Peacock v Knox

WARD P: This matter involves a dispute as to the estate of the late Mrs Eva Easton, who died aged 89 on 11 September 2021; in particular, as to the deceased’s testamentary capacity at the time, and her knowledge and approval, of the Will ultimately admitted to probate (the 2020 Will). The first respondent, Mr Geoffrey Knox, a solicitor, is one of the executors appointed under the 2020 Will and in that capacity made an application for probate of the 2020 Will. The second respondent, the Sydney Opera House Trust, is the sole beneficiary under the 2020 Will.

The deceased’s ex-husband had pre-deceased her and she had no children (nor, to her knowledge, any living relatives). The appellant, Mrs Isabelle Peacock, was the sole beneficiary named in the deceased’s previous May 2019 Will (the 2019 Will). The appellant challenged the deceased’s capacity to make the 2020 Will ([3] of her defence) and the deceased’s knowledge and approval of that Will ([4] of her defence), by the latter expressly contending that suspicious circumstances afforded the making of the 2020 Will. Those suspicious circumstances, as particularised at [4](a)-(j) of the defence, raise only three matters relating to the actual circumstances of execution of the 2020 Will (particulars (e)-(g)), the remaining particulars (after repeating the matters particularised in respect of the allegation of lack of testamentary capacity) relate to the appointment of a financial manager for the deceased proximate to the making of the 2020 Will and to events after the making of the Will, as well as the deceased not having previously expressed to the appellant an interest in the Sydney Opera House. In oral submissions on the appeal, emphasis was placed on the deceased’s frailty, anxiety, and the fact that she was in a nursing home (AT 5.4-9).

The appellant, by her amended first cross-claim, sought orders that probate of the 2019 Will be granted to her (relief for which she here contends if her appeal is successful) though in reply both orally (AT 60.37-32) and in writing (submissions at [12]) the appellant denies that she “propounded” that Will. The appellant also made various alternative claims in her cross-claim (alleging the existence of a testamentary contract for breach of which she sought damages and invoking the principles of promissory estoppel) but at the end of the hearing at first instance those alternative claims were not pressed.

On 8 August 2024, the primary judge, Hmelnitsky J, published his reasons, concluding that the deceased had capacity to make the 2020 Will (see Knox v Peacock [2024] NSWSC 976, the primary judgment, at [288]) and made orders granting probate of that Will in solemn form to the first respondent. As the respondents here concede, his Honour did not separately address the question of knowledge and approval of the 2020 Will. In obiter, his Honour observed that, had he accepted the whole of the evidence of the jointly appointed expert (Dr Lonie) on the issue of capacity, he would not have been willing to make an order for probate in relation to the 2019 Will as that same evidence would have given rise to a doubt as to the deceased’s capacity to make that earlier Will (see [303] of the primary judgment).

The appellant challenges his Honour’s decision and, as adverted to above, seeks orders from this Court admitting the 2019 Will to probate in solemn form (see Notice of Appeal filed 7 November 2024). The first respondent has filed a Notice of Contention seeking to affirm the primary judge’s decision on the ground there set out (relating to the issue of knowledge and approval) (see below).

In a subsequent judgment (Knox v Peacock (No 2) [2024] NSWSC 1372, the costs judgment), his Honour made orders to the effect that the appellant pay the first respondent’s costs of the proceedings on the ordinary basis and that any shortfall in the costs recovered pursuant to that order be paid from the deceased’s estate on the indemnity basis. The appellant challenges various findings relevant to the award of costs against her personally.

For the reasons set out below, the appeal should be dismissed with costs.

The background to the dispute is set out in the primary judgment (see from [16]-[206]), in the course of which his Honour summarised the evidence of various of the witnesses. It is not necessary to recount this in great detail. However, to put the issues raised by the appeal in their factual context, it is useful to note the following chronology of events. In what follows, references in square brackets are to the primary judgment unless otherwise indicated.

The appellant first met the deceased in 2004 when the deceased visited the appellant in the latter’s professional capacity as an aromatherapist and they had formed a “good friendship” by around 2009 ([17]-[30]). The deceased’s only other friends at that time were Hildegard and Heinz Scheffler (the Schefflers), a German couple that the deceased met through her church ([26]). The Schefflers provided assistance to the deceased ([27]) up until 2019 (by doing her laundry, ironing and gardening; and assisting her to withdraw cash from the bank to pay her bills; and helping her to attend appointments – see [36]).

Following a fall at her Maloney’s Beach home in September 2017, the deceased entered into residential care in the “high needs” facility at Maranatha Lodge (Maranatha) in November 2017. Contemporaneous Maranatha records refer to the deceased suffering from “fairly significant depression and anxiety”, with only “limited ability to control her moods” ([38]). The primary judge referred to the deceased as a “highly anxious person who found it difficult to make choices” and as “highly discriminating” ([30]).

From 2017, the appellant began to visit the deceased more frequently (sometimes for hours at a time) and the appellant drove the deceased to visit the deceased’s home, ownership of which the deceased retained after she moved into Maranatha ([33]).

In December 2017, shortly after her arrival at Maranatha, the deceased appointed Mrs Scheffler as her attorney under an Enduring Power of Attorney and as her guardian under an Enduring Guardian appointment document. At that time, the deceased made a will appointing the Schefflers as her executors and leaving her whole estate to them (nominating the appellant as an alternative residuary beneficiary) ([34]). (The appellant notes that the Schefflers were provided with formal notice of the proceedings before the primary judge and did not challenge the 2019 Will. The appellant says that, in the absence of a challenge to the validity of that will, her evidence in the proceedings before his Honour was limited to her challenge to the 2020 Will. Nevertheless, as already noted, the appellant sought by her cross-claim in those proceedings the admission to probate in solemn form of the 2019 Will.)

In January 2019, the Schefflers informed the deceased that they intended to move to Queensland. The deceased was angry and upset about this ([37]) and felt that she had been abandoned by them (that they had “up and left”). The deceased was also anxious about her finances (which had been managed for her by Mrs Scheffler).

The appellant’s evidence was that in early April 2019 the deceased asked her to take over all her financial affairs and to take her to a solicitor to appoint the appellant as her attorney under an Enduring Power of Attorney and her guardian. This was corroborated by contemporaneous Maranatha clinical notes ([37]). The deceased executed an Enduring Power of Attorney in favour of the appellant, and appointed her as Enduring Guardian, on 23 April 2019 ([40]).

From 29 May 2019, the appellant managed the deceased’s finances (consulting and visiting with the deceased at Maranatha in relation to this). Although the primary judge quoted (at [51]), and accepted, the appellant’s evidence that she only took steps with respect to any bills and payments “following consultation” with the deceased, the appellant here challenges this factual finding on the basis that the evidence disclosed that her practice was that she paid bills and consulted afterwards. Nothing relevantly turns on the difference in the timing of the appellant’s consultation with the deceased in relation to the payment of bills, though it is difficult to criticise the primary judge quoting the appellant’s own affidavit evidence on this issue. The appellant, however, appears to rely on this in the context of her complaint that the primary judge considered that there was a rational basis for the deceased’s concern as to the management of her finances (as I explain in due course).

On 29 May 2019, the deceased made a new will (the 2019 Will), making the appellant her sole beneficiary. The primary judge noted that there was no direct evidence as to when and in what circumstances the solicitor who prepared that will (Ms Christine Park, the solicitor on the record for the appellant in these proceedings) had taken instructions from the deceased to prepare the will ([45]).

There was some evidence as to difficulties in the management of the deceased’s finances in the period from May 2019 to 2020 when the appellant had responsibility for this. The primary judge made various findings in this regard that are here challenged by the appellant: at [52], that the appellant “was either unable or unwilling to assume full control of [the deceased’s] finances”, “had no role in ensuring that there were funds available for the Visa card”, and “did not know how funds were deposited into the Visa card account”; at [54], that so far as Maranatha was concerned, the appellant “was generally only able to pay bills with the cooperation of [the deceased]” (since until May 2020 it seemed that the deceased preferred to pay her Maranatha bills in cash and, without the passbooks, the appellant was unable to access the deceased’s cash); and at [55], that this “same difficulty seems to have existed for some other costs” (the primary judge giving by way of example of this an issue arising in relation to the deceased’s unwillingness to pay for gardening work at her Maloney’s Beach property – which the appellant emphasises was an issue that the appellant had in relation to the gardener’s marital status). (The appellant clearly attributes any issue as to the management or mismanagement of the deceased’s accounts to a falling out between the appellant and the facility manager at Maranatha from early 2020 to September 2020, Mr Doran.) I consider the challenges to those factual findings in due course.

Complaint is also made by the appellant as to findings by the primary judge (at [56]; [59]) that “[the appellant] was not pro-active in managing issues” and that “[t]he difficulties that existed with [the deceased’s] finances in 2019 and 2020 were the result of poor financial management”.

The relevance of the difficulties in management of the deceased’s finances (whatever be the cause of those difficulties – i.e., whether there was poor financial management by the appellant or the difficulties were due to resistance by the deceased to the making of payments) seems largely to go to the complaint by the appellant that the management or staff at Maranatha had sought to “exclude” her and the making by Maranatha staff of an appointment for the first respondent to attend the deceased in September 2020 for a replacement attorney to be appointed (to which I refer shortly). However, those difficulties are also relevant to the finding by his Honour (at [69]) that the deceased’s financial situation became very strained once the appellant stopped visiting the deceased.

Certainly, from Maranatha’s perspective there were difficulties in relation to the timeliness of payment for its fees. The primary judge noted (at [69]) that documents filed in support of a 2021 application to the New South Wales Civil and Administrative Tribunal (NCAT) for the appointment of the NSW Trustee and Guardian to manage the deceased’s affairs included an account statement from Maranatha showing that during the whole of the 2020 year, the deceased was constantly in arrears (which his Honour said must have been a real source of anxiety for [the deceased]”) (see also at [70]). The appellant here disputes that the Maranatha account was consistently in arrears (maintaining that the account balances were recorded on a running account basis) (AT 16.3-6). Nevertheless, what is not in dispute is that Maranatha management perceived there to be a problem with the management of the deceased’s finances. Nor can it be disputed that the management of the deceased’s finances (poor or otherwise) had been a long-standing source of anxiety for the deceased.

I have referred above to the appellant ceasing to visit the deceased at Maranatha. This arose as a consequence of the occurrence of the global COVID-19 pandemic. The primary judge said that the pandemic had a direct and significant effect on the deceased’s relationship with the appellant because the appellant did not have an influenza vaccination and was unwilling to get one ([61]). The appellant here argues that there were periods in which the nursing home was in “lockdown” and hence that, irrespective of the fact that she did not have a flu vaccination, she was unable to visit the nursing home during those periods. It is also noted that the requirement for visitors to have a flu vaccination pre-dated the pandemic (though I interpose to note that it may well be that the pandemic led to more strict insistence by Maranatha management on such a requirement). That said, apart from a few visits held outdoors (on 10 March 2020, 16 March 2020 and 18 May 2020) (AT 36.30-36), it does not appear to be disputed that from around March 2020 the appellant’s visits to Maranatha were greatly curtailed during the pandemic. (Nor would it in my opinion be irrational for someone in the deceased’s position to be upset at the cessation of visits, whether or not that was due to a decision made by the erstwhile visitor not to have a flu vaccination, but in any event the appellant herself accepts that the deceased was angry with her for just that reason.)

The primary judge found that the unwillingness of the appellant to have a flu vaccination meant that from March 2020, during the course of the pandemic, the appellant was unable to visit the deceased at Maranatha ([61]). The primary judge can hardly be criticised for this finding. The appellant’s own evidence (in her affidavit of 5 December 2022) was that the deceased “became angry with me that I didn’t have the injection and was not allowed inside Maranatha” (my emphasis) and that “[b]ecause of this [the deceased] refused to speak to me for a period of time”. The primary judge said that it was not entirely clear when the “communication freeze” between the appellant and the deceased began but that, doing his best, it seemed to have been in about the week of 9 March 2020 ([62]).

The primary judge found (at [65]) that, from about the middle of March 2020, the relationship between the two was materially worse and that both of them knew it; and said that by May 2020 they were not speaking at all despite the appellant’s efforts. His Honour had earlier (at [58]) found that “[by May 2020,] the relationship between [the deceased] and [the appellant] had deteriorated fairly dramatically”. The appellant challenges the findings at [58] and [65] as to her relationship with the deceased, asserting that they are unsupported by the evidence and/or wrong. I deal with these challenges in due course.

At [66], his Honour found that an undoubted cause for the breakdown in the relationship between the appellant and the deceased was the appellant’s unwillingness to get a flu vaccination and her consequential inability to visit Maranatha, which made the deceased angry and upset. That is not only consistent with the appellant’s own affidavit evidence (set out above) but also with the appellant’s account of a conversation with Mr Doran, quoted by the primary judge at [68], to the effect that the deceased was “happy for NSW Trustee to manage her financial affairs, as you [the appellant] are currently unable to continue in this role as you are not vaccinated and [the deceased] is angry with you”.

On 18 May 2020, the appellant had an outdoors meeting with Mr Doran, also attended by the deceased at which Mr Doran suggested that the NSW Trustee and Guardian be appointed to manage the deceased’s financial affairs ([71]), a proposition with which the appellant was not in favour ([72]). His Honour noted that following the meeting the appellant had argued with Mr Doran over the telephone about this and had tried to call the deceased to discuss the issue but the deceased refused to return her calls ([72]).

Contemporaneous Maranatha notes record anxiety or agitation on the part of the deceased as to her Power of Attorney (referred to by the primary judge at [73]-[74]; [76]; [79]). Relevantly, the primary judge noted (at [76]) that Ms Giusti (an acting manager at Maranatha who shared some management responsibilities with Mr Doran) had recorded (in the Maranatha clinical notes) a discussion with the deceased on 13 August 2020 in which the deceased “brought up her long-standing issue with her POA which has been causing her a great deal of anxiety” and that Ms Giusti had advised the deceased about the Older Persons Advocacy Network (OPAN). The Maranatha notes also record that in the early part of August 2020 either Ms Giusti or Mr Doran contacted OPAN for advice about the deceased’s issues “with current POA and legal counsel” ([77]).

On 17 September 2020, following the receipt by the appellant of legal advice, the appellant executed a notice of resignation as attorney and guardian, delivering two copies of this document to Maranatha (one of those being for the deceased) ([83]). The primary judge noted that, by this point, the appellant had not spoken with the deceased in at least three months. In cross-examination, the appellant identified 18 May 2020 as the last time she had seen the deceased prior to what was referred to by the cross-examiner as the “halting of the relationship” in June 2020 and the appellant identified the “lockdowns” as coming in about March that year. Given the evidence that the deceased had refused to take various telephone calls from the appellant, the timeline for his Honour’s finding at [83] appears correct.

