Ryan v Dalton; Estate of Ryan

Francis James Ryan (“Frank”) died on 23 July 2014 at the age of 90. Without intending any disrespect, I shall refer to him and other family members by their given names.

The only issue in these proceedings is whether Frank had testamentary capacity so as to be a free and capable testator when he made a will on 24 January 2013 (the “2013 Will”). If he did not, there is no dispute between the parties that a will he made on 1 June 2011 (the “2011 Will) should be admitted to probate.

The plaintiffs are Frank’s three surviving adult children. They share in Frank’s estate equally under the 2011 Will. However, under the 2013 Will Frank divided his estate equally between the plaintiffs and his de facto partner Ms Deirdre Molloy (“Ms Molloy”). The plaintiffs were represented by Mr T Morahan of Counsel.

The defendant is a solicitor (“Ms Dalton”). Ms Dalton drew both the 2011 Will and the 2013 Will. She is the executor of the 2013 Will (but not a beneficiary). Ms Dalton was represented by Mr M Hadley of Counsel.

This is not a straightforward case. There is a great deal of reliable, contemporaneous evidence (including Frank’s treatment notes at the nursing home in which he lived) and uncontradicted retrospective medical evidence that suggest Frank lacked testamentary capacity in January 2013. On the other hand, Ms Dalton’s contemporaneous notes and her recollection of her attendances on Frank to take his instructions point in the opposite direction.

In looking at the totality of the evidence, the Court is not satisfied that Ms Dalton has satisfied the legal burden of demonstrating that the 2013 Will is the last will of a free and capable testator. That burden would be discharged by proof on the balance of probabilities, but allowing for the seriousness of the issue of the matter to be proven. Even taking into account the relative simplicity of the 2013 Will, the Court is not left with just a residual doubt. Rather the Court’s doubt is so substantial as to preclude a belief on the balance of probabilities that the 2013 Will is the last will of a free and capable testator. While the Court readily accepts that Ms Dalton was careful in taking her instructions, her evidence does not decisively outweigh the other evidence. This is because while it demonstrates that Frank was able to give her instructions, it does not show that the she took those instructions at the time the 2013 Will was executed in a way that would have dispelled the doubt created by all the other evidence about Frank’s mental state.

Probate of the 2011 Will is to be granted to the plaintiffs.

The plaintiffs and other family members were not challenged in cross-examination about their descriptions of Frank’s condition from time to time. Their evidence is also broadly consistent with the various contemporaneous documentary records of his condition. I accept their evidence.

Ms Molloy accepted in cross-examination that there was an arrangement or understanding between her and Frank (albeit never formally recorded in writing) that they would be financially independent and would not have recourse to each other’s estates. Her evidence was that “it was usually Frank that brought it up”. I accept the plaintiffs’ submission that she was trying to downplay her concerns about Frank’s condition from time to time. Insofar as she did so, I prefer the contemporaneous notes of others made about her expressions of concern. Significantly, she did not give any evidence of her recollection about Frank’s mental state at the time he gave instructions for and then executed the 2013 Will.

Ms Dalton was unshaken in cross-examination. No submission was put (rightly, in my view) that her evidence was a fabrication. I accept her evidence with one exception (as to which see paragraph [79] below).

Having regard to the matters set out in paragraphs [8] to [10] above, I find the facts to be as set out in paragraphs [12] to [59] below. I consider Associate Professor Wijeratne’s expert evidence in paragraphs [64] to [84] below.

Frank was born on 3 September 1923 in Picton.

Ms Molloy was born on 15 April 1939.

Frank married Patricia Corcoran, who died in 1978.

In 1980 Ms Molloy separated from her husband.

Ms Molloy first met Frank in about 1983 when she was volunteering for the Salvation Army Red Shield Appeal. Frank was at that time the coordinator of the Blayney Shire Red Shield Appeal.

In 1988 Ms Molloy and Frank commenced a relationship.

In 1990 Ms Molloy divorced her husband.

In February 1990 Frank moved into Ms Molloy’s house in Mandurama, New South Wales.

Frank had four children, one of whom died of cancer in 1990. The surviving children are the plaintiffs: Joseph (known as Joe) (now 67), Bernadette (now 66), and Jacinta (now 58).

