Knox v Peacock

1. [1]

   Eva Marie Easton died at the age of 89 on 11 September 2021. At the time of her death and for several years prior, she had been in full time residential care at Maranatha Lodge (Maranatha), a nursing home in Batehaven, NSW.

2. [2]

   The plaintiff, Mr Knox, is a solicitor and a partner of Kennedy & Cooke in Batemans Bay. On 22 September 2020 he consulted with Mrs Easton at Maranatha and took instructions from her to draft a will. That will was later executed by Mrs Easton in the presence of Mr Knox and another witness on 19 November 2020, also at Maranatha (the 2020 Will). The single beneficiary under the 2020 Will is the Sydney Opera House Trust. By his statement of claim, Mr Knox seeks orders that probate of Mrs Easton’s 2020 Will be granted to him as one of executors named in the will. The Sydney Opera House Trust, the body corporate created pursuant to the Sydney Opera House Trust Act 1961 (NSW), has been joined as second cross-defendant but has entered only a submitting appearance.

3. [3]

   The first defendant/cross-claimant, Mrs Isabelle Peacock, was a friend of Mrs Easton. She disputes that Mrs Easton had capacity to make a will on 19 November 2020. She relies on the evidence of Dr Lonie, a consultant clinical neuropsychologist who was jointly appointed by the parties to provide an expert report. Mrs Peacock instead propounds a will made by Mrs Easton on 29 May 2019 (the 2019 Will). On that day, Mrs Peacock took Mrs Easton to see a solicitor in Batemans Bay in order to execute the 2019 Will. Under that will, Mrs Peacock was the executor and sole beneficiary. By her defence and amended first cross claim, she seeks orders that probate of the 2019 Will be granted to her.

4. [4]

   Mrs Peacock also sought relief on two alternative bases in her cross claim. As originally pleaded, in the event that the 2020 Will is admitted to probate, she sought damages for breach of an oral contract which, she said, she made with Mrs Easton in May 2019. Under that contract, Mrs Peacock claimed that Mrs Easton agreed to make her the sole beneficiary under her will in exchange for Mrs Peacock agreeing to perform various tasks for her and for providing ongoing care and emotional support. In the further alternative, Mrs Peacock brought a case based on estoppel.

5. [5]

   However, on the final day of the hearing counsel for Mrs Peacock informed the Court that these alternative claims were no longer pressed.

6. [6]

   If they are wrong about Mrs Easton’s capacity to make the 2020 Will, the plaintiff and second defendant take no position as to whether the 2019 Will should be admitted to probate. They have no interest in the balance of the proceedings. Nonetheless, the evidence as to Mrs Easton’s capacity to make the 2020 Will gives rise to an issue as to whether she had capacity to make the 2019 Will. In those circumstances, if I find that Mrs Easton did not have capacity to make the later will, it will be necessary to consider whether she had capacity to make the earlier will even in the absence of a contradictor on this point.

7. [7]

   The principal issues in dispute are therefore as follows:

   1. (1)

      Did Mrs Easton have capacity to make the 2020 Will?

   2. (2)

      If not, did Mrs Easton have capacity to make the 2019 Will?

8. [8]

   If the answer to the second of these questions is “no”, difficulties arise. That is because there was an earlier will dated 19 December 2017 under which Hildegard and Heinz Scheffler were executors and primary beneficiaries. The Schefflers were friends of Mrs Easton and performed various services to assist her prior to Mrs Peacock taking over in May 2019. That will was also made while Mrs Easton was in full time residential care at Maranatha. However, no party to these proceedings propounds that will. I was informed by counsel for Mrs Peacock that the Schefflers were put on notice of these proceedings but have chosen not to participate.

Applicable principles

1. [9]

   There was no dispute as to the general principles to be applied in determining whether Mrs Easton had capacity to make either the 2020 Will or the 2019 Will.

2. [10]

   In Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn LJ said:

3. [11]

   See also Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 per Basten JA at [5]-[6]; and Lim v Lim [2023] NSWCA 84 per Kirk JA at [7]-[9].

4. [12]

   It is not necessary to demonstrate that the Testator knew each asset and its value, particularly where the testator is being assisted in the management of their affairs by others: Kerr v Badran; Estate of Badran [2004] NSWSC 735 at [49]; see also King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]–[41].

5. [13]

   Although the test for capacity applies generally, the evidence which is required in any particular case depends on the particular will: Lim v Lim at [9]. It may be easier to demonstrate that a testator had capacity where their affairs were straightforward and the will is simple: Croft v Sanders [2019] NSWCA 303 at [126] per White JA.

6. [14]

   In the absence of any real issue being raised about capacity, the testator’s capacity will be presumed. However, as Basten JA explained in Carr v Homersham at [47], once an issue is raised the Court must resolve it in the ordinary way. That is, the issue must be resolved:

7. [15]

   The reference to what Gleeson CJ said about the gravity of a finding of incapacity was to his Honour’s reasons in Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284. I am particularly mindful of those observations.

Facts relevant to the issues in dispute

1. [16]

   There was no real dispute as to matters that occurred prior to Mrs Easton taking up residence in Maranatha in late 2017. Evidence about those matters was given by Mrs Peacock, whose evidence I have generally accepted as a basis for the following account. I will deal with other evidence given by Mrs Peacock about more contentious matters in due course.

2. [17]

   Mrs Easton was born in Munich, Germany, on 12 April 1932. In the mid 1970’s she met George Campbell Easton, an Australian man who was stationed in Europe on military service. They married in a civil ceremony at the Australian Embassy in Brussels, Belgium, on 22 November 1976.

3. [18]

   Mr and Mrs Easton moved to Australia in 1977. There was very little evidence as to the kind of life they lived. Apparently, Mrs Easton had worked in banks when she lived in Germany. On moving to Australia, they settled in Canberra and then retired to Malua Bay on the south coast of NSW.

4. [19]

   Mr and Mrs Easton’s marriage ended in divorce on 23 October 1989. They sold their home in Malua Bay and Mrs Easton used her share of the proceeds to acquire a home at Maloney’s Beach, just north of Batemans Bay.

5. [20]

   Mrs Easton had no children and almost no friends. Her ex-husband died many years ago. Mrs Peacock, who knew her well, says that Mrs Easton did not believe herself to have any living relatives.

6. [21]

   Mrs Peacock met Mrs Easton in about 2004 when Mrs Easton began visiting her in her professional capacity, as Mrs Peacock is an aromatherapist. Mrs Easton had a regular monthly massage appointment. She would arrive by bus and after her appointment Mrs Peacock would give her a lift to town so that Mrs Easton could do her shopping. Mrs Easton did not own a car.

7. [22]

   By about 2009, the two had developed a good friendship. They would lunch together, seek advice from one another and discuss life. Mrs Peacock would drive Mrs Easton to places she needed to be such as dental and medical appointments.

8. [23]

   They both had illnesses over the years and were supportive of one another in times of need.

9. [24]

   Mrs Easton invited Mrs Peacock into her home in 2014. Mrs Peacock would visit her on Sundays. She would bring her oils and massage Mrs Easton’s feet. Mrs Easton spent Christmas lunch with Mrs Peacock that year. According to Mrs Peacock, Mrs Easton described her as both friend and family.

10. [25]

    In 2015, Mrs Peacock assisted Mrs Easton with a council cleanup.

11. [26]

    Aside from Mrs Peacock, the only other friends in Mrs Easton’s life were a German couple, Hildegard and Heinz Scheffler, whom she knew through her church. The Schefflers lived very close to Mrs Easton. Mrs Peacock only ever met them a couple of times but she is not sure when.

12. [27]

    Mrs Scheffler did all of Mrs Easton’s laundry, ironing and gardening. She would take Mrs Easton to the bank to withdraw cash, usually about $3,000. From that cash, she would give amounts to Mrs Scheffler to pay bills at the post office. Mrs Easton would pay the Schefflers to do all of these things.