On 22 September 2020, the first respondent (a solicitor from Kennedy & Cooke lawyers), visited the deceased at Maranatha. The appointment was made following an enquiry made of the first respondent’s firm by Ms Giusti, as appears from a note on the firm’s website enquiry set out by the primary judge (at [100]). The primary judge had earlier said (at [78]) that there was little evidence as to the consultation “that led to the decision by Maranatha to contact a local solicitor on [the deceased’s] behalf”, accepting that one motivation was Maranatha’s “own financial position”.

The electronic diary entry by the employee of the firm who had spoken with Ms Giusti recorded the appointment as being for “New Will, POA and EG” ([101]). His Honour attached relevance to that entry as indicating that whoever made the call to the first respondent’s office to make the appointment for 22 September 2020 (“probably Ms Giusti”) mentioned a new will (and finding that the notion of making a new will was not an idea put into the deceased’s head by someone else) ([270]). Insofar as this is a finding that the appointment was for a “New Will, POA and EG”, the appellant challenges this as erroneous, pointing to the first respondent’s evidence that he did not know the purpose of the meeting before the appointment. In any event, a large plank of the appellant’s challenge to the conclusions reached by his Honour is as to the proposition that the deceased had an intention or desire to make a new will before the making of a new will was the subject of a closed question by the first respondent at the 22 September 2020 meeting.

The first respondent estimated that the first meeting lasted for 35-40 minutes. The first respondent’s evidence as to what occurred at the 22 September 2020 meeting was summarised by the primary judge at [100]-[138]. His Honour found the first respondent to be a generally reliable witness ([105]) and said that the first respondent’s affidavit account of that first meeting was generally reliable save for some relatively insignificant details (one being who was present in the room with him – Ms Giusti or Ms Flannery; another being how the first respondent had framed his introduction to the deceased – namely, whether he had been the one to introduce the idea of a new will). On those issues, his Honour found that it was probably Ms Giusti who stayed in the room on 22 September 2020 ([106]), a finding not challenged on this appeal; as to the latter, his Honour noted ([109]) that the first respondent had accepted in cross-examination that he had asked a closed question about the will (“Do you want to do a will”) like the one reproduced in his file note of the meeting (not an open question as framed in his affidavit). I note that the first respondent also gave evidence that his file notes on the day were “very much brief notations”, which does not strike me as surprising if made during the course of the attendance itself.

The first respondent’s account of the instructions given by the deceased (see [111]-[115]) included that the deceased did not want to have anything to do with the appellant anymore; that the appellant did not help her anymore; that the deceased did not trust her and did not want her to be in the Will; and that the deceased wanted to make sure that the appellant did not get anything because she was not helping her anymore. The first respondent asked questions of the deceased as to her family and as to what she owned; whether she was still going to keep her house or might need to sell the house; and to whom the deceased wished to leave her estate.

His Honour noted at [114] that the evidence as to who mentioned the Sydney Opera House was inconclusive but that it did not seem to have been the deceased’s idea. According to the first respondent, the deceased said that classical music had been her interest for all her life and that she wanted it to be for German music because German composers were the ones she liked. The primary judge said that, once mentioned, the deceased was enthusiastic about the idea.

The first respondent’s account of the meeting included that he questioned the deceased as to who she wished to be the executor (the deceased asking him if he could do it) and who was the executor in her old will (the deceased identifying the appellant) ([115]).

I note that the appellant does not criticise the fact that someone else (Ms Giusti) was in the room when the instructions were taken; rather, the point is made that Ms Giusti was not called to give evidence – see AT.11. It appears that Ms Giusti had left Maranatha before the 2020 Will was executed (hence the giving of handover instructions to Ms Flannery). It is not clear whether there was any evidence as to her availability to be called as a witness.

After the meeting, the first defendant had a conversation with Ms Giusti in which she asked if he could become the attorney and guardian for the deceased. The first respondent said that it was inappropriate for him to assume that role and identified the NSW Trustee and Guardian as appropriate. In his oral evidence the first respondent explained that the policy of his firm was generally not to accept such appointments.

The 2020 Will was executed on 19 November 2020. The first respondent estimated this meeting to have lasted for 40-50 minutes.

Under the 2020 Will, the partners of Kennedy & Cooke were appointed as the deceased’s executors and trustees and the whole of the estate was left to the Sydney Opera House to “be used for the purposes of promoting the development of performers and performances of the music of and operas of that group of composers who could be characterised as of being of the German school of music”.

The primary judge explained that the reason for the delay in execution of the 2020 Will was that there had been COVID lockdowns and it had not been possible for the first respondent to return to Maranatha in the meantime (and his Honour said that there had been a change in management staff at Maranatha which may have contributed to the delay) ([119]).

Present in the room at the time the 2020 Will was executed were the first respondent, Ms Nedwich (an employed solicitor) and Ms Flannery. The first respondent did not keep a note of his attendance on that occasion but Ms Nedwich prepared a file note on her return to the office later that day.

The first respondent’s evidence is that the deceased recognised him as the lawyer (though the weight of this may be discounted by Ms Flannery’s acceptance in cross-examination that she may have prompted the deceased’s recollection before the meeting – see below); that he read out the first four paragraphs of the 2020 Will, summarised the trustee powers in paragraph five, and then read out paragraphs six and seven; that he asked if that was the deceased’s wish to which she responded yes; and that he noticed the deceased nodded several times as he was reading. The first respondent then asked the deceased what she owned; whether she was thinking of selling the house; whether she wished the firm to be executors of the will; and whether she had anyone to leave her estate to (her response being that she was happy with leaving it to the Sydney Opera House). The first respondent said that he then presented the will to her and asked if she wished to read it; and that she took the will and read it through, spending a total of about 10 minutes considering the will; and that the deceased then, in answer to a question from him as to whether she wished to sign the will, said “yes, I do”.

The first respondent’s evidence is that, following execution of the 2020 Will, the deceased said that she wanted her finances looked after because the appellant was not doing it anymore and was not helping her; and that he said he would see if Maranatha would organise someone to look after her finances.

Pausing here, criticism by the appellant as to the rationality of the deceased later disinheriting her (at a time when the deceased was expressing her anger or belief that the appellant was no longer doing anything to help her) ignores the fact that the deceased had previously done exactly the same in relation to the Schefflers.

I have already referred to some of the findings made by the primary judge. His Honour’s reasons were structured in an orthodox way. His Honour commenced with a brief introduction, in which he identified the principle issues in dispute; outlined the applicable principles; set out the facts relevant to the issues in dispute, in the course of which he summarised some of the evidence of various witnesses (including the expert witness, Dr Lonie); set out his assessment of the lay witnesses; and then addressed his conclusions as to the deceased’s capacity to make the 2020 Will, after which he addressed in obiter the question whether the deceased had capacity to make the 2019 Will.

Relevantly, from [208]-[265], his Honour addressed the expert evidence of Dr Lonie (a clinical neuropsychologist jointly instructed by the parties) and his reasons for the conclusion that Dr Lonie’s evidence did not persuade him that the deceased lacked capacity to make the 2020 Will.

The primary judge accepted that Dr Lonie had thoroughly reviewed the available medical and lay evidence ([211]). His Honour noted that Dr Lonie was of the opinion that there had been alterations in the deceased’s cognitive functions from 2014 and that, from the latter part of 2017 up until the deceased’s death, there was a persisting and slow progressive decline in the deceased’s cognition, behaviour, psychological well-being and functional capacities “consistent with what one would expect to observe in the course of a Vascular dementia (Major Neurocognitive Disorder due to Vascular Dementia) arising secondarily to small vessel disease, possibly exacerbated by the very particular, mistrusting and independent nature of [the deceased’s] pre-morbid personality” (see Dr Lonie’s report dated 29 May 2023).

The primary judge further noted (at [212]) that Dr Lonie’s overall opinions included that, at the relevant times of provision of instructions for the 2020 Will and as at the time of its execution, the deceased lacked “the ability to judge and appraise significant others in the process of weighing up the claims on her estate, as a result of the combined effects of her impaired memory, reasoning ability and loss of insight” (see also the extracts from Dr Lonie’s report set out in the primary judgment at [213]-[214]).

His Honour considered (see at [215]) that Dr Lonie’s opinions were at times expressed by reference to her own particular understanding of the nature and quality of the relationship that existed between the deceased and the appellant at the time of the 2020 Will; and, in some respects, were to the effect that the deceased’s ability to weigh competing claims was affected by cognitive impairment such that she would not have come to the same decision had she not been affected by cognitive impairment. Dr Lonie’s report (in the passage referred to by the primary judge at [214]) referred to the deceased’s affections towards the appellant having been poisoned “as a result of impaired memory, reasoning and insight, and in the context of struggling to achieve a coherent understanding and retain some control and oversight of her financial affairs” in a manner that they otherwise would not have been, were it not for the combined cognitive effects of her vascular dementia.

The primary judge concluded that Dr Lonie’s opinions were not so much that the deceased could not weigh up the competing claims on her testamentary bounty at all; rather, that the deceased could not have done so in the same way as if she were unaffected by dementia ([215]). The appellant takes issue with this, submitting that Dr Lonie’s view was not that the deceased had “residual” capacity – see Grounds 3 and 4 below.

From [266], the primary judge set out his conclusions as to the evidence of the lay witnesses: Mr Knox, Dr Langley (the general practitioner who had treated the deceased first in 2010 but more regularly from 2017 when the deceased was first admitted to residential care until her death in 2021), Ms Flannery (an occupational therapist, with qualifications as a lawyer, who knew the deceased and who was present on the occasion that the 2020 Will was executed), and the appellant herself.

The primary judge’s conclusions as to the deceased’s capacity to make the 2020 Will are set out at [288]-[289]. As noted already, his Honour did not separately address the question whether the deceased knew and approved of the 2020 Will. His Honour then made observations as to the deceased’s capacity to make the 2019 Will (against the possibility that he was wrong about her capacity to make the 2020 Will).

As to costs, in the costs judgment, his Honour said that he had rejected the appellant’s case that the deceased lacked capacity to make the 2020 Will (costs judgment at [1]) and that even if he had been inclined to accept that contention he would not have been prepared to find that the deceased had capacity to make the alternative will propounded by the appellant (the 2019 Will). As already noted, the appellant cavils with the proposition that she “propounded” the 2019 Will but it cannot seriously be disputed that she sought an order that it be admitted to probate in solemn form (see prayer 2 in the Amended First Cross-Claim).

After rejecting the first respondent’s contention that the appellant should pay his costs on the indemnity basis (the first respondent relying on two written offers of compromise), about which there is here no challenge, his Honour addressed the so-called probate “exceptions” to the general rule that costs follow the event (from [33]ff of the costs judgment).

His Honour noted (costs judgment at [41]) the appellant’s submission that the testator’s mental frailty was the cause of the litigation and that it was reasonable for her to see the case to its conclusion in order to determine the validity of the final will. His Honour said that those factors must be weighed in the context of the proceedings as a whole, recounting the procedural and forensic setting in which the question of the validity of the 2020 Will was ultimately determined (costs judgment at [42]). In so doing, his Honour noted that the appellant had abandoned her alternative claims (based on contract or estoppel) but only during closing submissions on the last day of the hearing.

The primary judge said (costs judgment at [46]) that his conclusions as to testamentary capacity were reached in the light of the persuasive contemporaneous evidence of the solicitor who witnessed the will (i.e., the first respondent), the deceased’s regular GP (Dr Langley) and a staff member at the deceased’s nursing home (presumably Ms Flannery).

His Honour accepted that Dr Lonie’s evidence raised a question as to the deceased’s capacity (costs judgment at [49]) (though his Honour had noted at [48] that retrospective experts’ reports often have limited utility and that contemporaneous observations from persons such as solicitors, doctors and nurses will frequently be given weight in resolving the legal question of testamentary capacity, a matter that he said the appellant should have appreciated – presumably there attributing the lawyers’ assumed appreciation of this to the appellant).

His Honour attached weight to his finding that the evidence relied on by the appellant to impugn the 2020 Will gave rise to a serious question as to the deceased’s capacity to make the 2019 Will, such that if he had accepted that evidence it would have led him to conclude that the 2019 Will was equally unsafe (costs judgment at [50]). His Honour further said that it was evident that the appellant’s failure to lead evidence concerning capacity to make the 2019 Will was a forensic decision made on the mistaken belief that, should the issue have arisen, it would have been dealt with in some separate proceeding (costs judgment at [51]).

Finally, his Honour noted that the estate was valued at around $1 million and that the first respondent’s costs at the commencement of the hearing were already $200,000. His Honour said that an order that the parties’ costs come out of the estate on the indemnity basis would see a good proportion of the estate eaten up by the costs of the litigation, which his Honour said was never going to result in a grant of probate in favour of the appellant given the way the case was run (costs judgment at [53]). Accordingly, his Honour was unable to accept that the appellant’s decision to pursue the litigation through to finality in the way she did was reasonable (costs judgment at [55]). Hence, his Honour made the costs orders he did (including the order now impugned by the appellant that she pay the first respondent’s costs on the ordinary basis).

Not all of the grounds of appeal were pressed at the hearing (those not being pressed were Grounds 2(b)-(c), 11 and 22). Broadly, the remaining grounds were grouped by the appellant into the following categories.

First, Grounds 1-5, challenging various factual findings going to the appellant’s contention that the deceased lacked testamentary capacity to make the 2020 Will and did not intend to make the 2020 Will (or any new will).

Second, Grounds 6-10, going to the appellant’s contention that there was no rational basis for the deceased to disenfranchise the appellant or to find that their relationship had materially deteriorated or that the deceased’s “anger” towards the appellant was relevantly justified or rational to explain the existence of the retainer of the first respondent in relation to the making of the 2020 Will or its dispositive effect.

Third, Grounds 12-13, going to the appellant’s contention that Dr Lonie’s opinion that the deceased was not relevantly able to reason or capable of making the type of decision-making necessary to make the 2020 Will was not properly displaced by any lay evidence to the contrary and should have been accepted.

Fourth, Ground 14, that there was no evidentiary basis to find that the deceased knew and approved of the 2020 Will.

Fifth, as to costs, asserting error material to the primary judge’s award of costs against the appellant personally, namely: Grounds 15-17, the contention that the primary judge ought to have held that there was no challenge to the 2019 Will; and Grounds 18-21, the contention that there was appellable error in the exercise of the primary judge’s discretion in relation to the award of costs.

As already noted, the first respondent’s Notice of Contention goes to the issue of knowledge and approval of the 2020 Will and will be considered in the context of Ground 14.

Ground 1 challenges what is said to be a finding (at [77]) that the deceased wished to make a new will in about August 2020. In the appellant’s submissions reference is also made in this context to what was said by his Honour at [97] and [254] (referred to above).