In 1994, Frank retired from running his own bakery. One legacy of Frank’s working life was poor hearing. He wore hearing aids in both ears.

In 2009–2010, Joe noticed that some of Frank’s normal habits appeared to be changing. He appeared to be tired, sleepy and often fell asleep where he was for long periods of time.

In May 2010, Frank had a knee replacement at Dudley Hospital in Orange, New South Wales. His discharge summary of 4 June 2010 states:

On 27 July 2010, Ms Molloy took Frank to see a geriatrician, Dr Ireland. The doctor’s report of that date includes:

On 1 June 2011, Frank made the 2011 Will appointing Joe, Bernadette and Jacinta as executors and trustees and dividing his property between them in equal shares. There was a gift over to Jacinta’s son Max if she did not survive Frank. At the same time he also executed an advanced care directive and an enduring power of attorney. The enduring power of attorney was in favour of Ms Molloy. All of these documents were made in the presence of Ms Dalton.

On 24 June 2011, Frank underwent examination by an aged care assessment team which recommended him for low level residential care. The assessment states:

In July and August 2011, Frank took his annual holiday with his children. First he visited Joe in Sydney and then flew up to Brunswick Heads to visit Bernadette and Jacinta (who lived there together), then flew back to Joe in Sydney before returning to Mandurama. During the visit to Brunswick Heads, Jacinta records that Frank told her and Bernadette “I want to talk to you girls about my will arrangements. I have appointed all three of you as my executors and the estate will be divided equally between the three of you. I have made provision for Max. Just in case something happens to you, Jacinta, Max will finish his education.”

Bernadette says that during that 2011 visit, Frank said to her “I’ve left everything to the three of you equally [referring to his children]. I didn’t include Deidre as we agreed to keep our finances and property separate. Deidre has a lot more than me and we agreed not to leave anything to each other.”

Frank’s grand-daughter Yvette Kellett (who was not required for cross-examination) also deposed that in July 2011 Frank told her, in relation to his 2011 Will, that he was not providing for Ms Molloy because he had already provided for her.

Joe says that Frank told him in or about July or August 2011, in relation to the 2011 Will: “I want the three of you (meaning my sisters and myself) to be executors and to share everything equally. I have already looked after my friend Deirdre.” Joe also says Frank said “Deirdre and I have had an agreement for years to be completely separate financially and neither of us will make a claim against the other’s assets”.

In relation to the visit with Joe in July to August 2011, Rosslyn (Joe’s wife and not required for cross-examination) also gave evidence that Frank reiterated the agreement that he and Deidre had maintained for years to be completely separate financially, and that neither of them would make a claim against each other’s assets. She recalled Frank saying words to the effect “I have already looked after my friend, Deidre Molloy”.

As Ms Molloy ultimately acknowledged in cross-examination, there was an agreement or understanding between Frank and her to the effect of that referred to in paragraphs [28], [30] and [31] above.

On 8 September 2011, Frank was admitted to Lee Hostel, Blayney.

On 20 October 2011, Frank underwent a cerebral MRI which was reported as showing small vessel cerebrovascular disease and moderate cerebral atrophy.

In that same month Frank completed a claim form in relation to his disability pension. This included a diagnosis by his GP, Dr Hazelton, dated 29 October 2011 that Frank had “micro vascular ischaemic cerebral disease with significant memory loss” and “visual impairment”.

From around mid-2012 Joe says that Frank, in the course of telephone calls, would ask which son he was speaking to. Joe’s brother Francis had died in 1990 and had been dead for about 25 years. From this time on Joe says that Frank often called him Francis.

On 24 August 2012, Frank was reported in his hostel notes as wearing his pyjamas over his daytime clothes. Thereafter he was regularly described as confused, for instance believing that any visitor was for him, and that at times he was overfamiliar with some female residents.

Joe says that in about October 2012 he and his wife drove up to Lee Hostel to visit Frank. On that occasion Joe says that the care manager had said to him words to the effect “Frank’s dementia had progressed and is significantly impacting him”. During that visit Joe reported that Frank’s behaviour seemed unusual at times, demonstrating agitation and aggression.

In relation to the October 2012 visit, Rosslyn confirms Joe’s evidence that the manager at Lee Hostel requested to speak privately with them regarding Frank and said words to the effect that his dementia had progressed and was significantly impacting on him.