13. [28]

    Mrs Easton was diagnosed with endometrial cancer in 2016, for which she received treatment and support until her death.

14. [29]

    In early 2017, Mrs Peacock and Mrs Easton had a discussion about the latter’s care. She was by this time unable to catch a bus, shop, pay bills or do housework without assistance. Mrs Peacock continued to assist her with many of these tasks and would call her frequently. She would sometimes cook for her.

15. [30]

    In February 2017, Mrs Peacock made inquiries about an in-home ‘My Aged Care’ package for Mrs Easton. She organised for a representative of My Aged Care to conduct an assessment at Mrs Easton’s home, for which she was present. A package was approved in April 2017, but Mrs Easton did not take it up. At about that time, Mrs Easton started to talk about perhaps going into an aged care facility, although she said she did not wish to sell her home. Mrs Peacock spent time investigating possibilities for residential care and discussing them with Mrs Easton, but Mrs Easton did not find any of them suitable. As will become apparent, Mrs Easton was a highly anxious person who found it difficult to make choices. She was also highly discriminating.

16. [31]

    On 16 September 2017, Mrs Easton had a bad fall at home, resulting in a fractured hip, elbow and wrist. She was found by Mrs Peacock, who called an ambulance. Mrs Easton was taken to hospital in Canberra for surgery, returning to Batemans Bay hospital in October. She was placed into an Opal Healthcare facility on 19 October for respite care but did not like it. She moved to Maranatha on 2 November 2017.

17. [32]

    Mrs Easton remained in residence at Maranatha until her death on 11 September 2021.

18. [33]

    Maranatha Lodge is located relatively close to Mrs Peacock’s home. She was therefore able to visit Mrs Easton fairly frequently, and she did so. She would spend time visiting her at Maranatha, sometimes for hours at a time, and would bring her own family guests to visit her. She would also take Mrs Easton to visit Mrs Easton’s home at Maloney’s Beach to sort clothes and so on.

19. [34]

    On 19 December 2017, Mrs Easton made the will I have already described as the 2017 Will. There was almost no evidence as to the circumstances in which that will was made. The solicitor who drafted the will was Elizabeth Fleming of Moruya. The executors under the 2017 Will were the Schefflers. After paying the usual testamentary expenses, the residue was to go first to the Schefflers but, should they predecease Mrs Easton, to Mrs Peacock.

20. [35]

    Mrs Fleming’s invoice shows that, in addition to the 2017 Will, she also prepared an enduring power of attorney and an appointment of enduring guardian which Mrs Easton also executed. These were apparently in favour of Mrs Scheffler. The invoice was sent to Mrs Easton care of Mrs Scheffler.

21. [36]

    Throughout 2018 and whilst in Maranatha, Mrs Easton continued to rely on the Schefflers to do many of the things they had been doing previously, such as helping her to visit the bank, pay bills and attend appointments. Mr Scheffler would do gardening maintenance at Mrs Easton’s home. I infer that banking and financial matters were completed pursuant to the power of attorney. I also infer that Mrs Scheffler saw to the payment of accounts rendered by Maranatha during this time also.

22. [37]

    In January 2019, the Schefflers told Mrs Easton that they had sold their house and decided to move to Queensland. This made Mrs Easton extremely angry and upset. The fact that Mrs Easton was so upset and angry is borne out by Mrs Peacock’s evidence and also by contemporaneous clinical notes kept by the staff of Maranatha.

23. [38]

    It is at this point relevant to note that at the time of her first admission to Maranatha, Mrs Easton had been identified as suffering from fairly significant depression and anxiety. The staff seem at all times to have been alert to her mental wellbeing and her moods. They recognised that she had only limited ability to control her moods and that she was prone to being depressed and anxious. Clinical notes kept by the staff of Maranatha and by visiting therapists who saw Mrs Easton abound with references to her anxiety and moodiness. The fact that she was anxious and depressive was also well recognised by her GP, Dr Langley, who had treated her for years and who continued to care for her on a regular basis when she moved to Maranatha.

24. [39]

    On 2 April 2019, Mrs Scheffler dropped off all the paperwork she had in relation to Mrs Easton to her at Maranatha. That day, Mrs Easton asked Mrs Peacock to “take over all my financial affairs.” She again said how angry she was with the Schefflers. She asked Mrs Peacock to take her to a solicitor “so I can appoint you to be my enduring power of attorney and guardian and to give you access to my bank accounts so that you can pay all of my accounts and manage my finances.”

25. [40]

    Mrs Easton executed an enduring power of attorney in favour of Mrs Peacock and appointed her as enduring guardian on 23 April 2019. There was almost no evidence as to the circumstances in which this occurred, save that the documents were prepared and witnessed by a different solicitor, Christine Park of BHM Lawyers, Batemans Bay.

26. [41]

    In May 2019, Mrs Easton asked Mrs Peacock to take her back to see Ms Park. According to an affidavit sworn by Mrs Peacock, Mrs Easton said:

27. [42]

    However, Mrs Peacock accepted that she now has no particular recall of the words used by Mrs Easton in this conversation. Doing her best to recall it in the witness box, she said:

28. [43]

    In these circumstances, I find that the gist of what Mrs Easton said to Mrs Peacock was as described in the account given by Mrs Peacock in the witness box.

29. [44]

    Mrs Peacock took Mrs Easton from Maranatha to see Mrs Park at her office on 29 May 2019. Mrs Peacock waited while Mrs Easton consulted with the solicitor, at which time she executed the 2019 Will.

30. [45]

    There is an inference to be drawn that Mrs Park had taken instructions to prepare the 2019 Will prior to 29 May. The mostly likely time for this to have occurred would have been when she saw Mrs Easton to execute the power of attorney and appointment of enduring guardian in April. However, there is no direct evidence at all as to when and in what circumstances Ms Park took instructions from Mrs Easton to prepare the will.

31. [46]

    According to Mrs Peacock’s affidavit, on the car trip back to Maranatha Mrs Easton said:

32. [47]

    Mrs Peacock replied:

33. [48]

    Again, Mrs Peacock accepted that she had no particular recall of the words actually used and that she also had no particular recall at the time of preparing her affidavit. Doing her best to recall this discussion in the witness box, she said:

34. [49]

    I find that this later account of the discussion given by Mrs Peacock is more reliable than that contained in her affidavit.

35. [50]

    Mrs Easton subsequently gave Mrs Peacock a copy of the 2019 Will, as well as copies of the enduring power of attorney and the appointment of enduring guardian.

36. [51]

    Mrs Peacock says that following 29 May 2019, she started paying Mrs Easton’s bills and receiving her mail. She also says she took responsibility for checking on her property and its upkeep. She says she maintained the house and garden. However, in all of this she “only took steps following consultation with Eva with respect to any bills and payments as Eva was always interested and concerned about her finances.” I accept that these things occurred in the manner described by Mrs Peacock.

37. [52]

    This practice of consulting with Mrs Easton on financial matters assumes some significance in the context of the events of 2020. Despite holding an enduring power of attorney and despite being her guardian, Mrs Peacock was either unable or unwilling to assume full control of Mrs Easton’s finances. Mrs Easton banked with passbooks at the local ANZ branch But Mrs Peacock did not generally have possession of the passbooks. She did hold a Visa card that allowed her to pay bills on Mrs Easton’s behalf but she did not know the difference between a credit card and a debit card and was unable to say whether the visa card she held was one or the other. She had no role in ensuring that there were funds available for the Visa card. She did not know how funds were deposited into the Visa card account.

38. [53]

    Mrs Easton was very interested in her financial affairs and always wanted to know what bills had been paid. Mrs Peacock bought a satchel for Mrs Easton which contained sleeves for each biller. Mrs Easton kept this satchel in her room at Maranatha and used it to organise bills and receipts and other financial records. When Mrs Peacock paid bills using the Visa card she would visit Mrs Easton and explain what she had done. They would place the documents into the satchel in an orderly way.