The appellant submits that, having found that the deceased was suffering from vascular dementia, it was not open to the primary judge to have concluded (beyond impermissible speculation) that the deceased wished to make a new will in about August 2020 and that this was the reason for the first respondent’s first visit to the deceased at Maranatha in September 2020. The appellant contends that the reason for the visit was that management at Maranatha was seeking to ensure that the deceased remain with the means to continue to pay nursing home fees during the COVID pandemic; and for that purpose to arrange for the solicitor’s attendance to organise the deceased’s financial affairs.

Before turning to the submissions on that issue, it is relevant to note what his Honour actually said at the paragraphs of the reasons here identified by the appellant.

At [77], his Honour was referring to contact made by either Ms Giusti or Mr Doran with OPAN in the early part of August 2020 for advice about the deceased’s issues “with current POA and legal counsel” (which led to a social worker interviewing the deceased and the suggestion to Ms Giusti or Mr Doran that a local solicitor be contacted). In that context, his Honour there recorded the evidence given by Ms Flannery that Ms Giusti had told her that OPAN was contacted for advice regarding the deceased wanting to change her will.

There was no finding at [77] that the deceased wished to change her will in August 2020 nor that this was the reason for the first respondent’s first visit to Maranatha. Indeed, his Honour went on at [78] to accept that one motivation for Maranatha staff arranging the first visit was Maranatha’s own financial position (which rather cuts across the appellant’s insistence that there was no difficulty with the accounts).

At [97], his Honour was referring to Ms Flannery’s evidence that the deceased had told her on no less than about 20 occasions in late 2020 “including in August and September” that she did not want the appellant to have anything of hers.

At [254], his Honour affirmed what he recorded to be a finding at [97] and [99] that in August and September 2020 the deceased had consistently expressed a desire to disinherit the appellant. The reference to [99] is a reference to a paragraph where his Honour said he accepted what Ms Flannery observed in the deceased generally during the period 2018 to the end of 2020.

What can be seen from these paragraphs of his Honour’s reasons is that the finding there being made was more nuanced than the appellant suggests. What his Honour was saying (which is supported by Ms Flannery’s evidence – though I note that this is itself the subject of challenge in Ground 5) was that in August and September 2020 the deceased had consistently expressed a desire to disinherit the appellant (which necessarily would have required at least the revocation of the 2019 Will and one might assume the making of a new one) (see also at [231]). In oral submissions, the appellant placed emphasis on the fact that the evidence was not that the deceased wanted to make a new will; rather that she wanted to disinherit the appellant – AT 14. I see this as a distinction without a material difference (particularly given that Dr Lonie accepted that the deceased had likely retained a sound understanding as to the nature and effect of a will – see [107]).

There is nothing inconsistent in the finding that the deceased had consistently expressed a wish to disinherit the appellant with the fact that the Maranatha clinical notes recorded issues about the deceased’s Power of Attorney nor with Maranatha being motivated to arrange for the management by someone other than the appellant of the deceased’s financial affairs.

The import of his Honour’s finding was that the deceased had expressed a wish (prior to the 22 September 2020 meeting with the first respondent) that the appellant receive nothing of hers (hence lessening any weight to be attached to the closed question being put to the deceased at the 22 September 2020 meeting as to whether she wanted to make a new will). The appellant attaches no little weight to the closed question because of the evidence by Dr Lonie as to the effect of suggestion on a person suffering from dementia.

In those circumstances much, if not all, of the dispute as to whether the 22 September 2020 meeting was arranged because the deceased wished to change her will falls away. However, since it occupied much focus in the submissions, I note the following.

The appellant takes issue with Ms Flannery’s evidence that Ms Giusti (who was not called to give evidence in the proceedings) had told her that OPAN was contacted “for advice regarding Eva wanting to change her will” in early August 2020.

Pausing here, it is not clear that Ms Flannery did place this conversation as occurring in “early August”. Ms Flannery certainly recalled a conversation in which she was told about contact having been made to OPAN (see her affidavit at [268]) but no time is there specified (although in context it must have been before Ms Giusti left Maranatha in September 2020). His Honour referred to the Maranatha notes recording contact in the early part of August (see [77]). As I have noted earlier, the Maranatha clinical notes record a discussion with the deceased on 13 August 2020 at which Ms Giusti advised the deceased about OPAN and record contact being made on that date. This seems to have been the basis for his Honour’s reference to contact having occurred in early August 2020. Ms Flannery’s oral evidence was not specific as to the timing of her contact with the manager at Maranatha about OPAN simply identifying this as “prior to September, so probably August”. Therefore, the appellant’s complaint appears to be based on a conflation of the evidence of Ms Flannery about contact being made with her manager about OPAN “probably” in August and the fact that the OPAN contact was on 13 August 2020 (the attendance by OPAN being on 24 August 2020).

In any event, the appellant’s complaint is that the timing (i.e., of Ms Flannery having been told that OPAN was contacted in early August 2020) is “out of sequence”. The appellant points out that the conversation that Ms Flannery had with Ms Giusti was in the context of a “handover” by Ms Giusti, who was leaving her position at Maranatha and who the appellant says was concerned to ensure that arrangements be made for the first respondent to return with the draft will. The appellant also emphasises that OPAN was contacted about advice for the deceased’s concern with revocation of the Power of Attorney and referral to the Public Trustee.

The appellant also points out that in cross-examination Ms Flannery accepted that she did not have any first-hand knowledge as to the reason why the first respondent first came to attend upon the deceased; that Ms Giusti’s clinical notes made before that meeting made no reference to any request for a will; and that the first respondent’s evidence was that he did not know before the meeting the scope of what he would be asked to do.

Insofar as the respondents, in their submissions, refer to Ms Flannery’s evidence that the deceased recalled that she had given instructions to the first respondent to change her will and said to her on 11 November 2020 that she would like to finalise her will, the appellant notes that, although having no recollection, Ms Flannery accepted in cross-examination that it was possible that she had prompted the deceased immediately prior to the 19 November meeting (at which the 2020 Will was executed) that the first respondent was returning to do her will (and had had a discussion about it).

I accept that the documentary evidence (the Maranatha clinical notes and the record of the contact made with OPAN) support the conclusion that the reason Maranatha contacted the first respondent was for advice or assistance in relation to the management of the deceased’s financial affairs (consistent with the deceased’s recorded concerns about the Power of Attorney). Apart from the electronic diary entry recording the meeting, inter alia, as for a new will, I accept that there is nothing that indicates that the first respondent was asked to attend the deceased because she wanted to make a new will. As to that electronic diary entry, to which the primary judge attached some weight, the difficulty I see with this is that it is not clear whether that was some form of standard or pro forma category of consultation used to encompass such attendances without particular reference to which one or more of the matters there identified was to be discussed.

However, I cannot accept that his Honour erred in finding that the deceased had expressed a desire to disinherit the appellant prior to the September 2020 meeting. Ms Flannery’s evidence of multiple conversations to that effect during the 2020 period (which, by reference to her affidavit at [19] must have been in the period from August to December 2020) was accepted by the primary judge, who had the opportunity to assess Ms Flannery as a witness and found her to be generally reliable. It was not put to Ms Flannery that the conversations did not occur or could not have occurred before the 22 September 2020 meeting. Therefore, I cannot accept the proposition in Ground 1(f) to the effect that it was not open to his Honour (on the balance of probabilities) to have concluded that the deceased had wished to make a new will (i.e., to disinherit the appellant) before that was suggested to her by the first respondent’s closed question at the 22 September 2020 meeting.

Ground 1 is not made good.

Ground 2 in substance takes the matter no further than Ground 1, since the thrust of this ground goes to the explanation for the making of the appointment with the first respondent to attend the deceased on 22 September 2020 and the contention that it was the first respondent who first suggested the making of a new will to the deceased. The appellant describes Ground 2 as providing a cogent explanation (not considered by the primary judge) as to how the first respondent came to be present at Maranatha despite the deceased in fact having the means (through the valid Power of Attorney she had granted to the appellant) to manage her financial affairs.

At the hearing of the appeal, the appellant abandoned Grounds 2(b)-(c) (which included assertions that there was no rational basis for the deceased to replace the Power of Attorney and no rational basis to make the new will), although the appellant in her written submissions had relied on those matters as contemporaneous evidence that the deceased did not understand what she was doing or the consequences of her actions (AT 31-32). Accordingly, I do not address the written submissions made by the parties in relation to those (no longer pressed) grounds.

The thrust of the submission in relation to Ground 2(a) appears to be to cast aspersions on Maranatha staff (in particular), the appellant arguing that the only available inference (in circumstances where the evidence demonstrated that during COVID Mr Doran was able to arrange meetings outdoors with the appellant and the deceased) is that Mr Doran (who did not give evidence) desired that the appellant be excluded (from management of the deceased’s finances) and arranged for the visit by Mr Knox to provide the deceased with advice in relation to making a fresh Power of Attorney. The appellant contends that the staff thereafter “mistakenly permitted” the first respondent to make a new will which excluded her (the deceased’s “only remaining friend”).

As explained in relation to Ground 1, I do not accept that the fact that Maranatha staff arranged for the first respondent to visit the deceased on 22 September 2020 (for the purposes of arranging a new Power of Attorney to enable what Maranatha management clearly saw as difficulties in the management of the deceased’s finances) establishes that the deceased lacked the intention to make a new will. Further, the suggestion that Maranatha staff “mistakenly permitted” the first respondent to prepare a new will implies that the staff at Maranatha had some control over what instructions could be given by the deceased to the first respondent or how the first respondent was to act in relation to those instructions. That seems to me to be an extraordinary suggestion. Subject to her having testamentary capacity (that being one of the very issues here in dispute) the deceased could give whatever instructions she wished to the first respondent (or any other lawyer she might have retained). All the Maranatha staff did was to make the arrangements whereby the first respondent came to take those instructions from the deceased.

As to the asserted “exclusion” of the appellant, as already noted it was the appellant’s own decision not to obtain a flu vaccination that caused her inability to visit the deceased at Maranatha (other than in an outdoors setting), at least during those times where there was not an absolute lockdown of the facility irrespective of vaccination status; and, as the respondents submit, there was no obligation on the part of Maranatha (or right on the appellant’s part) for the appellant to be included in discussions concerning the replacement of the Power of Attorney or otherwise.

As to the evidence of subsequent events (such as the evidence that, after the making of the 2020 Will, the deceased was unable to explain the nature of the event on 22 September 2020 and a further three days later still indicated her dependence on the appellant), these are dealt with in Ground 9.

As the respondents point out, the contemporaneous Maranatha clinical notes contain numerous references to concern by the deceased as to her finances or as to her Power of Attorney (see the entries for 22 May 2020, 28 May 2020, 16 June 2020, 1 July 2020 and 17 July 2020), which contradicts any suggestion that concerns about the appellant’s role as attorney originated with Maranatha staff. In those circumstances, the complaint that Maranatha “excluded” the appellant from the discussions goes nowhere.

I accept that it was the staff at Maranatha who arranged the appointment with the first respondent at which instructions were given in relation to the Power of Attorney and, as his Honour found, the motivation for this on Maranatha’s part was to overcome perceived difficulties with the management of the deceased’s finances. I do not accept that this in any way demonstrates that the deceased did not understand what she was doing, or the consequences of her actions in relation to removal of the appellant as her attorney.

Ground 2 is not made good.

It is convenient to deal with Grounds 3 and 4 together.

Grounds 3 and 4 relate to the primary judge’s conclusions in relation to Dr Lonie’s evidence ([246]-[265], principally those at [255]-[265]). The appellant, in reply submissions, explains that the contention in Ground 3 that the primary judge was “required” to make the conclusions there set out is “reflective of the fact that the cases there cited by the respondents do not authorise the tribunal of fact to ignore compelling evidence which demonstrates that any such lay observations (given their limited scope) were unable to detect the presence of [the deceased’s] condition or to seek to establish (if that were by then possible) her capacity to make a will or the exercise of her knowledge and approval”. If this be understood as a submission that the evidence of Dr Lonie was compelling, then it would have been better so framed. The suggestion that the primary judge was “required” (in the sense of obliged) to accept expert evidence even if that be unchallenged cannot be accepted (see Vella v Permanent Mortgages Pty Ltd [2008] NSWSC 505 at [245]-[247]).

Insofar as the appellant cavils with perceived criticism by the primary judge that Dr Lonie had undue regard to the views of the appellant, this appears to be a reference to what his Honour said at [230], namely that “[h]ere again Dr Lonie appears to have had particular and, in my view undue, regard to Mrs Peacock’s account of why the appointment was made”. This points to the caution appropriately to be exercised in accepting at first blush the appellant’s account of events in assessing the deceased’s capacity.

His Honour made clear that Dr Lonie had conducted a thorough review of the medical and lay evidence and that her reports were thorough and clearly reasoned ([211]). In this regard, I note that Dr Lonie’s observations about the key medical and lay evidence appear to treat the pleading as evidence, rather than (as Senior Counsel for the appellant accepts a pleading is) simply assertion, i.e., matters to be proven at the hearing (see AT 20).

Complaint is made by the appellant that his Honour selectively, and erroneously, summarised Dr Lonie’s conclusions (at [211]-[214]). In that regard, the appellant complains that the primary judge omitted the “unchallenged” conclusions Dr Lonie reached at [17]-[19], [113] and [124] of her first report. Those references are to the following: that the evidence suggested that by September 2020 the deceased was no longer in a position, cognitively speaking, fully to comprehend and evaluate in order to decide the options available to her with respect to managing her financial affairs ([17]); that the deceased had lost insight into her cognitive and functional limitations ([18]); that the deceased lacked, at the relevant times, the ability to judge and appraise significant others in the process of weighing up the claims on her estate, as a result of the combined effects of her impaired, memory, reasoning ability and loss of insight ([19]); and that the deceased may not have retained an understanding of the overall value of her assets at the times she gave instructions for the 2020 Will ([113]). Also said to have been selectively and erroneously “omitted” are Dr Lonie’s recording that: the appellant did not understand why the deceased had ceased communications with her; the first respondent had in a file note expressed uncertainty as to why the deceased wished to disinherit the appellant; the deceased and appellant resumed “open, friendly and unrestricted communications”; the deceased seemed unable to remember or understand that the Public Trustee was managing her financial affairs; and the appellant expressed concerns to Maranatha staff regarding the deceased’s mental capacity and ability to understand the ramifications of her decision to appoint the Public Trustee as attorney ([124]).

I consider this criticism to be unfair to his Honour. The primary judge made clear that what was set out at [211]-[214] was a brief statement of Dr Lonie’s opinions before his Honour proceeded to consider in more detail Dr Lonie’s first report (from [216]) and, more briefly, her supplementary report (from [236]).

The appellant argues that the primary judge’s conclusion that Dr Lonie expressed an opinion “on point of the will’s rationality” ([263]) materially misunderstood the focus of Dr Lonie’s evidence both in her report and testimony. The appellant says that at no time did Dr Lonie purport to assess the 2020 Will’s rationality or the reasonableness of the disposition (cf [256], [263]).