Frank’s notes at Lee Hostel for 7 December 2012 record “Frank left hostel for holiday with Deirdre and son at 10.30am ...”. The evidence of both Joe and Rosslyn was that, while he had discussed with them changes to the 2011 Will, during the 2012 holiday with them he did not mention that he was thinking of changing the 2011 Will.

On 14 December 2012, Joe used a wheelchair to put Frank on a plane to stay with Bernadette at Brunswick Heads over Christmas. He stayed until Bernadette accompanied him back to Lee Hostel in Blayney at the start of January 2013. Bernadette’s observations of Frank during that visit were that “He was constantly struggling and suffering with serious dementia related problems. He had very serious memory and cognitive problems and much more”. Joe says that when he called Frank during Frank’s stay at Brunswick Heads, Frank was confused and didn’t seem to know who he was, who Joe was or where he (Frank) was.

In relation to Frank’s visit to Brunswick Heads in late 2012, Bernadette’s partner Greg Wilding also gave evidence as to how disoriented Frank was during his visit. Mr Wilding was not required for cross-examination. His evidence was that Frank was “in a state of almost permanent disorientation, not knowing where he was or who was around him”.

Jacinta’s evidence about the Brunswick Heads visit was that Frank was completely reliant and dependent on her and her sister. He needed care and assistance for all of his needs, such as toileting, washing, dressing, moving, teeth and hearing aids. He only spoke in short sentences and appeared quite confused. On one occasion Jacinta found him holding the remote control for the air conditioner to his ear, yelling into it as if it was a mobile phone saying words to the effect of “Speak up will you. These bloody hearing aids (adjusting his aids with his other hand). Hang on, speak up, who do you want?”. During the visit Jacinta says that Frank was confused, disoriented and had trouble staying awake. He was not able to recognise her sister or herself and was not capable of holding a conversation.

While Frank was with them at Brunswick Heads in December 2012, Bernadette and Jacinta arranged for Ms Sandra Gregory, an aged care level 3 trainer with a speciality in dementia and palliative care to come and help them care for Frank. Ms Gregory was not required for cross-examination. Her evidence was that Frank “required constant care and attention … couldn’t stand without assistance and even with a walking frame required assistance to move about … could not be left alone at any time he was awake. He required constant care.”

Frank’s Lee Hostel notes record him returning the Lee Hostel on 2 January 2013 at 4.00pm. Those notes record various matters about Frank in the following days which are as follows. To give a sense of how those notes fit against the chronology of Frank making his 2013 Will, I have interpolated events in relation to the 2013 Will in square brackets:

The evidence also included Frank’s Lee Hostel behaviour chart for various periods. While there was no chart for 24 January 2013 his chart for 28 January 2013 (and on earlier dates) lists him as “Verbally disruptive, Generally noisy, Repetitive Speech, Disoriented, Confused, Pacing, Wanders/absconds, Attention seeking, Paranoid, Antisocial, Manipulative, Restlessness, Bothering residents, Anxious, Depressed, Refusing care, Abnormal sleep pattern, Risky, Chronic complainer, Interferes”.

Ms Molloy telephoned Ms Dalton on 14 January 2013. Ms Dalton’s evidence is set out in paragraph [61] below. Ms Dalton’s file note of that conversation made at 10.11am states:

On 17 January 2013, Ms Dalton met Frank to take his instructions for the 2013 Will. Her affidavit evidence of that occasion is set out in paragraph [61] below.

On 17 January 2013, Ms Dalton sent Frank’s draft will under cover of a letter addressed to him at Ms Molloy’s property at Mandurama (notwithstanding that she knew Frank was living at Lee Hostel). The letter stated:

On 21 January 2013, Ms Molloy telephoned Ms Dalton. Ms Dalton’s file note of that conversation at 12.23pm records:

On 24 January 2013, Ms Dalton attended Frank at Lee Hostel, where he executed the 2013 Will. Her affidavit evidence about this occasion is set out in paragraph [61] below. Her file note made at 2.56pm that day records:

By the 2013 Will Frank appointed Ms Molloy as his executrix and trustee, left certain personalty to Ms Molloy and otherwise divided his property equally among Joe, Bernadette, Jacinta and Ms Molloy.