39. [54]

    So far as Maranatha was concerned, Mrs Peacock was generally only able to pay bills with the cooperation of Mrs Easton, who often did not want to pay them. That is because until May 2020 it seems that Mrs Easton preferred to pay her Maranatha bill in cash and, without the passbooks, Mrs Peacock was unable to access Mrs Easton’s cash.

40. [55]

    This same difficulty seems to have existed for some other costs. For example, Mrs Easton was unwilling to pay for gardening work at her Maloney’s Beach property because she apparently had issues with the gardener. Mrs Peacock eventually arranged for the garden to be cleared and for a skip to remove the waste, but not before the ivy had gotten out of control, overgrown into the neighbour’s garage door and begun to damage their pipes. This was in 2019 at a time when she held a power of attorney. When the fence fell down, Mrs Easton did not want Mrs Peacock to arrange to fix it.

41. [56]

    The evidence surrounding the ongoing payment of the Maranatha account whilst Mrs Peacock was assisting Mrs Easton with her finances was difficult to reconcile. Throughout 2019, Mrs Easton seems to have been in financial arrears with Maranatha. By December 2019, her account was outstanding to the amount of $10,563, representing about 10 weeks of accommodation payments. Mrs Peacock seems not to have been well equipped to manage this situation. Although she was careful, she was very slow to put a system in place that allowed Mrs Easton’s account with Maranatha to be kept up to date. Mrs Peacock was not proactive in managing issues such as this on Mrs Easton’s behalf, perhaps because as a friend she was inclined to defer to her on financial matters.

42. [57]

    Mrs Peacock eventually arranged for a meeting with the manager of Maranatha Lodge in December 2019 to discuss the situation but, as she explained, “just before we were due to have the meeting Eva told me to pay the account.”

43. [58]

    It was not until May 2020 that Mrs Peacock finally arranged for an increase to the limit on the Visa card to allow the Maranatha bills to be paid in a more timely way. However, as I will explain, this only happened after there had already been months of COVID lockdowns and the relationship between Mrs Easton and Mrs Peacock had deteriorated fairly dramatically.

44. [59]

    It is relevant to note that the difficulties that existed with Mrs Easton’s finances in 2019 and 2020 were the result of poor financial management, not a lack of funds. Mrs Easton at all points had the resources to meet her financial commitments. She owned her house outright and had no debts. An inventory of property prepared by Mr Knox shows she had multiple accounts with total funds exceeding $300,000 as at 1 July 2022. She received a German pension and an Australian aged care allowance.

45. [60]

    It is a matter of notoriety that the COVID pandemic had a particular impact on residential aged care residents and their carers. Facilities such as Maranatha were often subject to lockdowns. Visits were often restricted and those who did visit were required to take precautions.

46. [61]

    In Mrs Easton’s case, the COVID pandemic had a direct and significant effect on her relationship with Mrs Peacock. Mrs Peacock did not have an influenza vaccination and was not willing to get one. In early 2020, this made it impossible for her to visit Mrs Easton at Maranatha due to the Public Health (Covid-19 Residential Aged Care Facilities) Order 2020 (NSW) issued under section 7 the Public Health Act 2010 (NSW) on 24 March 2020.

47. [62]

    It is not entirely clear when the communication freeze between Mrs Peacock and Mrs Easton began. Doing the best I can, it seems to have been in about the week of 9 March 2020.

48. [63]

    The Maranatha progress notes for 12 March show that Mrs Easton was upset that Mrs Peacock had not returned her passport and her two passbooks that she had taken on Monday 9 March. Apparently, a nurse called Mrs Peacock about this but Mrs Peacock gave no evidence about this discussion. The progress notes show that Mrs Easton remained upset throughout the day and that she was “a bit hesitant” to speak with Mrs Peacock.

49. [64]

    I note also that that was exactly the week that Mrs Peacock deposited a sum of $27,000 into Mrs Easton’s account. This occurred on 10 March. Mrs Peacock says that Mrs Easton had previously given her $27,000 to purchase a new car and that she decided to pay it back into her account at this time because she thought it would assist her to be able to pay a refundable accommodation bond, thus reducing her ongoing Maranatha charges. I found this evidence somewhat confounding in that the $27,000 was paid into Mrs Easton’s bank account on 10 March, which was after the aged care at-home package was approved (which was on 9 March) but before Mrs Easton supposedly said she wanted to stay at Maranatha (which was on 13 March). It would not have been until after 13 March that there would have been any real need to consider payment of a refundable accommodation bond.

50. [65]

    Ultimately, I do not need to decide exactly why Mrs Peacock repaid the $27,000, but I do find that their relationship was materially worse from about the middle of March and that both of them knew it. By May, they were not speaking at all despite Mrs Peacock’s efforts.

51. [66]

    An undoubted cause for the breakdown in their relationship was the fact that Mrs Peacock was unwilling to get a flu vaccination and that, as a result, she was unable to visit Maranatha. This made Mrs Easton angry and upset.

52. [67]

    At the hearing, Mrs Peacock claimed not to understand why Mrs Easton had ever become angry and upset with her. She also submitted that it was irrational that Mrs Easton should have been angry and upset with her because she should have realised that it was impossible for her to visit given that she did not want to get a flu vaccination. I am unable to accept that Mrs Peacock did not know why Mrs Easton was upset at the time. Her own affidavit dated 5 December 2022 says:

53. [68]

    That affidavit also records a conversation Mrs Peacock had with the manager of Maranatha, Grant Doran, where Mrs Peacock was told:

54. [69]

    I am also unable to accept that it was irrational of Mrs Easton to be upset about the fact that Mrs Peacock stopped visiting. Because her method of managing Mrs Easton’s finances involved close consultation with Mrs Easton, Mrs Easton’s financial situation became very strained once Mrs Peacock stopped visiting. Documents filed in support of a 2021 application to NCAT for the appointment of the NSW Trustee & Guardian to manage her affairs include an account statement from Maranatha showing that during the whole of the 2020 year, Mrs Easton was constantly in arrears which must have been a real source of anxiety for her.

55. [70]

    By about May 2020 the situation between Mrs Easton and Mrs Peacock had deteriorated quite seriously. Clinical notes, as well as testimonial evidence from one of her occupational therapists, Ms Flannery, demonstrate that Mrs Easton was angry with Mrs Easton for, as she perceived it, abandoning her. That evidence also demonstrates that her personal finances were a particular source of anxiety for her throughout the period from May to November 2020.

56. [71]

    In May 2020, a meeting occurred between Mrs Peacock, Mrs Easton, and the manager of Maranatha, Mr Doran. The discussion took place outdoors because Mrs Peacock was not permitted indoors. Mr Doran suggested at this meeting that perhaps the NSW Trustee & Guardian should be appointed to manage Mrs Easton’s financial affairs.

57. [72]

    Mrs Peacock was not in favour of the NSW Trustee & Guardian being appointed. She argued the case in telephone calls with Mr Doran. She also tried to call Mrs Easton to discuss the issue, however, Mrs Easton refused to return her calls.

58. [73]

    The Maranatha progress notes show that both nursing staff and management were speaking with Mrs Easton in May 2020 about the situation with her finances and with Mrs Peacock. A note for 22 May reads:

59. [74]

    A note for 28 May reads:

60. [75]

    On 21 July 2020 a registered nurse named Manisha performed a Mini-Mental State Examination (MMSE) on Mrs Easton. The MMSE is a test used by health professionals to measure cognitive function. Mrs Easton scored 24/30 on the 21 July MMSE.

61. [76]

    Ms Cristina Giusti, a consultant working at Maranatha, spoke with Mrs Easton on 13 August. She recorded that Mrs Easton “brought up her long-standing issue with her POA which has been causing her a great deal of anxiety”. Ms Giusti advised her about the OPAN and Mrs Easton agreed that Ms Giusti could contact them on her behalf, which she did. Ms Giusti also agreed that Mrs Easton could use her (that is, Ms Giusti’s) phone so that OPAN could call her.