Pausing here, what his Honour said at [256] was that, to say that the deceased’s reasons for wanting to disinherit the appellant do not “accord with her reality” or are “irrational”, was to express a view as to how, in Dr Lonie’s view, the deceased should rationally have regarded the appellant at the time (referring as support for this observation to [129] of Dr Lonie’s first report and [32] of the supplementary report). This followed an extract from Dr Lonie’s oral evidence when explaining the difference between an ability to recall matters such as the significance of a will and the ability to form a reasoned view as to who should inherit under the will (in which extract Dr Lonie said that expressing a will and preference did not necessarily imply that someone had made a reasonably informed decision “based in an accurate reflection of their reality” or that the person understood the consequences of that decision).

At [259], his Honour expressly noted that Dr Lonie did not couch her opinions in terms of the irrationality of the will itself but said that her conclusions rested to a significant extent on the disjunction between the deceased’s “reality” and her perception of it. At [263] what his Honour said was that he did not accept “the premise of Dr Lonie’s opinion on point of the will’s rationality”. Properly understood, what his Honour was saying at [263] must be read with his Honour’s observation at [259] (see above), his Honour there noting Dr Lonie’s emphasis that the deceased’s perception of the appellant during the latter half of 2020 was irrational because the appellant was a good friend and that the deceased failed to see this.

The appellant argues that Dr Lonie’s conclusions were material to the question as to the extent of the disorder of the deceased’s mind and, in particular, the loss of her executive function and her capacity for decision-making, saying that they “represented the most cogent longitudinal and systematic reasoning in relation to the extent of the effect of vascular dementia upon [the deceased] at the time of [the first respondent’s] first involvement in late 2020”.

The appellant also submits that Dr Lonie provided useful contextualisation of the detailed clinical record which supported her reasoning. The appellant complains that the primary judge failed to address Dr Lonie’s opinions that the evidence given by each of Mr Knox, Dr Langley, and Ms Flannery, by reason of their limited observations, was incapable of demonstrating capacity at the time at which the 2020 Will was made (cf [296], [297], [301]).

In reply submissions, the appellant refers to Dr Lonie’s evidence of dementia-driven mistrust and the deceased’s inability to regulate her emotions (see the reference to her report in the primary judgment at [211]). The appellant points to the observations of the lay witnesses as to the visible signs of anxiety and mistrust that the deceased displayed. In particular, the appellant says that the first respondent’s evidence of the deceased’s agitation, visible signs of anxiety, and being teary are all confirmatory of Dr Lonie’s opinion; that the evidence of significant functional decline that Ms Flannery observed in late 2020 makes sense when the effect of Dr Lonie’s evidence is considered; and that Ms Nedwich’s evidence of confusion (as documented in her file note) and her affidavit (at [18]-[20]) is given context through Dr Lonie’s detailed analysis.

The appellant emphasises Dr Lonie’s evidence that the deceased’s vascular dementia did not limit the deceased’s ability to use language to communicate with others or to have semantic memory.

The appellant argues that the fact that Dr Lonie did not meet with the deceased does not deny her the ability to express a relevant opinion based upon contemporaneous records and her many years of training and expertise as to the extent of the progression of the deceased’s disease and its effects on her cognition in late 2020. I have no difficulty accepting that proposition but I note that this is not the basis on which the primary judge ultimately reached a different conclusion as to testamentary capacity than that expressed by Dr Lonie.

The appellant further argues that Dr Langley’s opinion evidence was not compelling evidence in support of a finding of capacity, referring to a number of statements made by Dr Langley that are said to support the appellant’s contentions before his Honour (as recorded in the appellant’s submissions at first instance), which statements the appellant says were “omitted” (by which I understand the appellant to mean not expressly addressed by the primary judge). In that regard, I note the primary judge certainly addressed some of the allegedly “omitted” matters: lack of expertise at [157]; “advanced dementia” note at [166]; and lack of thorough examination at [177]. His Honour considered Dr Langley’s evidence generally at [181].

The respondents in their written submissions point to observations in the cases that the most valuable or compelling evidence is usually given by experienced lay observers (such as, in a probate case, an experienced solicitor who witnessed the will) (citing Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas) at [65] per Hodgson JA; [89] per Young JA). It is noted that similar comments have been made in relation to evidence from treating general practitioners (such as in Revie v Druitt [2005] NSWSC 902 at [34] per Windeyer J, contrasting evidence in reports of expert specialist medical practitioners who have never seen the deceased).

I accept the appellant’s submission that Dr Lonie did not expressly purport to assess the rationality or reasonableness of the 2020 Will. However, as the respondents submit, it is plain from her conclusions as to the deceased’s motivations and her comments concerning the treatment of the appellant that Dr Lonie did so.

As to Dr Lonie’s commentary on the evidence of other lay witnesses and the veracity or utility of their observations (Ground 4), the respondents say that this trespassed on the role of the Court in assessing and weighing evidence; and that the primary judge was correct to place little weight on evidence of that nature. The appellant’s response is that this must be seen in the context of the late preparation of the respondents’ evidence at first instance which necessitated that Dr Lonie read that material and revise her opinions if necessary.

I do not accept that the primary judge was obliged to conclude, by reference to Dr Lonie’s evidence, that the deceased lacked capacity or was incapable of forming sufficient knowledge and approval with respect to the 2020 Will (Grounds 3(a) and (b)). As already noted, a judge is not bound to accept expert evidence, even if unchallenged.

What his Honour was required to do, and did, was to assess Dr Lonie’s evidence in the context of the whole of the evidence before him, which included not only the contemporaneous medical and lay documents (such as the Maranatha clinical notes) but also the evidence of the lay witnesses.

The primary judge accepted that Dr Lonie’s opinions provided a sound basis to conclude that the deceased was suffering from some level of cognitive impairment at the time that she made the 2020 Will ([246]). However, his Honour was not obliged to draw, from that, the conclusion that the deceased’s cognitive impairment was such as to mean that the deceased lacked testamentary capacity or the ability to know and approve the will. Senior Counsel for the appellant accepts that a person with dementia can make a valid will (see AT 4, the criticism there being made as to the manner in which the deceased’s testamentary instructions were taken).

His Honour gave careful analysis to Dr Lonie’s report and testimony.

As already noted, Dr Lonie accepted that the deceased was likely to have retained a sound understanding of the making and effect of a will ([107]) and Dr Lonie accepted that the deceased was likely to have capacity to express her desire or preference to change her will and to be capable of communicating her desire that the appellant get nothing of hers.

Dr Lonie observed at [122] of her first report that “the primary motivating factor underlying [the deceased’s] decision to alter her will, related to perceptions of abandonment and mistrust on the part of [the appellant] around the management of her financial affairs”. Dr Lonie concluded at [129] of the first report that the deceased’s “loss of ability to reason and to judge and appraise significant others in this context prevented her from weighing the claims on her estate in a manner she otherwise would have, were it not for the cognitive and behavioural impacts of her Major Neurocognitive Disorder due to Vascular [D]ementia”. In cross-examination, Dr Lonie said that “expressing a will and preference doesn’t necessarily then imply that somebody’s made a reasonably informed decision that’s based in an accurate reflection of their reality, or that they understand the consequences of that decision”. In other words, Dr Lonie was careful to draw a distinction between the ability to communicate and the ability to reason. Dr Lonie considered that the deceased’s cognitive impairment may have affected the deceased’s ability to make a rational decision (thus importing Dr Lonie’s assessment of the “reality” of the situation). In the present case, the testamentary disposition under the 2020 Will was hardly a complex one.

His Honour ultimately concluded that Dr Lonie’s analysis of the deceased’s capacity turned heavily on Dr Lonie’s own perception of whether the 2020 Will was fair to the appellant given the circumstances; and that Dr Lonie’s conclusion that the deceased was incapable of weighing the claims of beneficiaries turned heavily on Dr Lonie’s conclusion that it was “irrational (or at least unreasonable) to disinherit [the appellant]” ([258]). Having carefully read Dr Lonie’s reports and her oral testimony, I do not accept that his Honour erred in those conclusions.

As to the contention in Ground 3(c) that the primary judge should have concluded that the deceased was confused as to her finances and had had her mind poisoned against her only available friend (the appellant) such that her proposed distribution of assets to the second respondent was irrational, this appears to revive the abandoned contention (Ground 2(c) that there was no rational basis for the 2020 Will). In any event, the primary judge dealt with the submission as to the asserted confusion in relation to the deceased’s finances. To my mind it was sufficient that the deceased understood that she owned her home, that she received two pensions, and that she had money in a bank account ([249]). It was not necessary that the deceased knew the then approximate value of her home or the amount held in her bank account. In Kerr v Badran [2004] NSWSC 735 (at [49]) Windeyer J stated in effect that knowledge of the extent of the estate does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset.

I do not accept that his Honour erred in not concluding that the deceased had had her mind “poisoned” against the appellant. I understand the appellant’s contention in this regard to relate to Dr Lonie’s evidence that the deceased’s cognitive impairment “poisoned” the deceased’s mind (the example being given that the deceased was unable to appreciate that it was impossible for the appellant to visit during COVID) (see at [257]). However, the appellant’s own evidence disposes of this point. The appellant knew that the deceased was angry because the appellant would not obtain a flu vaccination to enable her to visit her at Maranatha. This does not support a conclusion that the deceased had a “poisoned” mind in so thinking. The fact was that during COVID (apart from periods of absolute lockdown) the refusal or unwillingness of the appellant to get a flu vaccination did mean that the appellant was unable to visit the deceased at Maranatha (unless an outdoor visit could be arranged). If it is intended by this contention to be suggested that the deceased’s mind was poisoned in the sense that she was suffering from a delusion at the time (as the appellant had “formally submitted” to his Honour), there is no error in his Honour’s conclusion that neither Dr Lonie’s report nor the lay evidence allowed him to reach that conclusion ([262]).

As to the contention in Ground 3(d) that his Honour ought to have concluded that the deceased was labouring under a mistaken belief that the appellant was not willing or able to help her, the fact of the matter is that (despite attempted telephone calls and the letter sent at the time of her resignation as Attorney professing a willingness to help) the deceased’s perception that the appellant was not helping her was not irrational in circumstances where the appellant was not regularly visiting her.

Ground 3 is not made good.

As to Ground 4, this is a complaint as to the weight afforded by the primary judge to Dr Lonie’s evidence and that of the lay witnesses, respectively. I do not accept that error has been shown in this regard. As already noted, his Honour carefully reviewed Dr Lonie’s reports and evidence, including Dr Lonie’s observations as to the limitations on the evidence of the lay witnesses. His Honour was clearly aware that Dr Langley was not an expert in the field of expertise in which Dr Lonie is qualified but pointed to the significance of Dr Langley’s experience in treating elderly patients in full-time residential care, including patients with cognitive impairments ([276]). I do not accept that his Honour erred in ultimately according weight to the observations of Dr Langley and each of the first respondent and Ms Flannery, when determining that the deceased had testamentary capacity as at the time she gave instructions for and executed the 2020 Will, particularly when Dr Lonie’s report, insofar as it considered the disjunction between the “reality” of the deceased and her perceptions of it, appears to have turned on the rationality of the decision to disinherit the appellant (a decision that his Honour accepted, and I agree, was rational in the circumstances that then confronted the deceased).

The complaint made more than once in the oral submissions was to the effect that his Honour worked backwards from the outcome of the will in assessing capacity to make the will. However, that criticism seems to me to be unfair in circumstances where Dr Lonie was looking to the rationality of the testamentary disposition to assess whether the deceased had the capacity to reason or weigh claims on her testamentary bounty. This is effectively approaching the question of incapacity from different sides of the same coin (as recognised by the abandonment of Grounds 2(b) and (c) – see AT 31).

Ground 4 is not made good.

Turning first to Ground 5(a), the objection taken to Ms Flannery’s evidence (which was contained in [21] and [26] of her affidavit) that the deceased said many times that she did not want the appellant to “get anything”, when no time frame was provided, was, as to [21], based on s 135 of the Evidence Act 1995 (NSW) (namely that it was of no probative value as the statements were at a level of generality that was unfairly prejudicial and incapable of a response and would result in an undue waste of time) and, as to [26], the objection was as to relevance.

The appellant accepts that the statement “[s]he said this many times” related to the earlier statement that Ms Flannery said had been made to her by the deceased that “I do not want her [the appellant] to have anything of mine”. However, the appellant argues that there is nothing at [19] of Ms Flannery’s affidavit (to which the respondents refer) to support for the primary judge’s finding at [97] that those statements were made by the deceased “on no less than about 20 occasions in late 2020, including in August and September”. The appellant argues that there is nothing to support that link.

The appellant says that the reference to August 2020 (at [19] of Ms Flannery’s affidavit) is to when Ms Flannery began working in the high needs section of Maranatha after a long break. The appellant argues that, given that Ms Flannery’s understanding of the need for the first respondent’s return visit to the deceased in November 2020 was based upon what she had been told by Ms Giusti, the inference is that Ms Flannery first heard of any testamentary discussion well after the first respondent’s visit and proximate to the time of Ms Giusti’s departure. I do not accept this. There is no necessary or obvious link between the conversation with Ms Giusti (which I accept occurred after the 22 September 2020 meeting) and the conversations between Ms Flannery and the deceased in which the latter said that she did not want the appellant to get anything of hers; and no reason to infer that the anger expressed by the deceased to Ms Flannery about the appellant was only in conversations after the meeting with Ms Giusti.

Given that Ms Flannery returned to work in the high needs care ward from about August 2020 and that her evidence was that she saw the deceased very regularly (between three and five times each week), there is no reason to think that Ms Flannery’s estimate that the deceased had made the statements (about not wanting the appellant to get anything of hers on no less than 20 occasions) was referring only to conversations after the 22 September 2020 meeting; and the context in which the affidavit refers to these conversations supports the conclusion that they included conversations from August 2020. I note also that the respondents argue that if the appellant wished to contend that the relevant conversations did not occur prior to 22 September 2020 this should have been put to Ms Flannery.

While the respondents refer in this context to notes in the Maranatha records in August 2020 about the deceased’s anxiety in relation to long-standing issues with the appellant or “POA issues” and to the fact that the deceased declined on 6 August 2020 to speak with the appellant, I accept that those clinical records refer only to “POA” issues (and not to any wish by the deceased to disinherit the appellant).

That said, I do not accept that the primary judge erred in admitting into evidence (and giving probative weight to) Ms Flannery’s evidence to the effect that the deceased did not want the appellant to get anything out of her estate. As to the admission of the evidence in the first place, the difficulty posed by the lack of an express time frame for the alleged conversations was one that it could be assumed could be tested in cross-examination and it is hard to accept that this generality rendered the appellant unable to respond to the evidence or that it would lead to an undue waste of time (as the appellant asserts). As to the probative weight to be accorded to that evidence, the primary judge was best placed to assess the reliability of Ms Flannery as a witness. The probative weight of those statements being made was, of course, that the conversations spoke to a desire to disinherit the appellant, undermining the force of the complaint as to the “closed questions” put by the first respondent as to whether the deceased wished to make a new will.