In or about February or March 2013, Joe says that Ms Molloy rang him and said words to the effect that “Lee Hostel are finding it difficult to handle Dad’s continued aggression and at risk behaviour requesting that he be appointed a local GP in Blayney and that he will need to be moved in the near future to a facility that could accommodate his advancing dementia and care needs”.

In a letter of 25 July 2013, Dr Ruth Arnold noted that Frank was developing increasing problems with confusion, weird dreams and occasional aggression to nursing staff at Lee Hostel.

On 13 August 2013, a PAS cognitive impairment scale test was administered to Frank at Lee Hostel. A raw score of 10 and prorated score of 10 were obtained. According to Dr Wijeratne, the latter is equivalent to a percentile rank between 95 and 100 and the higher the percentile rank, the more impaired the person is.

In September 2013, Yvette deposed that she telephoned Frank at the hostel to wish him a happy birthday. However Frank was very confused and kept asking who it was that was calling him.

On 9 September 2013, Frank underwent a CT scan, which was reported as demonstrating severe generalised cerebral atrophy with marked enlargement of the ventricles and chronic small vessel cerebrovascular disease.

On 12 September 2013 Frank had an episode of wandering. He was moved to Bilyara Hostel, Cowra, shortly after this episode.

Frank died on 23 July 2014 at the age of 90. The cause of his death is recorded as bilateral pneumonia, advanced dementia and old age.

Ms Dalton’s evidence was that Frank and Ms Molloy had been clients of hers for many years and she had come to know them both well over the intervening period. Acting on Frank’s instructions, she had drafted his 2011 Will.

Because of its importance to the outcome of these proceedings, it is necessary to set out her affidavit evidence in detail:

Ms Dalton’s handwritten file note to which she refers in paragraph 9 of her affidavit is reproduced as Schedule 1 to these reasons. It is a critical feature of her case because it records Frank as having been able to give Ms Dalton quite explicit instructions, in particular about his assets.

Ms Dalton did not depart from her recollection in cross-examination. However, she did give the following additional evidence:

A retrospective diagnosis of Frank’s condition was tendered by the plaintiffs from Dr Chanaka Wijeratne, a consultant psychiatrist and Associate Professor (adjunct) in the School of Medicine Sydney at University of Notre Dame Australia.

No expert evidence was tendered on behalf of Ms Dalton.

Dr Wijeratne’s first report was dated 25 August 2016. After reviewing the affidavit evidence filed in these proceedings (with one important exception — see paragraph [69] below) and other records, Dr Wijeratne’s diagnosis of Frank included:

After reviewing a sequence of letters written by Frank, Dr Wijeratne concluded:

Dr Wijeratne’s report then concludes:

The important exception referred to in paragraph [66] above is that — inexplicably — the material that was provided to did not include Ms Dalton’s affidavit of 4 March 2016. Having been provided with that affidavit, Dr Wijeratne produced a further report dated 10 March 2017 setting out his views in the light of Ms Dalton’s affidavit. Dr Wijeratne provided this further opinion:

Dr Wijeratne’s evidence in cross-examination reiterated his concern about Frank’s failure to have offered any explanation for changing his will to make Ms Molloy a beneficiary. He accepted it was not unreasonable to have appointed Ms Dalton as executor and that it was not inherently irrational to have made Ms Molloy a beneficiary. His concern was the lack of apparent explanation for the change from his previous will making — there being no record of Frank having offered an explanation for the change or Ms Dalton having sought such an explanation. However he indicated that this matter was a “significant building block” in his reasoning, but not the only reason.

Dr Wijeratne went on to explain that while the material indicated Frank had increasing cognitive impairment, what was important was Frank’s executive function. The doctor defined this as “a person’s ability to think abstractly, to weigh pros and cons of particular arguments, and to come to a judgement”. He continued that MMSE scores were not good indicators of executive function and adhered to his analysis of four letters written by Frank over a period of years up to December 2012 as demonstrating decline in his executive function. Dr Wijeratne was not cross-examined on this aspect of his evidence.