62. [77]

    The reference to OPAN was to the Older Persons Advocacy Network. Clinical notes show that in the early part of August 2020, either Giusti or Mr Doran contacted OPAN for advice about Mrs Easton’s issues “with current POA and legal counsel”. Ms Flannery gave evidence that Ms Giusti had told her that OPAN was contacted “for advice regarding Eva wanting to changer her will.” This led to a social worker from OPAN interviewing Mrs Easton. That social worker said to either Ms Giusti or Mr Doran that they should contact a local solicitor.

63. [78]

    There was little evidence as to Maranatha’s dealings with OPAN or the consultation that led to the decision by Maranatha to contact a local solicitor on Mrs Easton’s behalf. Contacting a solicitor was not something that a manager of Maranatha would ordinarily do, but clearly someone – probably Ms Giusti or Mr Doran – formed the view in the light of the consultation with OPAN that Mrs Easton’s concerns required a lawyer. They were no doubt also thinking of Maranatha’s own financial position, which was fair enough.

64. [79]

    On 17 August 2020 a nurse recorded that Mrs Easton was “distressed this week over her infected eye and POA issues…Eva doesn’t want her POA contacted about her…” This was a reference to Mrs Peacock.

65. [80]

    On 1 September 2020, Mrs Peacock again spoke with Mr Doran. As I have already noted, he informed her that Mrs Easton was “happy for NSW Trustee to manage her financial affairs, as you are currently unable to continue in this role as you are not vaccinated and Eva is angry with you. Eva is aware there will be charges and she is happy with that.”

66. [81]

    The reference to “charges” was to the cost associated with having her financial affairs managed by the NSW Trustee & Guardian. This is one of the reasons Mrs Peacock did not want Mrs Easton’s affairs to be managed by the NSW Trustee & Guardian.

67. [82]

    Mrs Peacock says that she asked on this occasion about whether the NSW Trustee had yet been appointed and expressed uncertainty about whether in the circumstances she was able to operate Mrs Easton’s accounts pursuant to her existing power of attorney.

68. [83]

    Mrs Peacock eventually consulted a solicitor about what she should do. Following that advice, on 17 September 2020 she executed a document entitled “Notice of Resignation” whereby she resigned as attorney and guardian. She delivered two copies of this document to Maranatha, one for management and one for Mrs Easton. By this point, she had not spoken with Mrs Easton in at least three months. She says that at the time she resigned, she believed that the appointment of the NSW Trustee & Guardian to manage Mrs Easton’s financial affairs was imminent.

The evidence of Ms Flannery

1. [84]

   It is appropriate at this point in the narrative to note the evidence of Ms Flannery, one of the occupational therapists who treated Mrs Easton in 2020.

2. [85]

   Ms Flannery has practiced as an occupational therapist for 23 years. In addition to her qualifications as an occupational therapist, Ms Flannery has a Diploma in Law and was admitted as a solicitor in 2012. She worked briefly in the law before returning to occupational therapy. In the course of her legal training she completed the subject of Succession Law in 2010. Succession was also a topic which she covered at the College of Law in 2012. Ms Flannery is aware of the decision in Banks v Goodfellow, particularly what was said about the test for capacity for making a will at page 565.

3. [86]

   Ms Flannery worked as an occupational therapist at Maranatha between March 2018 and December 2020. She met Mrs Easton in March 2018. At that time, Mrs Easton received occupational therapy on a 1:1 basis for 20 minutes, four times each week. Ms Flannery was very frequently the therapist who saw Mrs Easton.

4. [87]

   Ms Flannery recalls Mrs Easton at that time (that is, in 2018) as someone who liked to keep to herself and who worried a lot. She also recalls her being methodical and exact. She recalls that the other occupational therapist who worked with Mrs Easton had come up with the idea of providing her with a book so that she and the kitchen staff could write down all of the meals she had ordered and keep track of what she received.

5. [88]

   She also recalls that Mrs Easton would keep a methodical record of her day on paper napkins. The napkins would record the date, name of her carer for the morning and afternoon, what medications she had been given and by whom, whether she had opened her bowels, whether she had showered and so on.

6. [89]

   She recalls that Mrs Easton was very particular about her possessions. Her room was sparsely decorated. The only personal possessions were her clothes, German opera books and a book which Ms Flannery described as some kind of encyclopedia. Mrs Easton could talk about classical music at length. She talked about her life in Germany as a young woman and her work in a bank. She also told Ms Flannery about her friends, the Schefflers.

7. [90]

   Ms Flannery gave the following evidence of how she perceived Mrs Easton during 2018:

8. [91]

   Ms Flannery did not see Mrs Easton regularly in much of the 2019 to 2020 period, as she was at that time generally working with dementia patients in the dementia ward, which was her preference.

9. [92]

   From about August 2020 Ms Flannery returned to working in the high-level care ward where Mrs Easton was resident. From August to December 2020 she saw Mrs Easton very regularly on a 1:1 basis. She saw her between one and three times each week, for periods ranging from five to 20 minutes.

10. [93]

    Ms Flannery described three particular changes in Mrs Easton compared to 2018.

11. [94]

    First, she was surprised to see that Mrs Easton had kept all of her napkins. At the same time, Mrs Easton said she did not like having them and that they were messy.

12. [95]

    The second change related to her mobility. She now noticed that she needed to rely on a four-wheeled walker to walk outside her room.

13. [96]

    The third change related to Mrs Easton’s worrying. Whereas previously she had been anxious and worried about whether to stay at Maranatha or go home, or what meal she should have, Ms Flannery now found that she was also very worried about her paperwork and organising her finances. She had bags of paperwork under her desk to which she would point and say: “look at this! It is dreadful. I do not know what to do.” At the same time and linked to this, Mrs Easton would mention Mrs Peacock with anger and say: “I do not want her to have anything of mine”. Mrs Easton said these kinds of things – about her finances and not wanting Mrs Peacock to get anything – almost every time she saw Ms Flannery during this period.

14. [97]

    Ms Flannery was concerned about all of this in her professional capacity because it was causing anguish to Mrs Easton. Ms Flannery broadly understood at the time that the enmity had something to do with Mrs Peacock not visiting but that, whatever the cause, Mrs Easton was consistent in her view that she did not want Mrs Peacock to have anything of hers. Ms Flannery estimates that Mrs Easton told her that she did not want Mrs Peacock to get anything of hers on no less than about 20 occasions in late 2020, including in August and September.

15. [98]

    So far as Mrs Easton’s other worries were concerned, Ms Flannery helped Mrs Easton create a plan to deal with all of the napkins by taking them away and burning them. Mrs Easton first reviewed them and then gave them to her to destroy, which Ms Flannery duly did. She even recorded the destruction to show her. All of this was apparently of some comfort to Mrs Easton.

16. [99]

    I accept Ms Flannery’s evidence as to what she observed in Mrs Easton generally during the period 2018 to the end of 2020.

The evidence of Mr Knox

1. [100]

   By the time Mrs Peacock resigned as power of attorney and guardian, Maranatha had already contacted a local solicitor on Mrs Easton’s behalf, as OPAN had recommended. They did so by way of a telephone call and subsequent website inquiry with Kennedy & Cooke Lawyers, Mr Knox’s firm, on 11 September 2020. The website inquiry contains the following note from Ms Giusti:

2. [101]

   An appointment was made for Mr Knox to attend on 22 September 2020 and was put into his electronic diary by Melissa Drew, the employee at his firm who had taken the call from Ms Giusti. The appointment was relevantly for “New Will, POA and EG”.

3. [102]

   Mr Knox has been practising as a solicitor for 30 years. He is the sole resident partner of the Batemans Bay office of Kennedy & Cooke. He does about 70 wills each year. He has been to Maranatha on at least 80 occasions over a period of about 20 years.