I do not accept that it was not open to the primary judge to make any relevant finding as to the deceased’s capacity to give instructions or to make a new will on the basis of this evidence, as the appellant contends.

Ground 5(a) is not made good.

As to Ground 5(b), there was an overarching objection by the appellant to Dr Langley’s evidence on the basis that Dr Langley: conceded that it was outside his area of expertise to express any opinion whether a patient had dementia; did not undertake any formal assessment of the deceased’s cognitive abilities; and offered no reasoned basis for the opinions he expressed with respect to the deceased’s cognitive (mental) and/or testamentary capacity at the relevant time. The appellant accepts that Dr Langley may have been in a position to provide evidence of his observations if he had undertaken any kind of assessment of the deceased but says that this did not occur in the course of him treating the deceased. Additional objections were taken to various paragraphs of Dr Langley’s affidavit, including variously as to form, relevance, s 135, conclusion/opinion and the like.

The appellant submits that this evidence was far from “direct and probative” (as his Honour found at [158]). The appellant complains that Dr Langley made limited (if any) factual observations and that his evidence comprised conclusions without any reasoning or specific observations to support them.

In this regard, the appellant points out that Dr Langley expressed regret that, when asked by Ms Flannery (on 19 November 2020) to express a view about the deceased’s capacity to understand her financial affairs, he did not decline her request. The appellant refers to further statements made by Dr Langley in his evidence as set out in the closing submissions at first instance said to be concessions by him. These go to matters such as: dementia and cognitive assessments are not within his areas of expertise; that early dementia is easy to miss and he may have missed it; he had inaccurately recorded that the deceased had advanced dementia; that he did not undertake any assessment of the deceased’s cognitive ability; and that he would be in a better position to express views about her cognition had he undertaken an assessment.

The respondents point out that, as the primary judge observed, Dr Langley had been a medical practitioner for 39 years; he had been in practice as a rural GP since 2000; he had a large number of geriatric patients, including 27 patients in residential nursing homes; and each year he managed around 500 patients who were suffering from some form of dementia or declining cognition ([156]). They argue that the primary judge correctly concluded that, while Dr Langley was not an expert in the field of dementia, he gave direct and probative evidence of what he saw the deceased do and what he heard her say at the time ([157]-[158]) and he was in a position to express a view as to the deceased’s capacity.

As to the admission of Dr Langley’s evidence, he was clearly in a position to give evidence as a treating doctor of his observations of the deceased. The objection is as to the admission of his opinion that the deceased was not suffering from any relevant cognitive disability. I do not agree that this opinion was inadmissible. Although Dr Langley does not have expertise as a geriatrician or neuropsychologist, he is a medical practitioner with experience in dealing with elderly patients suffering from deficits in cognition. Insofar as objection was raised to Dr Langley’s evidence being expressed in conclusory terms, the primary judge accepted that Dr Langley had sufficiently identified the basis upon which he formed the view that the deceased had capacity, in part based on the discussions he had with her on 19 November 2020 and also informed by the many interactions he had with her in the preceding months and years ([182]-[184]). I see no error in that conclusion.

As to the contention that the opinion of Dr Langley as to the deceased’s capacity had no probative weight and that it was not open to the primary judge to make any relevant finding as to the deceased’s capacity on the basis of that opinion, again I disagree. The primary judge was in a position to weigh the limitations of that evidence (i.e., that Dr Langley conceded his lack of expertise in dementia and cognitive assessments; and that he had not conducted a cognitive assessment of the deceased) against his observations of the deceased in the interactions he had with her over the time in which he had treated her. It is recognised in various of the authorities, including Zorbas, that observations of lay witnesses can be valuable in assessing capacity. Here, Dr Langley had considerable experience dealing with elderly patients and managing patients with cognitive impairment. His opinion based on his observations of the deceased was admissible and was able to be weighed in the balance with all the other evidence (including that of Dr Lonie). No error was made in the primary judge so doing.

Ground 5(b) is not made good.

These grounds challenge the findings that the deceased’s relationship with the appellant had materially deteriorated and that her anger towards the appellant was justified or rational.

Grounds 6 to 8 will be dealt with collectively, raising as they do, various complaints in relation to the findings as to the deterioration of the relationship between the appellant and the deceased by reference to the appellant’s management of the deceased’s finances.

As to Ground 6, the appellant expresses some doubt as to whether there was a finding at [56] that the appellant’s management of the deceased’s finances was deficient so as rationally to justify any anger from the deceased towards the appellant in September 2020 or at any other time but, if there was, challenges such a finding.

As to Ground 7, the appellant asserts various errors by the primary judge: (a) in attributing to her any material responsibility for the breakdown in her relationship with the deceased by May 2020 or that it was materially worse by the middle of March 2020; (b) in finding that she was responsible for any poor financial management of the deceased’s finances; (c) in finding that the appellant’s unwillingness to receive the flu vaccination was the undoubted cause of the breakdown in the relationship; and (d) in failing to accept that it was irrational of the deceased to be upset that the appellant had stopped visiting in relation to her finances. It is contended that the primary judge ought to have held that the deceased’s anger was an irrational symptom of her cognitive impairment.

Grounds 6 and 7 obviously overlap insofar as they go to findings as to any poor financial management.

As to Ground 8, the appellant’s complaint is that his Honour failed to make a finding as to the reason why (despite her view that the deceased lacked capacity to understand and make decisions about her financial affairs) the appellant sought to involve the deceased in decisions related to her financial affairs.

Turning to the first of these three grounds, the first thing to note (as to Ground 6) is that the findings at [56] were that the appellant “seem[ed] not to be well equipped to manage the situation [in respect of the financial arrears with Maranatha during 2019]”; that the appellant was very slow to put a system in place that allowed the deceased’s account with Maranatha to be kept up to date; and that the appellant was not proactive in managing issues such as this (the financial arrears) on the deceased’s behalf. In those circumstances, the emphasis placed by the appellant on her setting up and implementing a system from May 2020 to enable payment of Maranatha accounts without consultation with the deceased is hardly to the point (indeed, it rather reinforces the finding that the appellant was slow in managing such issues).

In any event, the finding at [56] was not expressed as a finding that the appellant’s management of the deceased’s finances was deficient “to justify any anger from [the deceased] towards [the appellant] in September 2020 or at any other time”. The findings that were made at [56] (as noted at [146] above) were in my opinion supported by the evidence.

Ground 6 is not made good.

The finding challenged by Ground 7(a) is the attribution to the appellant of material responsibility for the breakdown of the relationship with the deceased by May 2020 or that it was materially worse by mid-March 2020. This aligns with the errors asserted in Grounds 7(c) and (d), which are considered below.

Ground 7(b) contends error in the finding that the appellant was responsible for any poor financial management of the deceased’s finances. I accept that the finding at [59] that the difficulties with the deceased’s finances in 2019 and 2020 were the result of poor financial management, not a lack of funds, must inferentially refer to the appellant’s financial management (since the appellant maintains that the evidence establishes that she had full financial control of the deceased’s finances from April 2019 until her resignation as the deceased’s attorney – see below). I also note the finding made by his Honour that the appellant managed the deceased’s finances “opaquely and haphazardly” ([225]).

The appellant, in her rule 51.36(2) statement, challenges various factual findings in this regard.

Relevantly, the appellant challenges the findings at [52], [54] and [55] as to: her being either unable or unwilling to assume full control of the deceased’s finances; her having no role in ensuring that there were funds available for the Visa card account; her generally only being able to pay Maranatha’s bills with the deceased’s cooperation; and that it seemed that the same difficulty of payment existed for some other costs.

The appellant maintains that the evidence established that she had full financial control of the deceased’s finances until she was requested to resign her appointment as attorney and had set up systems and implemented processes to pay and keep track of the deceased’s accounts (referring to her affidavit at [30]-[31], [37]). The appellant also explains the difficulty with payment of the gardener’s bill as due to the deceased’s unwillingness to pay him (which I note is consistent with the primary judge’s finding as to the need for the deceased’s cooperation) (see the appellant’s affidavit at [43]).

I am not persuaded that those factual challenges are made good. I have already noted that the systems put in place for payment of the Maranatha accounts were not implemented until May 2020, on the appellant’s own evidence. The findings in relation to the appellant’s use of the Visa card or how it operated appear to have been based on evidence given by the appellant in cross-examination. The finding as to the need for the deceased’s cooperation in the payment of bills also accords with the appellant’s evidence (as noted above), at least until May 2020. The conclusion that the appellant was either unable or unwilling to “assume” full control of the deceased’s finances follows from the evidence as to the delay in setting up systems for payment of accounts to enable payment without the deceased’s cooperation and as to the operation of the Visa card.

In her r 51.36(2) statement, the appellant also takes issue with the description by his Honour at [53] of use by the deceased of a satchel to organise bills and receipts and other records, the appellant saying that the evidence was that it was she (the appellant) who used the satchel kept in the deceased’s room at Maranatha to organise paper copies of receipts (the appellant’s affidavit at [74]; [19]). The appellant says that the deceased was incapable of organising the receipts (the appellant’s affidavit at [38],[19]). Nothing in my opinion turns on whether the deceased can be said herself to have “used” the satchel to organise financial records (as opposed to her keeping the satchel in her room and the appellant using it to store records). His Honour noted that the appellant had bought the satchel and said that the two would place documents in the satchel. There is nothing to suggest that his Honour regarded this as an aspect of any poor financial management for which the appellant was responsible.

As to the responsibility for difficulties in the management of the deceased’s finances, the appellant points to the evidence noted by the primary judge (at [54]) that the deceased did not wish to pay the fees to Maranatha in any event; and to the evidence before NCAT’s guardianship division (recorded in its decision of 23 February 2021) which included statements from the deceased which denied the existence of any indebtedness ([12], [13], [14]). The appellant notes that this was after confusion by the appellant as to who was, in fact, managing the deceased’s finances (see [10]-[11]). Further, the appellant says that the account statement cited by the primary judge in relation to the NCAT application (at [69]) did not establish that the deceased was “constantly in arrears” during the period of management by the appellant during the whole of the 2020 year; rather, there was timely payment in June, July and August 2020. Reference was also made to the complete Maranatha accounts. (Pausing here, the assertion by the appellant of timeliness in the payment of Maranatha’s accounts rather cuts across her submission that the management at Maranatha was seeking to exclude her because of difficulties in the payment of the deceased’s accounts and, in any event, timeliness after May 2020 does not address the difficulties experienced with payment of those accounts before then.)

The sensitivity the appellant displays in relation to any criticism of her management of the deceased’s finances is perhaps not surprising but it fails to grapple with the real issue, which is as to the anxiety of the deceased (recorded in contemporaneous clinical notes) in relation to “POA” issues. Whether or not the conclusion by his Honour that there was poor financial management was correct, I do not accept that anxiety or concern on the deceased’s part as to the management of her finances was irrational in circumstances where, from March 2020, the appellant had largely stopped visiting her at Maranatha (other than the few outdoor meetings) and hence was unable to consult with the appellant in person as to the position and where Maranatha was evidently expressing concern as to arrears in payment (which led to Mr Doran raising the appointment of the NSW Trustee and Guardian for the purpose of managing the appellant’s finances). I do not accept that Ground 7(b) is made good.

Grounds 7(a), (c) and (d) relate to whether the relationship between the deceased and the appellant was materially worse by the middle of March 2020 and as to the cause of the breakdown of the relationship by May 2020 (and whether the deceased’s anger towards the appellant was irrational).

As to the challenge to the finding at [65] that the relationship between the two was materially worse from mid-March 2020 and “both of them knew it”, the appellant points to the outdoors meeting on 10 March 2020, at which she says the deceased gave an assurance that she would receive her entire estate (see the appellant’s affidavit at [60]) and to evidence that she continued to assist the deceased, endeavoured to communicate with her and showed concern about her welfare as a friend (reference here being made to letters written to the deceased). I do not agree that his Honour erred in making this finding, which was made in the context of his Honour having referred to the Maranatha notes that record the deceased being upset on 12 March 2020 that the appellant had not returned her passport and passbooks ([63]).

The appellant further takes issue with the finding that by May 2020 the relationship had “deteriorated fairly dramatically” (at [58]) and (at [70]), contending that this was unsupported by the evidence. Again, the appellant points to attempts that she made to communicate with the deceased. In this regard, the appellant challenges the factual finding (at [70]) that, as at May 2020, there was testimonial evidence from Ms Flannery that the deceased was angry with the appellant for “as [the deceased] perceived it, abandoning her”. In particular, the appellant disputes that Ms Flannery gave testimonial evidence that established any anger in May 2020, noting that Ms Flannery was not involved with the deceased’s care in May 2020 (referring to Ms Flannery’s affidavit at [18]-[19]). As to this finding, his Honour did not make a finding at [70] that Ms Flannery’s evidence was directed to any interaction with the deceased in May 2020. Rather, his Honour commenced by saying that by about May 2020 the situation between the two had deteriorated quite seriously. The primary judge then said that:

Properly read, the above extract indicates that the primary judge was referring to Ms Flannery’s evidence as showing that the cause of the deceased’s anger towards the appellant was the deceased’s perception that she had been abandoned by the appellant. His Honour was not attributing Ms Flannery’s observation as to the deceased’s anger to anything perceived or observed by her in May 2020 (at a time when Ms Flannery had not returned to the high needs care facility). The evidence of Ms Flannery as to her conversations with the deceased in August and September 2020 supports the statement made by his Honour (at [70]).

The finding that “an” undoubted cause for the breakdown in the relationship was the appellant’s unwillingness to get a flu vaccination and therefore her inability to visit Maranatha, which made the deceased angry and upset ([66]), was supported by the appellant’s own evidence that the deceased was angry and would not speak to her because she would not get a flu vaccination. The suggestion that his Honour erred in concluding that this was a cause (not the sole cause) of the relationship breakdown is not tenable in light of the appellant’s own evidence. The fact that the appellant attempted to make contact by telephone with the deceased to discuss the suggestion by staff of Maranatha that the NSW Trustee and Guardian ought be appointed does not assist the appellant. The appellant accepted that the deceased was angry and upset about the appellant’s refusal to obtain a vaccination. Although the appellant says that the evidence did not establish that the deceased refused to take the appellant’s telephone call in relation to the topic of the appointment of another guardian, the Maranatha notes record at least three occasions before 22 September 2020 when the deceased either declined to take the appellant’s call or indicated that she did not wish to speak to her, see clinical notes for 1 July 2020, referring to what occurred on 29 June 2020; 21 July 2020 and 6 August 2020.