The strongest challenge in cross-examination to Dr Wijeratne’s conclusions was based on Frank’s apparent ability to give precise instructions about his assets as recorded in Ms Dalton’s file note. Reference was also made to the fact that this was a simple estate and the changes he made were simple ones. The essential proposition advanced in cross-examination was that if Frank had that ability, then it supported the conclusion that Frank had testamentary capacity at least sufficient for the straightforward changes he had made in the 2013 Will. Dr Wijeratne disagreed, saying that the question had to be considered against all the evidence and that, even if it was true that Frank had been able to recite all his assets, it was not conclusive of the issue.

Three things emerged from this part of the evidence. First, the doctor made it clear he was not casting doubt on Ms Dalton’s honesty. However, he said there could be other explanations including that someone had given that information to Frank immediately before the meeting. In the absence of evidence of any other such explanation, I do not propose to take that possibility into account. However, Dr Wijeratne did say “what I am casting doubt on is [Frank’s] ability to recall in such detail his estate which is in my experience quite unusual given, as I said, his underlying degree of impairment.”

Second, Dr Wijeratne referred to the two hostel notes about Frank’s confusion on the day the 2013 Will was executed (see paragraph [45] above). The doctor said “As I said, executive function is the higher order thinking that allows us to make this, as you know, more complex, more sophisticated judgments, and certainly when someone is confused we would really expect their executive function to be affected as well”. He was not further cross-examined in relation to this proposition.

Third, this part of the cross-examination culminated in this exchange:

In assessing Dr Wijeratne’s evidence — in particular his second report and his cross-examination — I was mindful that, through no fault of his own, he had been placed in what might be thought to have been a professionally embarrassing position by not having been provided with Ms Dalton’s affidavit of 4 March 2016 after having reached his opinion on all the other material. I was concerned to be satisfied that, insofar as he maintained his earlier opinion, he was doing so on cogent grounds which indicated he had fairly considered the new material without any predisposition towards maintaining his earlier views. I am satisfied he did fairly and properly consider Ms Dalton’s affidavit of 4 March 2016. So much is demonstrated by the last three paragraphs of his second report (quoted in paragraph [69] above) which include specific reference to the inconsistency created by Frank’s listing of his assets.

I do not think Dr Wijeratne’s failure to make the concession sought by Mr Hadley in the passage quoted in paragraph [75] above suggests a dogmatic or advocate’s approach that would justify discounting his expert evidence. Dr Wijeratne was grappling with the same tension in the evidence which confronts the Court (see paragraph [5] above). His response to the inconsistency was to refer to the evidence as a whole. Similarly, the Court’s ultimate finding will not be made by reference solely to Dr Wijeratne’s evidence. For the purposes of the Court’s task, I find that an undoubted expert in the field has concluded by a rationally defensible and persuasive analysis of the evidence that it is “very unlikely that [Frank] retained testamentary capacity on 24th January 2013”.

In reaching this conclusion about Dr Wijeratne’s evidence, I have not overlooked Ms Dalton’s evidence that in the interview on 17 January 2013 Frank volunteered a reason for the change to his will — that he felt bad about having made no provision for Ms Molloy. However, that evidence only emerged in Ms Dalton’s cross-examination and after Dr Wijeratne had given his evidence (having been interposed), so it could not be put to him. No application was made to recall him. In those circumstances I do not think his report could be fairly criticised in reliance on Ms Dalton’s oral evidence.

Irrespective of whether the criticism was able to be made, and with no disrespect to Ms Dalton, I accept the plaintiffs’ submission that I should not be satisfied that Ms Dalton’s recollection on this point is reliable. The evidence emerged only in cross-examination and after a day of evidence in her presence (as she was perfectly entitled to be) where the issue of lack of explanation for the change had been extensively canvassed. It was not in her affidavit evidence and, most importantly, not in her file note of 17 January 2013. I formed the view that she was careful in her note taking and it is likely to be something she would have recorded if it had been said. In any event, Dr Wijeratne had made it clear that the absence of an explanation was only one of the reasons for the view he had reached and I do not think it is so critical that his ultimate conclusion cannot be relied upon without it.

Before leaving Dr Wijeratne’s evidence it is convenient to deal with the other specific submissions that Mr Hadley made about it.