4. [103]

   Mr Knox attended Maranatha on 22 September 2020, as arranged, and noted that Mrs Easton was living in the high-care section and was not living independently. He was taken to Mrs Easton’s room by Ms Giusti. He noted an elderly lady in a nightgown with a cardigan and combed hair. He thought she looked neat and appropriately dressed. He thought she was about 80 years old and was small and frail. The room was tidy. A woman he believes to be Ms Flannery was also in the room.

5. [104]

   Mr Knox gave a detailed account of his discussion with Mrs Easton. Much of this account was based on a fairly detailed contemporaneous note which he made of the attendance. Mr Knox’s account was challenged as being generally unreliable. Counsel for Mrs Peacock pointed to differences between the account which he gave in his affidavit and the file note which he kept at the time. She also pointed to differences between Mr Knox’s account and the account given by Ms Flannery.

6. [105]

   For reasons I will explain in due course, I am comfortably satisfied that Mr Knox was a generally reliable witness and that the account of the 22 September meeting contained in his affidavit is a generally reliable account of what occurred at that meeting, save for some relatively insignificant details which I will explain.

7. [106]

   One such detail concerns the identity of who was present in the room with Mr Knox and Mrs Easton at the 22 September meeting. Mr Knox’s recollection is that Ms Giusti left the room and that Ms Flannery stayed. In his memory, this is because Mrs Easton said “you stay” when the woman he believed to be Ms Flannery moved to leave. However, for reasons I shall explain in due course, I find that it was probably Ms Giusti who stayed in the room on this occasion.

8. [107]

   According to Mr Knox’s affidavit dated 6 December 2022,at the outset of their meeting, Mr Knox and Mrs Easton had the following exchange:

9. [108]

   Much criticism was directed to Mr Knox in relation to this evidence. His file note records the following:

10. [109]

    During cross examination Mr Knox accepted that he asked a closed question to Mrs Peacock about the will, like the one reproduced in his file note, as opposed to an open question, like the one contained in his affidavit.

11. [110]

    Mr Knox appreciated immediately that Mrs Easton was a “quite anxious person” and that “she seemed to be somewhat distressed”. He formed this view because she was fidgeting. She occasionally appeared to be on the verge of crying.

12. [111]

    The conversation continued as follows:

13. [112]

    At this point, Mrs Easton again became distressed and seemed to be on the verge of crying. She again pointed at the plastic bags and continued:

14. [113]

    Mr Knox’s recollection is that Ms Flannery then spoke and that the following conversation occurred:

15. [114]

    The evidence as to who mentioned the Sydney Opera House is inconclusive. In any event, it does not seem to have been Mrs Easton’s idea. However, once it was mentioned, she was enthusiastic about it. She smiled and seemed to relax. Her mannerisms changed immediately and she stopped fidgeting.

16. [115]

    There followed a discussion in these terms:

17. [116]

    Upon leaving Mrs Easton’s room, Mr Knox had the following discussion with Ms Giusti:

18. [117]

    An aspect of Mrs Peacock’s case was that Mr Knox suggested that the NSW Trustee & Guardian be appointed because he did not at the time believe that Mrs Easton had the mental capacity to manage her own finances. I do not accept that that was so. Mr Knox made the suggestion about the NSW Trustee & Guardian because he believed that Mrs Easton needed someone to physically assist her with her finances. I accept his evidence that he did not make the suggestion because he had any concern about her mental capacity. Mr Knox has had many interactions with elderly people in aged care facilities over the years and was familiar with the kinds of difficulties which elderly people in those circumstances typically have with banking, including internet banking. He believed Mrs Easton’s difficulties were of this kind. He pointed out that, in their discussion, Mrs Easton had said “the power of attorney needs to look into my finances.” At the same time, he was conscious of the difference between having mental capacity to make a will, on the one hand, and having mental capacity to manage one’s own finances, on the other. He did not confuse these issues.

19. [118]

    I also accept Mr Knox’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 Mrs Easton’s mental capacity to manage her finances.

20. [119]

    Mr Knox returned to Maranatha Lodge on 19 November 2020 in order to have Mrs Easton execute her will. The reason for the delay between taking instructions and executing the will was that there had been COVID lockdowns and it had not been possible for him to return to the premises in the meantime. There had also been a change in management staff at Maranatha, which may have contributed to the delay.

21. [120]

    Mr Knox was accompanied on this subsequent occasion by an employed solicitor of Kennedy & Cooke, Ms Sophie Nedwich. Ms Flannery was also present in the room when the will was being signed.

22. [121]

    Mr Knox did not keep a note of his attendance on 19 November, but Ms Nedwich made a short note of the visit when she returned to the office later that day.

23. [122]

    Because so much turns on Mr Knox’s evidence of his discussion with Mrs Easton on 19 November about the 2020 Will, it is appropriate to set Mr Knox’s evidence out in some detail. It is also appropriate to set out the terms of the 2020 Will.

24. [123]

    Omitting formal parts, the 2020 Will was as follows:

25. [124]

    Upon entering the room, Mr Knox and Mrs Easton had the following exchange:

26. [125]

    Mrs Easton was again visibly anxious and distressed. She did however seem to be comfortable and she appeared to Mr Knox to be trusting of Ms Flannery. Mr Knox noticed that, as on the previous occasion, Mrs Easton was brusque with the staff. Two staff had been assisting her with toileting just as he arrived and he noticed that the interactions between Mrs Easton and the staff were uncomfortable. Mrs Easton said “I hate it here. They are not taking care of me.”

27. [126]

    It appeared to Mr Knox that Mrs Easton was fixated on the fact that she had no idea of how her finances were being arranged and who was paying her debts. She said, more than once, words to the effect: “I do not know what is going on with the bank” and “no one is helping me.”

28. [127]

    Mr Knox said:

29. [128]

    Mr Knox read out the first four paragraphs of the will line by line. He summarised the trustee powers in paragraph five. In the witness box, he was challenged to summarise that paragraph in the manner he had done with Mrs Easton. He did so succinctly and clearly.

30. [129]

    He then read out paragraphs six and seven. He paused and asked “is that your wish, Eva?” to which she responded “yes”. He also noticed that Mrs Easton nodded several times as he was reading.

31. [130]

    When he had finished reading the will, Mr Knox and Mrs Easton had the following further discussion:

32. [131]

    Mr Knox then presented the will to Mrs Easton and asked her if she wished to read it. She took the will and read it through. He recalls that she spent a total of about 10 minutes considering the will.

33. [132]

    He then asked: “do you wish to sign this will, Eva?” to which she responded “yes, I do.”

34. [133]

    Mrs Easton then signed the will in front of Mr Knox, Ms Nedwich and Ms Flannery. It was formally witnessed by Mr Knox and Ms Nedwich.

35. [134]

    Following the execution of the will, Mr Knox asked Mrs Easton if there was anything else she wished to say. She said “no, but I want my finances looked after because Isabelle [Peacock] is not doing it anymore and is not helping me.”

36. [135]

    Mr Knox responded by saying that he could not do that but that he would “see if Maranatha will organise someone to look after your finances”.

37. [136]

    Following the meeting with Mrs Easton, Mr Knox had a discussion with a manager of Maranatha Lodge. Mr Knox did not recognise this manager, who had commenced in the period between his 22 September meeting and that day. The manager asked Mr Knox if he could act as Mrs Easton’s attorney. Mr Knox explained that he would not accept that appointment and said “I thought you would have organised with the Trustee & Guardian to have control of her finances.” To Mr Knox’s surprise, the manager said they did not know how to arrange for that to occur but said that they would look into it.

38. [137]

    Mr Knox and Ms Nedwich returned to the office. Ms Nedwich made a file note of their attendance. The will was placed in a deed packet.