In any event, it cannot be disputed that, from about March 2020, the appellant ceased to make regular in person visits to the deceased at Maranatha and, on the appellant’s own evidence, the deceased expressed anger that the appellant would not obtain a flu vaccination to enable her to do so.

These sub-grounds of Ground 7 are not made good.

As to Ground 7(d), in my opinion his Honour did not err in failing to accept that it was irrational for the deceased to be upset that the appellant had stopped visiting her (whether that be in relation to her finances or otherwise). Irrespective of the matters set out in Grounds 7(d)(i)-(vi), it cannot be said to be irrational for someone in the deceased’s position to be angry and upset that her only friend was not prepared to have a vaccination in order to be able more regularly to visit her (and to consult with her about her finances, which the appellant accepted was a matter about which the deceased had expressed a high level of anxiety in the past). I agree with his Honour’s views expressed at [263]. Indeed, the deceased had displayed the same response when she felt abandoned by the Schefflers.

I therefore cannot accept that his Honour ought to have held that the deceased’s anger was an irrational symptom of her cognitive impairment. As his Honour explained at [257]-[259], the difficulty with Dr Lonie’s conclusion that the deceased’s response to the appellant ceasing to visit the deceased was irrational was based on Dr Lonie’s understanding of the facts (namely, that it had been “almost rendered impossible” for the appellant to continue to assist the deceased) which was only partially true (because the appellant could have visited the deceased at times during the relevant period had she not refused to be vaccinated).

Ground 7(d) is also not made good.

Ground 8 in essence complains that the primary judge failed to make a finding as to the reason why the appellant sought to involve the deceased in decision making in relation to the deceased’s financial affairs despite holding the view that the deceased lacked capacity to manage those matters herself. I accept the respondents’ submission that the internal motivations of the appellant are not relevant to any finding of capacity in respect of the deceased. No finding of the kind contended for by the appellant was required to be made in order to determine the issues in dispute before his Honour.

Ground 8 is not made good.

Ground 9 (although framed as a failure to find that the contemporaneous evidence “compelled” such a finding) is, in substance, a complaint that the primary judge ought to have found that the deceased had no proper understanding of her disposition or the effect of her actions as at 19 November 2020. The appellant’s notice of appeal sets out (at (a)-(g)) the evidence on which the appellant relies for that contention, that evidence spanning from the day after the 22 September 2020 meeting when instructions for the 2020 Will were taken until as late as 5 August 2021 (see as extracted above).

The respondents submit that the appellant’s contention in Ground 9 ignores the evidence of the first respondent’s conversations with the deceased on 22 September 2020 and 19 November 2020, respectively, including the deceased’s awareness of matters such as her existing will, under which the appellant was her beneficiary and executor, and her assets; and the deceased’s complaint that the appellant did not help her anymore. The respondents note that at the second meeting, when asked whether she had anyone to whom she wished to leave her estate, the deceased said that she did not and volunteered that she was happy to leave her estate to the Sydney Opera House.

The respondents say that the matters referred to in sub-Grounds 9(a)-(c) (the matters noted in clinical notes on 23 September 2020 and the assessment on 26 September 2020, as well as the deceased’s conversation with the appellant on 26 December 2020) are equivocal; and they note that the balance of the matters identified in Ground 9 postdate the giving of instructions and execution of the will by many months. The respondents argue that, in any event, those matters do not displace the weight that the primary judge placed upon the first respondent’s evidence.

In reply submissions, the appellant maintains her contention that the evidence proximate to the time of the first respondent’s two visits to the deceased powerfully tells against the suggestion that the deceased had any proper understanding at the time that she made the 2020 Will.

In my opinion, the evidence from 22 September until 19 November 2020 did not “compel” a finding by the primary judge of lack of understanding by the deceased as to her testamentary dispositions or the consequences of making the 2020 Will. The record in the clinical notes on 23 September 2020 that the deceased was uncomfortable with being asked a lot of personal questions, even if this referred to the taking of instructions in relation to the 2020 Will, is not inconsistent with the deceased having an understanding at the time of the consequence of, or the instructions given for, the change of her will (which included the appellant being replaced as executor); or with the evidence (accepted by his Honour) of what occurred on 19 November 2020 when the 2020 Will was read out to the deceased and she volunteered that she wanted her estate to go to the Sydney Opera House. As to the evidence referred to at sub-Grounds 9(b) and (c), I accept that this is equivocal.

As to the balance of the evidence post-dating the 2020 Will, the matters at sub-Grounds 9(d) and (e) suggest that the deceased may have been confused as to who was then managing her finances but this could well simply have been confusion as to what the role of executor encompassed. The conversation referred to at sub-Ground 9(f) also indicates confusion but this is some four months after the 2020 Will was executed. The evidence of the events of 5 August 2021 is in a similar category.

The primary judge recorded at [288]-[289] the basis for his conclusion that the deceased had capacity to make the 2020 Will. I see no error in that reasoning.

Ground 9 is not made good.

For completeness, I note that there was also a factual challenge made by the appellant to the acceptance by the primary judge (at [118]) of the first respondent’s evidence that he did not believe that Ms Giusti had raised the question of a Power of Attorney because Ms Giusti herself held a concern about the deceased’s mental capacity to manage her finances. The appellant challenges this on the basis that the first respondent did not give this evidence. The appellant says that, if this is based on the evidence of Ms Giusti (presumably here referring to the clinical notes, as Ms Giusti herself did not give evidence), then this involves the drawing of an inference unsupported by the preponderance of the evidence.

To put what was said at [118] in context, at [117], the primary judge had noted that an aspect of the appellant’s case was that the first respondent had suggested that the NSW Trustee and Guardian be appointed because he did not at the time believe that the deceased had the capacity to manage her own finances. His Honour accepted that the first respondent had made the suggestion because he believed that the deceased needed someone to assist her physically with her finances. This finding is not challenged.

In cross-examination, the first respondent denied being concerned that the NSW Trustee and Guardian was coming in to manage the deceased’s finances when he was thinking about the deceased’s capacity. It was not put to the first respondent that he believed the issue of a Power of Attorney had been raised by Ms Giusti because she had a concern about the deceased’s mental capacity to manage her finances. The first respondent accepted that it was apparent from the conversation he had with Ms Giusti that she was concerned to have someone appointed as Power of Attorney “to sort out the debt”, which indirectly supports the primary judge’s finding. In any event, nothing turns on this finding.

Ground 10 (as amended in oral submissions) contends that the primary judge ought to have found: (a) that the deceased’s anger towards the appellant was “materially” the result (or a symptom) of her vascular dementia; and (b) that the deceased had not previously demonstrated interest in supporting the Sydney Opera House Trust.

As to the first of those contentions, this echoes the contention (at Ground 7), which has already been addressed, that his Honour ought to have held that the deceased’s anger was an irrational symptom of the deceased’s cognitive impairment and the conclusions reached in relation to that ground apply equally here. His Honour accepted Dr Lonie’s evidence as to the deceased having cognitive impairment but did not accept that the deceased’s anger at the appellant ceasing to visit her was irrational. I see no error in those conclusions. Nor do I accept that the evidence establishes that the deceased’s anger towards the appellant was materially the result of her vascular dementia, particularly in circumstances where there had been an identical reaction by the deceased in 2019 when she felt abandoned by the Schefflers.

As to the second of those contentions, I do not accept that the fact that the deceased had not previously expressed an interest in the Sydney Opera House Trust (or had not visited the Sydney Opera House to the appellant’s knowledge in the 17 years she had known the deceased) demonstrates irrationality on the deceased’s part (or a lack of reasoned intent, which is how the appellant argues this ground in reply submissions). I note, in passing, that the appellant in oral submissions was adamant that the issue of testamentary capacity was not to be determined by reference to the outcome of the will but this sub-ground appears perilously close to just such a result (AT 25/45-50).

The first respondent’s evidence explains how it was that the instructions for the bequest in favour of the Sydney Opera House arose. I am not persuaded that it is irrational for someone with an interest in German classical music to choose to make a bequest to an institution at which such music is played – much as a testator interested in art might choose to make a bequest to an art gallery to be used for a purpose connected with that testator’s interest in art without necessarily having visited that art gallery in the past. In any event, it was not disputed that the deceased had not previously expressed to the appellant an interest in the Sydney Opera House.

Ground 10 is not made good.

These grounds assert the misapplication by his Honour of the test for capacity in Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) by reason of an “overly lenient” interpretation of the requirement that the testator be able to weigh the claims of potential beneficiaries free from a disorder of the mind in the sense referred to in that case (at 565 – see below).

The well-known test for determining testamentary capacity was articulated by Cockburn CJ in Banks v Goodfellow at 565:

Myers J, writing extra-judicially in the Australian Bar Gazette (“Testamentary Capacity” (1967) 2(2) Aust Bar Gaz 3), referred to this test as requiring the three “R’s” (the need for the testator to have the capacity to remember, to reflect and to reason), stating that:

The appellant contends that the primary judge, in saying at [261] that “[t]he law does not insist on an ability to weigh claims in a way that is altogether unaffected by cognitive impairment” and that “the law does not require that the claims of potential beneficiaries be weighed free of all impairment and irrational thinking”, lowered the Banks v Goodfellow threshold and tolerated the particular impact of vascular dementia in the present case. The appellant also points to [246], where his Honour accepted that the deceased’s cognition was at least to some extent impacted by vascular dementia from about the end of 2017.

The appellant further submits that the statement to the effect that the law only required that the deceased be able properly to think about her property and how she was going to dispose of it (and that she did think about those things and chose to disinherit the appellant) was contrary to Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. The appellant contends that his Honour’s conclusion depended upon “an extreme and unreasonable use of (selective) inference the basis of which was that [the deceased] was sufficiently rational when there was no objective evidence to support that conclusion”. The appellant submits that the evidence was replete with examples of substantial cognitive impairment, including Dr Lonie’s supplementary report which considered the lay evidence given by Dr Langley, Ms Nedwich and Ms Flannery ([236]-[241]).

The appellant says that the further error in the approach of the primary judge is (as already adverted to) that the question is whether the deceased had the capacity of sound judgment and not whether the particular exercise of will-making (i.e., the testamentary disposition itself) was soundly made (referring to Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 (Petrovski) at [252] per Hallen J as to the difference between those two enquiries). The appellant complains that the primary judge considered only the latter (the outcome of the will) and paid no proper regard to the wider factual matrix. Reference is also made to Timbury v Coffee (1941) 66 CLR 277; [1941] HCA 22 at 283 (Dixon J) in this context.

In relation to this ground the appellant also relies on the factual challenges in Grounds 1-5 and 6-10 (which have already been considered above) as instances arousing questions of capacity and the deceased’s disorder of the mind on the totality of the evidence.

I accept the respondents’ submission that the primary judge correctly identified and applied the test for testamentary capacity (noting that his Honour referred to the formulation of that test by Kirk JA in Lim v Lim [2023] NSWCA 84 at [7]-[9]) ([10]-[14]). It is uncontroversial that a person who is suffering from some degree of cognitive impairment can still make a will (the question being whether the testator’s mental capacity is so affected so as to make the testator unequal to the task of disposing of his or her estate) (citing Bailey v Bailey (1924) 34 CLR 558 at 570-572; [1924] HCA 21 (Bailey v Bailey); Worth v Clasohm (1952) 86 CLR 439 at 452-453; [1952] HCA 67 (Worth v Clasohm)). In this regard, the respondents emphasise the observations of Kirby P (as his Honour then was) in Re the Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 295 to the effect that “slowness, illness, feebleness and eccentricity” in persons of advanced years will not ordinarily be sufficient “to disentitle the testator of the right to dispose of his or her property by will”.

The test for capacity is task specific. As the respondents note, it has been recognised that the simpler the will, the easier it will be to establish capacity and knowledge and approval (Dedakis v Deligiannis [2024] NSWSC 1018 at [108]); the more complex the testamentary task, the higher is the test for capacity (see White JA in Croft v Sanders [2019] NSWCA 303 at [126]). A testator who had been diagnosed as suffering some form of dementia has been found to have testamentary capacity in a number of cases (see, by way of example, d’Apice v Gutkovich, Re; Estate of Abraham (No 2) [2010] NSWSC 1333; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65; and Estate Rofe [2021] NSWSC 257 to which the respondents have referred). I accept that it was not necessary for the deceased to bring a perfectly balanced mind to the task at hand (see Boughton v Knight (1873) LR 3 P&D 64 at 66 (Hannen J)).

I am not persuaded that the primary judge erred in either the identification or application of the test for capacity. As the authorities (including those cited above) establish, the law does not require that the testator be free from cognitive impairment; rather, the question is whether the cognitive impairment is such as to affect the ability of the testator to understand the nature and effect of making a will; to understand the extent of his or her property (at least in broad terms) and to be able to comprehend and appreciate the claims on his or her testamentary bounty (i.e., to be able to remember, reflect and reason, as Myers J put it).

In the present case, the primary judge accepted that there was a level of cognitive impairment but was satisfied that the deceased was capable of understanding the nature of a will, her property, and the potential claims on her bounty. The real complaint here seems to be as to the last – the deceased’s ability to weigh the claims on her testamentary bounty (i.e., to reason as to the disposition of her estate). The primary judge’s finding that the deceased’s anger towards the appellant was not irrational is relevant to the deceased’s capacity to weigh the claims on her estate and does not, in my opinion, involve an impermissible reference to the outcome of the testamentary disposition to assess whether there was capacity to make it (cf the appellant’s submissions).

The law does not require that a testator act rationally in the disposition of his or her estate: it requires only that the testator be able to reason or weigh up the claims on the estate. In other words, if the deceased’s cognitive impairment precluded her from weighing the claims on her testamentary bounty, then she would not have testamentary capacity under the test in Banks v Goodfellow but if her cognitive impairment did not so affect her ability to do so then the fact that the deceased may have developed an irrational anger towards the appellant is not to the point (unless that persisted to the point of a paranoid or insane delusion).

The effect of cognitive impairment may fluctuate from time to time; and not all cognitive impairment is of such a degree or effect as to deprive a testator of testamentary capacity. Moreover, when assessing the capacity to reason, Dr Lonie appears to have drawn conclusions as to the rationality of the deceased’s anger towards the appellant, as reflected in the ultimate testamentary disposition (a reasoning process that the appellant here criticises).

In the present case, the primary judge weighed the expert evidence of Dr Lonie together with the lay evidence and the contemporaneous documents. I am not persuaded that his Honour did so selectively or without a proper appreciation of the evidence. His Honour accepted that the deceased understood the significance of making a will; that she knew what she owned; and that she understood that her previous will left everything to the appellant; and that she had consistently voiced her desire that the appellant should not receive anything (see [289]). His Honour made findings to that effect (see [288]). His Honour was entitled to place weight on the first respondent’s evidence as to the will-making process that took place on 22 September 2020 and 19 November 2020 in finding that the deceased had testamentary capacity on 19 November 2020. As referred to above, the deceased had expressed to Ms Flannery several times her anger towards the appellant and her desire that the appellant receive nothing from her estate.