First, he submitted that Dr Wijeratne erred to elevate the “pattern of will making” and the lack of explanation for the change to the importance which he did in his opinions. For the reasons which I have given in the preceding paragraphs, I do not accept that is a persuasive criticism. While it was undoubtedly an element in Dr Wijeratne’s reasoning, it was only one part of it and did not have determinative significance. What did have determinative significance for Dr Wijeratne was his analysis of the decline in Frank’s executive capacity, an analysis which was not challenged in cross-examination or submissions.

The second submission was that the doctor had “latched upon the testator’s background health problems such that, in his mind, they displace other evidence of capacity…using a combination of medical evidence and anecdotes from the plaintiffs, Dr Wijeratne has formed an opinion of the testator’s degree of dementia, visual loss and hearing loss”.

The “anecdotes” from the plaintiffs were said to be of “minimal assistance” given their source was interested parties. For the reasons given in paragraph [8] above I do not accept that factual evidence should be disregarded as unreliable.

Mr Hadley’s argument in relation to the medical evidence was more nuanced, as it had to be. He submitted that “we concede that dementia, hearing loss and vision loss are recorded in the medical evidence and he’s had regard to that, quite properly. The evidence is before you, but we say that Dr Wijeratne has gone too far because he gave such prominence to those matters that he failed to make a realistic appraisal of the solicitor’s evidence of her meetings with the testator and the instructions she got from him and the execution of the will”. For the reasons given in paragraph [76] above, I do not accept that submission. Dr Wijeratne did take it into account, but for reasons which I regard as cogent he maintained his opinion based on a consideration of all the evidence before him.

A letter obtained by the plaintiffs from Dr Ken Hazelton, Frank’s general practitioner, dated 26 April 2015 was tendered in evidence. Dr Hazelton was not required for cross-examination. The letter stated (emphasis added):

I have no doubt that Dr Hazelton was doing his best in giving the information set out in that letter. However, given the matters I have emphasised in that letter, I do not give his views on Frank’s capacity any weight.

There was no dispute between the parties about the applicable legal principles. I summarised them in my judgment in Phillips v Phillips [2017] NSWSC 280, 129–134

The parties agreed that the 2013 Will was rational on its face and had been duly executed. In accordance with the principles set out above, a rebuttable presumption arose from those matters that Frank had testamentary capacity.

Mr Hadley did not go so far as to concede that on the totality of the evidence that there was a doubt about Frank’s capacity at the time he gave instructions for, and then executed, the 2013 Will. However, he did not advocate strenuously against the proposition. It was understandable that he should have been somewhat muted on the question because it is clear that, viewed as a whole, the evidence does give rise to a doubt that the 2013 Will was the last will of a free and capable testator. That evidence particularly includes the Lee Hostel notes for January 2013 (see paragraph [45] above), Ms Molloy’s recorded expressions of concern about Frank’s mental state and Frank’s family’s evidence about his declining condition in late 2012. In reaching this conclusion I have also taken into account Ms Dalton’s evidence of her attendances on Frank, but at least at this point of the analysis that evidence is insufficient to dispel the doubt created by the balance of the evidence.

By reason of the conclusion expressed in the preceding paragraph, the onus is on Ms Dalton as proponent of the 2013 Will to satisfy the Court on the balance of probabilities, but taking into account the seriousness of the matters alleged, that it is the last will of a free and capable testator.

The plaintiffs emphasised the family evidence, the contemporaneous medical notes and Dr Wijeratne’s report in support of the proposition that by the time Frank made the 2013 Will, he was suffering from what Mr Morahan described as a “severe disability”. It was submitted that there was clearly a doubt raised as to whether Frank had capacity at the time he made the 2013 Will and that, therefore, the onus of proof shifted to Ms Dalton.