39. [138]

    Representatives of Maranatha Lodge contacted Mr Knox’s office several times to request that he accept an appointment as Mrs Easton’s attorney and guardian. He declined.

40. [139]

    The immediate significance of these discussions between Mr Knox and the staff of Maranatha about the appointment of an attorney and guardian for Mrs Easton is that the staff must have been aware of Mrs Easton’s need for someone to assist her with her financial affairs and, specifically, that Mrs Peacock was no longer someone whom it was appropriate to approach about this matter. They clearly did not think that Mrs Easton’s antipathy towards her was some passing whim.

41. [140]

    As I have mentioned, Mr Knox kept a detailed note of the 22 September meeting which broadly corroborated the account of that meeting set out above. The brief file note prepared by Ms Nedwich following the 19 November meeting also broadly corroborates Mr Knox’s account of the later meeting, at least so far as it goes.

42. [141]

    However, as will be seen, Ms Flannery’s account is somewhat different in that she only recalls one meeting with Mr Knox in 2020 and that the meeting she attended was the meeting at which the will was executed, which was in November. She does not recall attending the September meeting.

43. [142]

    It was not suggested to Mr Knox that he was mistaken about whether it was Ms Flannery in the room with him and Mrs Easton on 22 September 2020.

44. [143]

    This leaves a position of some doubt as to whether Mr Knox’s account is altogether accurate, but this doubt is relatively easily resolved. It must be the case that either Mr Knox or Ms Flannery has failed to remember the 22 September 2020 meeting correctly. One possibility is that Mr Knox was mistaken as to whether it was Ms Giusti or Ms Flannery who stayed in the room. After all, he had never met either of them before and has almost nothing to do with them since. The only (other) times he ever met Ms Flannery were on 19 November 2020, at the execution meeting, and at Mrs Easton’s very brief funeral in late 2021. It would hardly be surprising if he were simply mistaken as to whether the person who stayed in the room as he took instructions for Mrs Easton’s will was Ms Flannery or Ms Giusti.

45. [144]

    The only other realistic possibility is that Ms Flannery is wrong about what occurred and that she has simply conflated the two meetings in her memory. After all, the events were now almost four years ago and none of the persons involved from her point of view were of any particular significance. She was attending a meeting (or meetings) in the course of an otherwise busy schedule of seeing patients. She did not have any special responsibility to either attend or record what occurred at either meeting. From her point of view, she was being courteous. She was assisting an elderly patient by being present at a meeting, but that was all. It would not be at all surprising if she were to conflate the two meetings if in fact she did attend two meetings.

46. [145]

    Neither possibility gives me any reason to doubt the general accuracy of either witness’s evidence. Both possibilities are, in the circumstances, quite anodyne explanations for the differences between their accounts.

47. [146]

    For completeness, I find that it is Mr Knox who is mistaken about what occurred, not Ms Flannery. This means that it was Ms Giusti, not Ms Flannery, who stayed in the room with Mr Knox and Mrs Easton on 22 September. I reach this conclusion for several reasons.

48. [147]

    First, it was suggested to Ms Flannery in cross-examination that she was mistaken and that she was present when instructions for the will were taken. She gave this suggestion some thought, but she did not think she was mistaken. She was not insistent about the point, but her recollection was that she had only been at one meeting and it was the meeting described in her affidavit. Given that I have no other doubts about the general reliability of Ms Flannery’s evidence, I am inclined to give this evidence a fair amount of weight.

49. [148]

    Next, her recollection is that she learned about Mrs Easton making a will from Ms Giusti, who informed her Maranatha management had already contacted OPAN, that on their advice a solicitor had been contacted, and that she said:

50. [149]

    It is unlikely that Ms Flannery would have this recollection if, in fact, she had been present in the room with Mr Knox when Mrs Easton gave instructions for the will and when the suggestion of the Opera House Trust had been mentioned.

51. [150]

    Finally, Ms Flannery recalls that her first contact with Mr Knox was at a meeting at which he was accompanied by a junior solicitor, which must have been the November meeting, not the September meeting.

52. [151]

    Ms Flannery does not have a detailed recollection of the things said at the meeting with Mr Knox on 19 November, although she does have some specific recollections about aspects of what occurred.

53. [152]

    She observed that Mrs Easton was properly dressed. She was not dressed as she usually was at that time. Mrs Easton acknowledged Mr Knox and his colleague. She observed that Mrs Easton was sitting up, either on the edge of her bed or on a chair. She observed that Mrs Easton listened carefully to Mr Knox as he spoke. She recalls that Mrs Easton asked Mr Knox about her finances.

54. [153]

    Ms Flannery is, as noted, also qualified as a lawyer and is familiar with the test for capacity for making a will described in Banks v Goodfellow. She was conscious of this on 19 November. When she saw Mrs Easton’s GP, Dr Langley, in the corridor that day, she raised the question of Mrs Easton’s capacity with him. She did not do so because she herself harboured any doubt about Mrs Easton’s capacity but simply because she thought that Eva was going to be executing a new power of attorney and making a will that day.

55. [154]

    When pressed on this issue in cross-examination Ms Flannery gave evidence that she did not herself have a doubt about Mrs Easton’s capacity to make a will. She said that the issue of capacity was on her mind due a conversation she had had with someone at the Public Trustee & Guardian. I accept her evidence that she raised the matter with the GP as, in effect, a matter of prudence and not because she doubted Mrs Easton’s mental capacity either to execute a will or a power of attorney.

56. [155]

    It was this interaction that led Dr Langley to make the 19 November 2020 note in Mrs Easton’s clinical notes which I will describe below.

The evidence of Dr Langley

1. [156]

   Dr Langley has been a medical practitioner for 39 years. He has been in practice as a rural GP since about 2000. He has had and continues to have a large number of geriatric patients. As at the time of the hearing, Dr Langley had 27 residential nursing home patients in his care. On average, in each year he manages around 500 patients who are suffering from some form of dementia or declining cognition. He routinely engages patients in conversations for the purpose of diagnosing conditions such as these.

2. [157]

   It is appropriate to note at the outset that Dr Langley does not hold himself out to be a specialist, much less an expert, in the area of dementia and declining cognition. When he was asked by the plaintiff’s solicitors to respond to Dr Lonie’s report (Dr Lonie being the expert clinical neuropsychologist jointly engaged by the parties to give an opinion in this matter), he pointed out that he was not qualified to give an expert opinion in this field. This was, of course, an entirely appropriate response. But it has been seized on by counsel for Mrs Peacock as proof positive that Dr Langley’s contemporaneous observations and his own contemporaneous assessment of Mrs Easton’s capacity should be given no weight.

3. [158]

   It is no such thing. Dr Langley treated Mrs Easton extensively over the period leading up to the making of the 2020 Will and is able to give direct, probative evidence of what he saw her do and what he heard her say at the time. In the course of treating her, Dr Langley reached conclusions as to Mrs Easton’s capacity and he also told the Court what those conclusions were, but he did not seek to controvert Dr Lonie’s opinions. He simply pointed out that, at the time he was in the room with Mrs Easton on 19 November 2020 and based on a long history of treating her, he did not form the same opinion which Dr Lonie formed based on her review of the material provided to her. He is not relied on as an expert.

4. [159]

   In addition to the clinical experience I have described, Dr Langley also completed a training seminar in 2010 on the topic of assessing testamentary capacity. That seminar was conducted by Professor Dr Susan Kurrle, a specialist geriatrician who also holds a visiting position at Batemans Bay hospital. When Dr Langley does have concerns about a patient’s mental capacity to manage their affairs, make a will, drive a car, or to live independently, he usually refers them to Dr Kurrle. Over the last 15 years, Dr Langley has had, on average, about five patients per year for whom he cares in conjunction with Dr Kurrle.

5. [160]

   Dr Langley first saw Mrs Easton as a patient in 2010 but started to treat her on a regular basis in 2017 when she was first admitted to residential care. In the four years between the end of 2017 and when she died, Dr Langley saw her, on average, around once a month at Maranatha. He has quite good recall in relation to her.