Grounds 12 and 13 are not made good.

Ground 14 and the respondents’ Notice of Contention go to the issue of knowledge and approval in relation to the 2020 Will.

It is common ground that the issue of knowledge and approval of a will is distinct from the issue of testamentary capacity (see Petrovski at [255], [256] per Hallen J) and that the primary judge did not separately address the former. His Honour must have considered that the finding of capacity resolved that issue. While in some cases that might be the case, in the present case I consider that it was necessary for the issue of knowledge and approval to have been separately considered. To that extent, Ground 14 is made good.

I do not accept the respondents’ contention that it follows from his Honour’s finding of capacity that the deceased also knew and approved of the 2020 Will. While the beneficiary had no involvement in procuring the will; the deceased’s instructions were taken by an independent solicitor who was not known to any beneficiary of any of the deceased’s wills; and neither Ms Giusti (in whose presence instructions were taken) nor Ms Flannery (in whose presence the will was executed) derived any benefit under the 2020 Will (they being disinterested and independent as to the contents of the will), there were, nonetheless, circumstances which arguably invited suspicion in the present case.

The appellant has identified in Ground 14(a) a broad range of matters that she submits give rise to “suspicious circumstances” arising from the manner of the making of the will, including: circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense.

The respondents argue that, to the extent that the appellant seeks to rely on circumstances that do not bear upon the preparation and execution of the will, or its terms, those circumstances cannot give rise to the relevant suspicion (citing Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel) at [46]). By Ground 1 of their Notice of Contention, the respondents assert that there were no circumstances that excite the suspicion of the Court.

The enquiry into suspicious circumstances is concerned with the circumstances surrounding the execution of the 2020 Will (see Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451 per McPherson JA, in dissent but not on this point; and see also GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis) at [2.33]). The limits of the concept of “suspicious circumstances” cannot be regarded as settled (Mekhail v Hana [2019] NSWCA 197 at [171]-[172] (Leeming JA)). In Vernon v Watson [2002] NSWSC 600, Burchett AJ suggested at [23] that it was sufficient that a suspicious circumstance had a connection with the existence of the will, and that connection need not be temporal.

I consider that at the very least the matter identified at sub-Ground 14(a)(i) is a circumstance that would invite suspicion. So, for example, in Tobin v Ezekiel at [47], Meagher JA referred to the circumstances that may excite suspicion as including “the mental acuity and sophistication of the testator” (as well as “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”).

As to those other circumstances, here the 2020 Will was not particularly complex nor was the estate being disposed of and there was an opportunity (despite the complaint as to closed questions) for reflection in relation to the will. It cannot sensibly be suggested that the first respondent was not in a position to give independent advice. The proposal that his firm be the executor and receive fees arose in the course of the discussion as to who was the executor under the existing will and the receipt of professional fees by an executor is hardly unusual. The fact that the first respondent had not previously met the deceased does not in my opinion amount to a suspicious circumstance, given that the person who had arranged his attendance on the deceased (Ms Giusti) had no personal interest in the deceased’s testamentary disposition. Nor do the matters at sub-Grounds 14(v)-(xi) do so. Whether the first respondent complied to the letter with “accepted good practice” does not in the circumstances arouse suspicion in my mind. (Indeed, the first respondent’s conduct is hardly the most “suspicious” I have seen in my experience of disputes of this kind.)

Therefore, while I do not accept that there were no circumstances that would invite suspicion (cf Ground 1(a) of the Notice of Contention), I accept that the suspicious circumstances were far more limited than the appellant contends.

That said, for the reasons that follow, I do not accept that (whether by reason of the matters to which the appellant points in sub-Grounds 14(a)(i)-(xi) or by reference to the more limited circumstances that I have concluded arguably did invite suspicion), his Honour ought to have held that the first respondent (on whom it is accepted the burden of proof fell, as the person propounding the will) had failed to establish that the deceased had sufficient knowledge and approval of the 2020 Will.

The appellant submits that, by reason of the matters set out in sub-Grounds 14(a)(i)-(xi), the primary judge ought to have held that the first respondent was himself incapable of forming a view beyond mere speculation as to the deceased’s capacity; and says that it was not open for the primary judge to find otherwise (cf [268]-[273]). Further, or in the alternative, the appellant says that any evidence given by the first respondent as to what occurred at the time of the giving of instructions or the making of the purported 2020 Will should be given no weight; and thus he had failed to establish that the deceased had sufficient knowledge and approval of the 2020 Will (and the suspicion to the contrary had not been removed).

I accept the respondents’ submission that suspicion may be aroused in varying degrees and what is needed to dispel the suspicion will vary accordingly (the respondents citing Fuller v Strum [2002] 2 All ER 87; [2002] 1 WLR 1097; Tobin v Ezekiel at [48]; Worth v Clasohm at 453; Bailey v Bailey at 570 per Isaacs J; and Barry v Butlin (1838) 2 Moo PC 480 at 484; [1838] 12 ER 1089). If no more than slight, the suspicion may be easily dispelled (see Wintle v Nye [1959] 1 WLR 284 at 291). While the appellant argues that there is a multiplicity of converging circumstances in which the deceased came to make the 2020 Will (which ought to have raised a higher level of suspicion), in essence the suspicious circumstance in this case is the deceased’s mental frailty.

Ultimately, what must be determined on the balance of probabilities is that the deceased knew and approved the terms and effect of the 2020 Will; and that it be her true will (see Tobin v Ezekiel at [47]). In the present case, the deceased’s knowledge and approval was established on the evidence before the primary judge.

An appreciation of the legal effect of every clause in the will does not need to be established (see Kunc J in Phillips v Phillips [2017] NSWSC 280 at [131]). Rather, what must be shown is that the deceased understood that the deceased was executing a will and the practical effect of the central clauses in the document. Further, evidence that a testator actually read a will is not the only way of proving knowledge and approval; knowledge and approval may be shown by instructions prior to the execution of the will (see Astridge v Pepper [1970] 1 NSWR 542 (Astridge v Pepper) at 548 per Helsham J; Paraskov v Paraskos [2002] WASC 109 (Paraskov) at [50] per Pullin J; In the Will of Steward (deceased) [1964] VR 179; and Fincham v Edwards (1842) 163 ER 656). It is not necessary that a testator read every word, nor that the testator understand the legal effect of the words used (see In Re Horrocks (deceased); Taylor v Kershaw [1939] P 198 at 216 per Greene MR, Finlay and Luxmoore LJJ). This is relevant in circumstances where the appellant argues that the deceased was incapable of reading the will despite the evidence that she appeared to do so and was nodding as she did. An illiterate person can make a valid will (see Paraskov at [50]).

In the present case, the first respondent’s evidence (which the primary judge accepted) was that he clearly and succinctly read out the principal clauses of the 2020 Will to the deceased and confirmed with her that she agreed with them; and then asked further questions of the deceased as to her assets and anyone to whom she wished to leave her estate. The evidence of an experienced solicitor in such cases has been recognised as valuable (see Macfarlan JA, with whom Bell ACJ and McCallum JA, as their Honours then were, agreed, in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52]).

Thus, there is force to the respondents’ contention that, once it is accepted that the deceased had capacity to give instructions to the first respondent on 22 September 2020, the fact that the will conformed with those instructions and was read out to her on 19 November 2020 is compelling evidence of her knowledge and approval of the will (the respondents in this context referring to what was said by Helsham J, as his Honour then was, in Astridge v Pepper at 548 and to the observations of Mullins J, as the President then was, in Harrison v Petersen [2000] QSC 415 (Harrison v Petersen) at [56], a passage subsequently cited with approval by Estcourt J in Hookway v Hookway [2016] TASSC 28 at [259]).

The respondents place significance on the fact that, on 19 November 2020, the first respondent asked further questions of the deceased, in answer to which the deceased was able to identify her assets and said that she was happy leaving her estate to “the Opera House” (the last response being relied on by the respondents as demonstrating the deceased’s understanding of the will that had been read to her, its effect, and the consistency of her instructions and intentions).

The appellant challenges the manner in which the first respondent both took instructions from the deceased and explained the will to her and relies on the fact that the first respondent did not test the deceased’s ability to read or her comprehension more generally. The appellant also relies on Ms Flannery’s acceptance in cross-examination that she may have prompted the deceased as to the appointment on 19 November 2020 being for a will – though that does not gainsay the import of the deceased’s response to the further questioning. The appellant argues that the reliance placed by the respondents on Harrison v Petersen at [56] was misplaced because it pre-supposes a competent and uncompromised testator and only where there was the giving of “unequivocal instructions”, both of which the appellant says were absent in the present case.

In Tobin v Ezekiel at [48] Meagher JA (Basten and Campbell JJA agreeing) stated that:

I consider that Ground 1(b) of the Notice of Contention is made good. The process by which the first respondent took instructions as to the 2020 Will and then read out to the deceased its essential terms and confirmed with her that it accorded with her testamentary intentions amply supports the conclusion that the deceased knew and appreciated both the nature of the act of making a will and its effects; knew that her estate comprised her home and that she had two pensions and a bank account; and, most importantly, confirmed her wish that the estate go to the Sydney Opera House.

Grounds 15-17 go to the obiter finding in respect of the 2019 Will. They arise only if the 2020 Will is not admitted to probate.

As to Ground 15, while it may be accepted that the issue of the deceased’s testamentary capacity at the time of the 2019 Will was not an issue pleaded by the parties, and the 2019 Will was not subject to challenge by the respondents, I do not accept that it can be said that the question of the deceased’s testamentary capacity at that time did not arise in a practical sense during the course of the proceedings (insofar as the appellant was seeking an order for admission to probate of the 2019 Will and the evidence relied upon by the appellant to challenge incapacity as at the time of the 2020 Will clearly raised a question as to the deceased’s testamentary capacity the previous year). Therefore, while the appellant in a sense is correct in challenging the primary judge’s description of this as an issue in the proceedings (at [7(2)]), I see no error in the fact that his Honour proceeded to make the observations he did as to that question.

As to the assertion by the appellant that, since there was no challenge to the 2019 Will, there was nothing that required her to bring forward evidence to address those matters, this ignores that (as I explain below), while there are presumptions that arise where a will has been duly executed and is rational on its face, no grant of probate is made as of right (and hence if a judge before whom an application for a grant of probate is made considers that a question has arisen as to the deceased’s testamentary capacity then that judge must be affirmatively satisfied as to that issue). Thus, it is not a question as to whether there was some legal obligation on the appellant to bring forward evidence of capacity; rather, there was a forensic risk for the appellant in not adducing evidence as to capacity as at 2019 in circumstances where she was seeking probate of the 2019 Will.

Ground 15 is not made good.

Further or in the alternative to Ground 15, the appellant contends by Ground 16 that the primary judge ought to have held that there was no issue raised about the capacity of the deceased to make the 2019 Will, having regard to the parties’ pleaded cases and the prior conduct of the matter as noted in the letters of instruction to the joint expert and as formalised in the orders of the Court (referring to the framing of the questions which confined considerations of testamentary capacity to the 2020 Will). The appellant argues that the effect of this was that, if any of the appellant’s contentions as to the invalidity of the 2020 Will were made good, then the 2019 Will should proceed to a grant of probate.

The appellant challenges the primary judge’s observation at [297] that, if he were wrong about the weight to be given as to the evidence relied upon by the appellant to contend that the deceased lacked capacity to make the 2020 Will, then the evidence of Dr Lonie would be a strong basis to conclude that the deceased lacked capacity to make a will from much earlier than May 2019. The appellant says that Dr Lonie expressed no opinion about the deceased’s capacity to make a will in 2019.

The appellant also takes issue with the statement by his Honour (at [293]) that Dr Lonie had said in oral testimony that, in her view, the deceased had been suffering from “major cognitive impairment since 2017”. At [292], his Honour had commented that the evidence led in relation to the capacity to make the 2020 Will gave rise to a question whether the deceased had capacity 18 months earlier, i.e., when the 2019 Will was made.

The appellant notes that, in her oral testimony, Dr Lonie referred to a nursing home “physio’s entry” in 2017 that recorded concerns at that point of what was described as moderate cognitive impairment. Dr Lonie was there summarising the medical evidence. The appellant complains that Dr Lonie did not express the opinion attributed to her (referencing Dr Lonie’s first report at line 8). Relevantly, however, when asked as to the probability that the deceased did not have cognitive function as at 29 May 2019, Dr Lonie said that it was “indisputable from the medical evidence that there are serious concerns around [the deceased’s] cognition in 2017”. Accordingly, while the statement at [293] may have overstated Dr Lonie’s testimony, it cannot be disputed that Dr Lonie accepted from the contemporaneous medical evidence that there were serious concerns about cognition prior to 2019.

I have already addressed the fact that there was no pleaded case contesting the testamentary capacity of the deceased as at the time of the 2019 Will. For the reasons above, that would not have compelled the primary judge to admit the 2019 Will had his Honour concluded that there was no capacity as at 2020. For similar reasons, I do not accept that the fact that the parties jointly instructed the expert, Dr Lonie, only as to the issues of capacity/knowledge and approval in relation to the 2020 Will (with instructions as formalised by Hallen J’s orders) compelled the primary judge to admit the 2019 Will to probate if the 2020 Will was found to be invalid. Indeed, Dr Lonie herself, in oral testimony, said that the issue as to capacity as at 2019 had occurred to her and, contrary to the appellant’s submissions, Dr Lonie did express (albeit briefly) her view on that issue (see the transcript referred to above).

Ground 16 is not made good.

As to Ground 17, the appellant accepts that this ground depended on her succeeding on Ground 15 or Ground 16 (and hence in light of my conclusions above this will not arise). Nevertheless, I note that in the context of this ground, the appellant argues that the primary judge erred in finding that there was a requirement for her to have brought forward any evidence on matters not in issue between the parties (cf [298]). The appellant submits that such evidence was irrelevant and thus she had no such legal or evidentiary obligation. I have already addressed this above but in fairness to his Honour I note that at [298] he made no finding that there was a requirement for the appellant to bring forward such evidence; rather, his Honour simply noted that the appellant would have been in a position to do so (by calling her solicitor in these proceedings, who had taken instructions and witnessed the 2019 Will) to give direct evidence as to the circumstances in which the 2019 Will was executed. Nor can I accept that such evidence was irrelevant once it was appreciated that incapacity as at 2020 might raise doubt as to the issue of capacity in 2019.

As to the complaint by the appellant that his Honour erred in drawing any inferences against her in the proceedings for not bringing forward evidence as to the circumstances surrounding the execution of the 2019 Will (the appellant here referring to his Honour’s reasons at [299]), no such adverse inference was drawn at [299]. (For completeness I note that at [303] his Honour said that he would have inferred that Ms Park’s evidence – the reference to Ms Burke being a plain typographical error – would not have assisted the appellant.)