It was submitted that Ms Dalton had failed to discharge her onus by reason of at least all of the evidence which supported the finding that there was a doubt, in addition to the following matters:

It was submitted for Ms Dalton that there was insufficient evidence for the Court to conclude that there was doubt about Frank’s capacity. However, if the Court came to the conclusion that there was sufficient doubt, Ms Dalton had discharged her onus by reason of the following matters:

This is not a straightforward case. The parties, Dr Wijeratne and now the Court are all grappling with the same conundrum: the stark contrast between the significant body of family, medical and hostel evidence that raises significant doubt about whether Frank had testamentary capacity on 24 January 2013 and Ms Dalton’s file note of 17 January 2013 and her other evidence which supports the conclusion that Frank did have capacity. In considering the question I have taken careful account of the legal principles set out in paragraph [87] above. There was no real dispute (and Dr Wijeratne’s report agreed) that Frank understood the nature and effect of making a will, he knew the nature and extent of his assets and was able to comprehend and appreciate the claims to which he ought to give effect. The real question was whether he was affected by a mental disorder which so influenced his mind in relation to the disposal of his assets that the Court could not be satisfied, on the balance of probabilities having regard to the seriousness of the matter to be proved, that the 2013 Will was the last will of a free and capable testator.

I have considered the evidence as a whole. I have given considerable weight to both the simplicity of the scheme of the 2013 Will and the uncomplicated nature of Frank’s assets. I accept and also give considerable weight to Ms Dalton’s notes and account of what happened on both 17 and 24 January 2013. I have reminded myself that the Court must be satisfied that Frank had testamentary capacity on the balance of probabilities, but bearing in mind the seriousness of the matters to be proven. I certainly have a residual doubt that Frank had capacity on 24 January 2013.

However, after anxious consideration, I have concluded it is more than merely a residual doubt. To adopt the language of the High Court in Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 453, the doubt which the Court has on the question is “substantial enough to preclude a belief that the [2013 Will] is the will of a [testator] who possessed sound mind, memory and understanding at the time of its execution.”

Without minimising the evidentiary weight to be given to Frank’s ability to give precise instructions about his assets on 17 January 2013, the primary focus of the Court’s attention needs to be on whether Frank had testamentary capacity on 24 January 2013. That question must be informed by all of the evidence, including what happened on 17 January 2013.

Bearing the above in mind, the reasons for that substantial doubt are:

Ms Dalton has failed to satisfy the Court to the requisite standard that the 2013 Will is Frank’s last will as a free and capable testator. Probate in solemn form of the 2011 Will is to be granted to the plaintiffs.

The Court will fix a further mention date in order to give the parties an opportunity to bring in agreed short minutes giving effect to these reasons and, if they can be agreed, as to costs. Any disputes will be resolved on that next occasion.

The demographic reality of an aging population means that the likelihood of challenges to wills on the ground of testamentary capacity is increasing. Two recent government reports on elder abuse have made recommendations in relation to the role of lawyers and legal education. Those matters, when also considered in the light of recent decisions of this Court on the question of testamentary capacity, suggest that it is appropriate to conclude this judgment with some observations divorced from the personalities and facts of this particular case.

The New South Wales Legislative Council’s Report on Elder Abuse in New South Wales (24 June 2016) included this recommendation:

More recently, the final report of the Australian Law Reform Commission “Elder Abuse – a National Legal Response” (ALRC Report 131, May 2017), included this recommendation:

The Court notes that the NSW Law Society’s 2009 publication was reissued in 2016 as When a Client’s Mental Capacity is in Doubt: A Practical Guide for Solicitors.

Assistance in relation to making a will remains one of the most likely reasons for Australians to seek the assistance of a solicitor. The demographic trend to which I have referred suggests that a good understanding of the issues surrounding mental capacity is an essential skill for any solicitor who holds himself or herself out as competent to provide legal services to natural persons. It is to be hoped that the recommendations of the two recent reports, will be acted upon as quickly as possible.

Questions of testamentary capacity are necessarily fact sensitive. No rule or procedure will cover every case to avoid the possibility of litigation. Nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death. Bearing that in mind, and without wishing in any way to derogate from, for example, the desirability of all solicitors being familiar with the guidelines, the recent experience of the Court suggests that proposing some basic rules of thumb (which, as such, are necessarily arbitrary) may be of assistance.

It seems to me that the following is at least a starting point for dealing with this increasingly prevalent issue:

I emphasise that the foregoing is offered only as suggested basic precautions which may identify problems which need to be addressed. In many cases which do come before the Court the evidence of the solicitor will be critical. For that reason, it is essential that solicitors make full, contemporaneous file notes of their attendances on the client and any other persons and retain those file notes indefinitely. Estate of Ryan - Schedule A (88.0 KB, pdf)