6. [161]

   Dr Langley got to know Mrs Easton well and says he was “strangely fond” of her, although he also said that she “was a direct and forthright person and could be a difficult person to deal with.” He described her as “an abrupt person with firm likes and dislikes of certain people.” In Dr Langley’s observation, “[Mrs Easton’s] personality did not change in the time that I knew her.”

7. [162]

   From 2017 onwards, Dr Langley treated her on several occasions for depression and anxiety.

8. [163]

   Several entries made in the clinical notes at Maranatha, being the “progress notes” which I have already described and which Dr Langley tended to use to record observations, reflect that Dr Langley found Mrs Easton to be upset and unhappy on several occasions. For example, his note of Mrs Easton on 30 May 2019 (which happens to be the day after Mrs Peacock arranged for her to execute the 2019 Will) was as follows:

9. [164]

   Dr Langley was aware that Mrs Easton had few friends and no relatives with whom she was in contact. He was aware that Mrs Easton was lonely and depressed as a result of the Schefflers leaving.

10. [165]

    Two notes made by Dr Langley assumed particular significance at the hearing. The first such note was made by Dr Langley in the course of completing a “comprehensive health assessment” of Mrs Easton in April 2018. A comprehensive health assessment is a general annual review of patients in residential aged care and is covered by Medicare.

11. [166]

    Dr Langley has no specific recollection of completing the April 2018 assessment of Mrs Easton but accepts that he did so. The document itself was in evidence. Dr Langley’s notes on the form are, at best, cursory. Under the heading “Diagnosis/Health Issues”, Dr Langley wrote the words “has advanced dementia”.

12. [167]

    Dr Langley explained the circumstances in which he is likely to have completed this assessment and said that, to his embarrassment, the words “has advanced dementia” did not reflect his view about Mrs Easton at the time. It is relevant to note that counsel for Mrs Peacock did not suggest to Dr Langley in cross-examination that he did hold that opinion at the time.

13. [168]

    I also note that in none of Dr Langley’s contemporaneous clinical notes made by him did he ever refer to a diagnosis of dementia for Mrs Easton, nor did Dr Langley’s practice partner, Dr Nelson, who saw Mrs Easton on many occasions during the time she was in Maranatha.

14. [169]

    Dr Lonie placed no weight on the April 2018 “comprehensive medical assessment” in reaching her own conclusions. What Dr Langley thought about anything, either at the time or now, made no difference to her opinion.

15. [170]

    In the circumstances, I place no weight on the “comprehensive medical assessment” of April 2018 in determining whether or not Mrs Easton was capable of making the 2020 Will. It does not accurately record Dr Langley’s opinion at the time. However, the fact that Dr Langley completed the form in the way he did is, so far as it goes, a matter to be taken into account in assessing the overall reliability of his evidence.

16. [171]

    The second such note made by Dr Langley was the entry in Mrs Easton’s Maranatha progress notes on 19 November 2020, the day she executed the 2020 Will, which I referred to in paragraph [156] above. That note was as follows:

17. [172]

    “DW O/T” refers to the fact that he had a discussion with an occupational therapist, which must have been Ms Flannery.

18. [173]

    It is relevant to note the following two pieces of evidence given by Dr Langley as to the circumstances in which he came to make this note.

19. [174]

    In his 21 August 2023 affidavit, Dr Langley said:

20. [175]

    Dr Langley was asked in cross-examination about whether he could recall the name of the occupational therapist with whom he had the discussion, to which he responded:

21. [176]

    The defendant submitted that Dr Langley’s reference to Mrs Easton having the capacity to understand her “financial affairs” should not be understood as a contemporaneous observation about her capacity to make a will. It was pointed out that the question of whether someone has capacity to understand their financial affairs is a different thing from the question of whether they have capacity to make a will. A person may have capacity to make a will and yet not have capacity to manage their financial affairs.

22. [177]

    Dr Langley did not suggest that he had performed any kind of complete or thorough medical assessment of Mrs Easton’s mental capacity on 19 November 2020. However, I accept his evidence that, at the time, he was generally aware of the test for capacity to make a will, that being one of the things covered in the 2010 seminar which he attended on the topic.

23. [178]

    I also accept that when the occupational therapist asked him to make a note and when he wrote down his reference to Mrs Easton’s mental “capacity”, he had that test in mind. As he explained in his first affidavit, on 19 November 2020 he was “confident that [Mrs Easton] had the capacity to make a will and I made the note to clearly reflect that fact.”

24. [179]

    As to his observations about Mrs Easton generally, Dr Langley never considered that she developed dementia, although he accepts that she may have had early dementia which he failed to diagnose. He also formed the view that she had some degree of cognitive decline in keeping with her age. But he says there is “no way” that he missed a diagnosis of advanced dementia.

25. [180]

    Dr Langley did not refer Mrs Easton to Dr Kurrle or any other geriatrician because he did not doubt her mental capacity to manage her own affairs, to make continuing decisions about her medical treatment or her capacity to make a will.

26. [181]

    The defendant submitted that I would not place any weight on Dr Langley’s evidence. I am unable to accept that submission. Dr Langley was very well placed to give evidence about matters that bear directly on the issue in dispute. He is an experienced medical practitioner who is attuned to issues concerning cognition in elderly patients. Mrs Easton was well known to him. He saw her on the day she made the 2020 Will and did so knowing that she was making a will on that day. As I have already explained, the fact that he is not a specialist geriatrician is not to the point. He gave evidence in a straightforward manner and was quick to make concessions where appropriate. He dealt with the evidence about the April 2018 comprehensive health assessment with frankness, given the somewhat awkward nature of it.

27. [182]

    Dr Langley’s evidence was, at times, couched in terms of conclusions or opinions as opposed to strictly factual observations, inasmuch as he sometimes said that Mrs Easton had “capacity” as opposed to confining himself strictly to evidence of what he observed her do or say. There are a couple of things to be said about this. First, Dr Langley identified the basis on which he formed the view that Mrs Easton had capacity. As he said, it was in part based on the discussion he had with her on 19 November 2020 but, equally, it was informed by the very many interactions he had had with her in the preceding months and years. Insofar as his discussion on 19 November was concerned, he said:

28. [183]

    Secondly, in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Young JA (with Bergin CJ in Eq agreeing) said at [89]-[91]:

29. [184]

    Dr Langley was in a position to express a view as to Mrs Easton’s capacity. In his everyday life, Dr Langley was accustomed to making assessments of the mental capacity of elderly patients. It is appropriate that I take his contemporaneous conclusions into account in reaching my own conclusion as to whether Mrs Easton had capacity to make the 2020 Will.

Events subsequent to the 2020 Will

1. [185]

   Before turning to the evidence of Mrs Peacock, it is relevant to note that during November or December 2020, the then residential manager at Maranatha, Marie Pereira, submitted a financial management application to the NSW Civil & Administrative Tribunal (NCAT) pursuant to the Guardianship Act 1987 (NSW) seeking an order that the NSW Trustee & Guardian be appointed as financial manager for Mrs Easton.

2. [186]

   A second MMSE was performed on Mrs Easton on 17 February 2021, however during that test Mrs Easton became uncooperative and the examination was abandoned prematurely. Mrs Easton’s score on this incomplete MMSE was 14/21.

3. [187]

   On 23 February 2021 there was a hearing before Senior Members Jones and Thompson and General Member Davidson. The tribunal was satisfied that Mrs Easton was incapable of managing her financial affairs and that it was appropriate for the NSW Trustee & Guardian to be appointed.

4. [188]

   Accordingly, the tribunal made the following orders:

The evidence of Mrs Peacock

1. [189]

   Mrs Peacock gave extensive evidence about her relationship with Mrs Easton in a series of affidavits. I have already mentioned much of her evidence in the course of describing the general background to the dispute.