What his Honour set out at [299] was the response by Senior Counsel for the appellant to his Honour’s suggestion during submissions at the hearing that one available inference was that Ms Park’s evidence would not have assisted the appellant’s case in relation to either of the issues his Honour had identified at [7]. The appellant’s response, as noted at [299], was that: should the Court have any concern as to capacity at the time of the 2019 Will, the appropriate course would be for that to be determined separately; that the decision not to call Ms Park was made in circumstances where it was assumed that the question of capacity to make the 2019 Will could be dealt with separately; and (though there was no suggestion that this was in evidence) that Ms Park had kept a file note of her consultation with the deceased at the time of making the 2019 Will.

His Honour expressly put the appellant on notice as to the issue of the 2019 Will on the first day of the hearing. It cannot be said that the appellant did not have the opportunity to address that issue during the course of the hearing. As the respondents note, the appellant did not seek leave to adduce evidence until the final day of the hearing, after evidence had closed.

His Honour noted at [299] that application was made at the close of the oral submissions for the question of capacity to make the 2019 Will to be determined as a separate question under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in the event that it was necessary to determine it. His Honour noted that, given his primary conclusion (as to the 2020 Will) it was not necessary to deal with that application. (Nor, on my conclusions as to the above appeal grounds, would it now arise.) However, his Honour explained at [300], why he would not have acceded to that application, pointing out (correctly in my opinion) that the fact that no party contended for the conclusion that the deceased lacked capacity to make the 2019 Will would not have relieved the appellant (who, as I have noted, was seeking to have it admitted to probate in solemn form) from the need to persuade him that the deceased had capacity at that time in light of the evidence otherwise before his Honour.

In reply submissions in relation to Grounds 15-17, the appellant submits that the validity of the 2019 Will is plain on its face and hence the presumption of validity (Re Estate of Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 (Shorter v Hodges) at 709) applies absent challenge to its validity; and argues that, where the original of the 2019 Will and the affidavit of the executor had already been filed with the Court, any outstanding procedural matters ought to have been dealt with by ancillary orders or requisition from the probate registry; alternatively, that the matter should have been sent to the probate registry for a grant in common form. That, to my mind, misses the point. A doubt having arisen in the primary judge’s mind as to testamentary capacity as at 2019 cannot be fairly described as an “outstanding procedural matter”.

At [301], his Honour said, in effect, that this was not a case where capacity could be presumed from the due execution of a will that was rational on its face; rather, the evidence of Dr Lonie on the question of capacity as at 2020 at least gave rise to doubt as to capacity as at 2019. I agree.

For completeness, I note the authorities referred to by the respondents for the propositions that a grant of probate or administration is a public act; that no grant is made as of right (citing Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [292]); and that an order for a grant will not be made merely because parties have agreed that one should be made (Phillpot v Olney [2004] NSWSC 592 at [7]) or because the application is unopposed (Re Dowling [2013] NSWSC 1040 at [25]) or because the parties interested in an estate have consented thereto (see Smith v Smith; Estate of Smith [2007] NSWSC 116 by Windeyer J at [34]). The respondents also invoke the observations as to the proper approach of the Court to the question of whether a testator has testamentary capacity in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 at 180 (Williams, Fullagar and Kitto JJ).

Ground 17 is not made good.

Finally, Grounds 18-21 go to the issue of costs.

The first basis on which the appellant challenges the costs order made by the primary judge (that she pay the first respondent’s costs of the proceedings on the ordinary basis – see costs judgment at [50]-[56]) is her contention that she submits that the primary judge relied on matters which were not in fact the subject of any dispute between the parties and thereby erroneously considered that the appellant was required to establish testamentary capacity with respect to the 2019 Will (when capacity in relation to that will was never put in issue by any party ([7(2)]) or the only other interested parties) (Ground 18).

I have already in substance addressed the submission that the appellant, had she established a lack of capacity in relation to the 2020 Will, would have succeeded in propounding the 2019 Will and that she had no obligation to prove capacity with respect to the 2019 Will (cf costs judgment at [51], [52]).

The premise of the submission that the appellant would have succeeded in propounding the 2019 Will can only be that the appellant was propounding the will (which squarely contradicts the appellant’s denial that she was in fact propounding the 2019 Will (AT 60/25-37; see also appellant’s written reply at par 12 and oral submissions referred to earlier)). In submissions, the appellant sought to draw a distinction between seeking a grant of probate of the 2019 Will (which she did) and “propounding” the 2019 Will (which she maintained she did not) (referring to the relief claimed at [1]-[5], pleading at [1]-[7]). Nothing turns on any such distinction for present purposes. The concept of propounding a will is to propose or put forward a document for consideration and acceptance by the court as a valid will when applying for a grant of probate. Here, the appellant (both at first instance and in the relief claimed on appeal) was and is seeking to have the 2019 Will admitted to probate (in solemn form).

In any event, I do not accept that his Honour erred as to the conclusion (at [52]) that, had the appellant succeeded in her primary contention as to lack of capacity to make the 2020 Will, she would not have succeeded in propounding the 2019 Will.

The appellant also contends that, having accepted that the evidence raised a question as to the deceased’s capacity (see costs judgment at [47], [49]), the primary judge erred in having regard to the first respondent’s costs of the proceedings in determining that it would not be reasonable for the appellant to have her own costs satisfied out of the deceased’s estate contrary to the “usual exceptions” in relation to probate cases challenging capacity or at least that the appellant should not have to bear the first respondent’s costs of an otherwise reasonable enquiry (costs judgment at [53]). I consider this below.

Finally, the appellant complains that the primary judge failed to consider the question as to the allocation of substantial reserved costs (reserved by Lindsay J on 11 September 2023 by reason of the first respondent’s failure to comply with the court-ordered timetable and preparing additional evidence after the receipt of the opinion of Dr Lonie). The appellant argues that this created substantial unnecessary additional costs to her from July 2023. The appellant maintains that she should not be required to bear the extra costs incurred as a result of the respondents’ forensic choices and delay (costs which the appellant says they had earlier accepted it was appropriate for them to pay as a consequence of their actions).

The appellant contends (Ground 19) that, contrary to the costs order made by his Honour, the primary judge ought, in the proper exercise of his discretion, to have held that, by reason of the evidence given by the appellant and the opinions expressed by Dr Lonie (whether or not those opinions were ultimately accepted), it remained at all times reasonable for the appellant to have challenged the capacity of the deceased to have made the 2020 Will. The appellant again refers to his Honour’s acknowledgment that Dr Lonie’s evidence raises questions as to the deceased’s capacity in relation to the 2020 Will (costs judgment at [48]-[49]) and says that Dr Lonie’s evidence confirmed her (the appellant’s) own unchallenged observations as to the deceased’s decline from October 2019. The appellant submits that it was never suggested that her observations and assessment of her long-term friend’s decline were anything other than accurate and genuine. The appellant reiterates her complaint that the 2019 Will was not materially in dispute and her assertion that Dr Lonie did not express any opinion as to the deceased’s capacity to make the 2019 Will.

As to Ground 20, this again raises the issue of the reasonableness of the appellant in challenging the 2020 Will. The appellant contends that the primary judge ought to have held that, given there was a genuine level of doubt about the validity of the 2020 Will, she should not have to bear the costs of the plaintiff, nor should she have to bear her own costs of the proceedings; rather, that costs of her unsuccessful challenge ought be paid out of the estate (relying on the authorities cited in Ground 20).

Finally, as to Ground 21, the appellant contends that the primary judge erred in assuming that the appellant had made a forensic decision made on a mistaken belief that, should the issue have arisen, it would have been dealt with in some separate proceeding (costs judgment at [51]). The appellant argues that she could not have predicted that she would have had to prove the deceased’s capacity in relation to the 2019 Will in the circumstances. This ground can shortly be disposed of by reference to what his Honour was told by the appellant’s counsel (as set out at [299] of the primary judgment) as to the assumption that had been made that the question of capacity to make the 2019 Will was not in issue and the assertion that any issue that might be raised by the Court as to capacity in 2019 could be dealt with separately. On the basis of what his Honour was told, there cannot fairly be said to have been an error in the statement challenged by Ground 21. It is difficult to accept that it would come as a surprise to someone seeking the admission of a will to probate in solemn form, in the context of a challenge by that person to the deceased’s testamentary capacity to make a will the following year, that questions of capacity might be raised in the mind of the judge hearing the challenge to the later will and hence the possibility that those doubts might need to be dispelled by the person seeking probate of the earlier will.

The respondents point out that, in the exercise of his discretion as to costs, the primary judge: identified the considerations that may apply when exercising a discretion as to costs in a probate suit; considered the fact that the appellant had sought relief on the basis of a testamentary contract and estoppel, which was pressed during the hearing but abandoned immediately prior to final submissions (costs judgment at [44]-[45]); and considered that, even if the appellant had succeeded in her primary contention about the deceased’s lack of capacity to make the 2020 Will, then the evidence on which she relied in making her case would have also impugned the 2019 Will.

The respondents submit that it is relevant that the appellant made the forensic choice not to adduce evidence of the solicitor who took instructions for the 2019 Will, despite that solicitor being the solicitor on the record for the appellant in the proceedings and present at Court during the hearing (a matter to which I have already adverted). The respondents also note that his Honour also considered the size of the estate, and the impact on the estate of the costs order sought by the appellant. In reply submissions, the appellant submit that the primary judge did more than “consider the size of the estate and the impact on the estate of the costs order sought by the defendant”; rather, his Honour went further and erred in considering the amount of costs spent by the respondents when determining whether the appellant should receive her costs from the estate.

As to the fact that certain costs were previously reserved and not dealt with expressly by the primary judge in the costs judgment, the respondents submit that this simply means that they are to be paid and otherwise dealt with in the same way as the general costs of the proceedings (citing r 42.7 of UCPR).

Dealing first with the complaint as to the fact that his Honour did not separately address the question of the costs that had been reserved by Lindsay J, a matter to which reference was made in the appellant’s costs submissions at first instance, it is true that his Honour did not do so. However, the reservation of costs in relation to procedural matters during the course of preparation of matters for hearing means that those costs commonly fall into the bundle of costs to be dealt with at the conclusion of the hearing (and quite often those costs will in effect become costs in the cause). It does not necessarily bespeak error in the overall costs orders that there was no separate consideration in the costs judgment of those costs. Nor is it immediately apparent that in the scheme of things those costs should have been treated in any way differently from the balance of the costs of the hearing. The costs reserved appear to have related to the need for the preparation of a second expert report from Dr Lonie. That supplementary report was not extensive, comprising only some nine pages in length. While it would have been preferable for the primary judge to have addressed the appellant’s submissions as to those costs in the costs judgment, I am not persuaded that the fact that his Honour did not do so warrants the overall costs order being revisited.

I have already addressed the aspects of these grounds that raise again the complaint that capacity as to the 2019 Will was not in issue. Turning to the gravamen of the complaint (that the primary judge should not have departed from the ordinary position in relation to costs in probate cases), I consider that no error has here been shown.

In Shorter v Hodges at 709 (to which the primary judge referred at [35] of the costs judgment), Powell J noted that in probate litigation there are two recognised exceptions to the general principle in adversary litigation that costs follow the event and that those costs be taxed (or, in more modern costs assessment processes, assessed) on a party and party basis. Those exceptions are: first, that where the testator has, or those interested in residue have, been the cause of the litigation, the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate; the second being that, if the circumstances led reasonably to investigation of the document propounded, the costs may be left to be borne by those who respectively incurred them. The principles outlined by Powell J in Shorter v Hodges were repeated by Santow J in Redroff v Miegoch (Supreme Court (NSW), 22 April 1996 unreported) and in Perpetual Trustee Company Limited v Baker [1999] NSWCA 244 (Perpetual Trustee v Baker), with approval, by Giles JA and Brownie AJA. They derive from the principle stated in Re Buckton [1907] 2 Ch 406 at 414.

As the primary judge noted (costs judgment at [36]), in Perpetual Trustee v Baker their Honours noted that the two exceptions identified in Shorter v Hodges tended to overlap. Their Honours there made reference to what was said by Santow J in the Estate of Moyle: Moyle v Moyle (Supreme Court (NSW), 18 June 1998, unreported) to the effect that if a testator is by his mental frailty and other circumstances in a position where the circumstances reasonably call for an investigation of the validity of the will then “in one sense the testator, though usually with no sense of blameworthy fault, has by his or her conduct caused the litigation to occur”.

In the present case, the primary judge appears to have accepted that the deceased’s mental frailty was at least a cause of the litigation (noting at [49] of the costs judgment that the evidence did raise a question as to the deceased’s capacity). However, his Honour clearly weighed that against the other factors to which he referred (including the fact that the appellant had maintained until the last day of the hearing claims based on a testamentary contract and promissory estoppel; and his conclusion that even if the appellant had succeeded in her primary contention she would not have succeeded in propounding the 2019 Will).

I am not persuaded that any House v The King (1936) 55 CLR 499; [1936] HCA 40 error has here been established. The matters to which his Honour had regard were relevant considerations. The pursuit by the appellant of alternative claims meant that this was not simply a case where a doubt as to testamentary capacity gave rise to a reasonable challenge to the 2020 Will (in respect of which it could be said the deceased was a cause of the litigation); it was the pursuit by her of claims in respect of which, in the ordinary course, it might be expected that costs would follow the event (and which were abandoned by her at the end of the hearing). In not dissimilar situations, the pursuit by an executor of proceedings largely for his or her own personal benefit may disentitle the executor to costs orders in his or her favour (see Miller v Cameron (1936) 54 CLR 572 at 578-579 (Latham CJ); [1936] HCA 13; Warton v Yeo [2015] NSWCA 115 at [78]-[80] for example).

The fact that evidence as to capacity in relation to the 2019 Will was not directly led by the appellant (apparently based on a forensic decision as discussed earlier) raised the spectre of further costs being incurred by the estate if that issue fell to be determined. And it was not irrelevant in my opinion for his Honour to take into account the impact on the estate of a costs order of the kind that the appellant was seeking (i.e., that the parties’ costs come out of the estate on the indemnity basis). In all the circumstances I am not persuaded that his Honour erred in finding that the pursuit by the appellant of the litigation through to finality was not reasonable.

Grounds 18-21 are therefore not made good.

For the reasons set out above, I consider that the appeal should be dismissed. I see no reason why costs should not follow the event (and, in the case of the first respondent, that if there is any shortfall between the costs payable by the appellant and his solicitor/client costs, that shortfall should be paid out of the estate on the indemnity basis). Accordingly, I propose the following orders:

ADAMSON JA: I agree with Ward P.

BALL JA: I agree with Ward P.