachlan recalled that he formed the strong view at the time that the Deceased had no need of a doctor's certificate because he was so clear in his instructions. He said, and I accept, that he would not have allowed the Deceased to continue with the process of making a will unless he had been completely satisfied that the Deceased had testamentary capacity.
102 In support of the contention that the Deceased lacked testamentary capacity when executing the 4 August Will, the Plaintiff relies on the report of Dr Parmegiani, a report of Dr Clarke, and the evidence of the Plaintiff and her former husband, Mr William Phipps.
103 Dr Parmegiani is a consultant psychiatrist, now in private practice. He has had a distinguished career, mainly in the public sector and in the insurance sector. His experience has been more in the assessment of psychiatric symptoms arising out of physical injury than in geriatric medicine. He has given evidence in less than ten or eleven cases regarding assessment of testamentary capacity.
104 Dr Parmegiani did not examine the Deceased. He based his opinion on reading a considerable volume of material provided to him by the Plaintiff's solicitors. I have to say at the outset that as Dr Parmegiani's cross examination progressed, I gained the impression that he was in danger of falling into the role of advocate for the Plaintiff's cause. His report was selective in the material to which it referred. For example, it referred extensively to the allegations made by Mrs Christie and her family to the Guardianship Tribunal as to the mental state of the Deceased, although those allegations were untested. He referred to "concerns" which the Tribunal had with the Deceased's short-term memory loss and to the mini mental state tests conducted on the Deceased in June and July 1997 which recorded "obvious memory problems". He referred briefly to the Will Information Form completed by the Public Trustee officers when they took instructions from the Deceased for the 4 August Will. He referred to Dr Clarke's report, which assessed the Deceased in February 1998.
105 In his report, Dr Parmegiani did not refer expressly to the test of testamentary capacity enunciated in Banks v Goodfellow (1870) LR5QB 549, at 565. He did not expressly give his opinion as to whether the Deceased understood the nature and effect of making a will, whether the Deceased understood the extent of his testamentary estate, whether he was able to comprehend and appreciate claims to which he ought to give effect, and whether his state of mind prevented him from making a rational disposition of that estate. Dr Parmegiani did not expressly state his conclusion as to whether or not the testator had testamentary capacity according to the Banks v Goodfellow test. He concluded his report thus:
"Ultimately, it is a matter for the court to determine whether Mr Gleeson had testamentary capacity on 4 August 1997. The weight of medical information however indicated that he suffered significant deficits in short-term memory, that he could be easily influenced, and that he was unable to manage his finances."
106 However, in the witness box Dr Parmegiani asserted a definite conclusion that the Deceased lacked testamentary capacity when he executed the 4 August Will: T235.18 - .29.
107 I am not persuaded by the opinion expressed by Dr Parmegiani in cross examination that the Deceased lacked testamentary capacity. My reasons are as follows.
108 In his report, Dr Parmegiani referred to, but did not discuss at all, what was obviously critical evidence, namely, the impartial observations of experienced Public Trustee officers who had taken the Deceased's instructions on the very day the will was prepared and executed. The reasons which he gave in cross examination for not doing so were, with respect, a little obscure. He said:
"Q. Did it not occur to you that in having regard to Mr Gleeson's testamentary capacity as at 4 August a much safer source of information would be the impartial officers of the Public Trustee experienced in taking wills from elderly people?
A. Yes.