2. [190]

   So far as it concerns Mrs Easton’s capacity to make the 2020 Will, Mrs Peacock’s evidence was inferential.

3. [191]

   She describes a number of incidents involving Mrs Easton in the period from late 2019 to about March 2020 which, in her submission, suggest that Mrs Easton was suffering from declining cognition at that time. She also describes her interactions with Mrs Easton from 26 December 2020 onwards which, she argues, also suggest declining cognition. Many of these incidents are referred to by Dr Lonie as a basis for her own assessment of Mrs Easton’s mental capacity as at 19 November 2020.

4. [192]

   Mrs Peacock says that in late 2019 she “noticed a decline in Eva’s mental faculties.” She gives as an example an incident that occurred on 9 October 2019. She had an appointment on that day to take Mrs Easton to a podiatrist but when she arrived to pick her up, Mrs Easton was still in her underwear. Mrs Peacock expressed the view on the basis of this experience that Mrs Easton “had no comprehension of time.” After the appointment they visited a shop where “it took her an hour to select a lip balm and nivea cream.” Apparently she became very aggressive with staff when they would not serve her immediately and threw the items on the counter. She then stormed out. Mrs Easton then started “crying and screaming ‘you [Mrs Peacock] are just like the rest of them’”.

5. [193]

   When Mrs Peacock raised her concerns about this issue with Mrs Easton on 17 October, Mrs Easton did not have “any real recognition” of what she was talking about.

6. [194]

   Another incident occurred on 27 October 2019 when Mrs Peacock apparently found her “screaming, pounding and throwing things on the bed because the lady who delivered her meal could not tell her what kind of soup it was.” Mrs Peacock expressed the view that Mrs Easton was “increasingly paranoid and easily agitated” in a way she had not previously observed. She claims that Mrs Peacock was “completely oblivious to what was going on around her”. Mrs Easton was very frequently just wearing her underwear when Mrs Peacock visited.

7. [195]

   Also during late 2019, Mrs Easton often expressed a desire to try moving back to her home in Maloney’s Beach, which was unrealistic.

8. [196]

   Mrs Peacock says that Mrs Easton was “oblivious to the financial situation she was in”. Evidence of this is said to be that she did not agree to paying a refundable accommodation deposit that would have reduced her ongoing charges for Maranatha. When presented with this option she refused to consider it.

9. [197]

   Between January and March 2020, Mrs Easton frequently asked Mrs Peacock about traveling back to Germany, which would require her to renew her passport. Mrs Peacock says she considered this to be totally unrealistic, but that she did make an arrangement for Dr Nelson to attend on 12 March 2020. Mrs Peacock says the appointment was for Dr Nelson to “assess her mental capacity and ability to travel” but the progress notes suggest that Mrs Peacock asked Maranatha for her GP “to review her to attend her assessment if she is able to go back to her house, for an aged care package in the community and also if she is able to travel to Germany.”

10. [198]

    The reference to an aged care package was to an at-home aged care package which Mrs Peacock arranged on Mrs Easton’s behalf. That package was approved on 9 March 2020.

11. [199]

    The progress notes show that Dr Nelson did not have time to see Mrs Easton on 12 March. Mrs Peacock says the appointment did not go ahead because Mrs Easton “changed her mind”.

12. [200]

    Mrs Peacock finally spoke with Mrs Easton on 26 December 2020 and according to her they spoke for about half an hour “as if nothing had happened.” Mrs Easton did not seem to be angry with her and “did not seem to have any recollection of being angry” with her.

13. [201]

    She next recalls a discussion in February 2021 when Mrs Easton said “they are up to something. I can’t talk on the phone as they are listening”, although the context of this discussion was not explained.

14. [202]

    Mrs Peacock did not visit Mrs Easton and take her out until 10 March 2021. On that day, she picked her up, took her to a chemist, they had a Chinese meal for lunch and then spent the rest of the day at her house at Maloney’s Beach. Mrs Peacock’s observations as to her mental state on that day were twofold. First, she recalls that she took a painting and an expensive genuine Louis Vuitton wallet back to Maranatha. Although she was not aware of this at the time, Mrs Peacock later heard that she had given the wallet to a staff member of Maranatha “with no comprehension of the value.” There is no evidence that this actually occurred or that Mrs Easton had “no comprehension of the value” of the wallet. In fact, an expensive genuine Louis Vuitton wallet was found amongst her belongings by Mr Knox.

15. [203]

    The second thing noted by Mrs Peacock on 10 March was that she had the following exchange with Mrs Easton:

16. [204]

    Mrs Peacock next visited with Mrs Easton on 12 April 2021, when she took her out for her 89th birthday. They went to beach and then had a very pleasant lunch at the Catalina Country Club. They met friends, had a birthday cake, and then later visited Malua Bay where she had previously lived. Mrs Peacock said it was a beautiful day.

17. [205]

    There was further communication between the two of them in June, July and August 2021. Mrs Peacock took Mrs Easton to her Maloney’s Beach house on 5 August 2021. When they arrived, their keys would not work because the NSW Trustee & Guardian had apparently changed the locks. There was a gardener tending to the property at the request of the NSW Trustee & Guardian. Mrs Peacock says she had the following exchange with Mrs Easton:

18. [206]

    It was not long after this that Mrs Easton died.

19. [207]

    I will comment below on the weight which I give to Mrs Peacock’s evidence about Mrs Easton’s capacity.

The evidence of Dr Lonie

1. [208]

   By a joint letter of instruction dated 5 May 2023, the parties engaged Dr Jane Lonie, a consultant clinical neuropsychologist, to prepare an expert opinion report on the following questions:

2. [209]

   Those questions broadly reflect the test for capacity in Banks v Goodfellow. The material upon which Dr Lonie was asked to base her opinion included the pleadings, together with the parties’ affidavits filed as at the time of the letter of instruction. Dr Lonie was also provided with material produced on subpoena by NCAT, Catholic Healthcare Ltd (the operator of Maranatha) and Dr Langley’s practice.

3. [210]

   Dr Lonie prepared a report dated 29 May 2023. Later, after the parties had exchanged further affidavits, those further affidavits were provided to Dr Lonie with instructions for her to provide a supplementary report. Dr Lonie prepared a supplementary report dated 4 December 2023. Both reports, together with all of the material on which Dr Lonie had been asked to base her opinions, were in evidence.

4. [211]

   Dr Lonie’s reports were thorough and clearly reasoned. She conducted a thorough review of the available medical and lay evidence in relation to Mrs Easton. She noted that the medical evidence suggested a history of Transient Ischaemic Attacks as early as 2009. She considered that there had been alterations in Mrs Easton’s cognitive functions from 2014. Her report includes the following overall conclusions:

5. [212]

   Her overall opinions included that at the relevant times of provision of instructions for the 2020 Will and as at the time of its execution, Mrs Easton 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.”

6. [213]

   At paragraph 129 of her report she said:

7. [214]

   I also note her final observation that:

8. [215]

   As is apparent from this brief statement of her conclusions, Dr Lonie’s opinions were at times expressed by reference to her own particular understanding of the nature and quality of the relationship that in fact existed between Mrs Easton and Mrs Peacock at the time of the 2020 Will. Her opinions were also, at least in some respects, to the effect that Mrs Easton’s ability to weigh competing claims was affected by cognitive impairment such that she would not have come to the same decision if she had not been affected by cognitive impairment. That is, her opinions were not so much that Mrs Easton could not weight up the competing claims on her testamentary bounty at all; it was that she could not have done so in the same way as if she were unaffected by dementia.

9. [216]

   Dr Lonie’s first report carefully addressed each of the questions she was asked to consider. It is appropriate to record her principal opinions on each of these questions and to note her reasoning process.

10. [217]

    As to whether Mrs Easton suffered from a medical or mental condition which impaired her cognition as of 19 November 2020, Dr Lonie noted that:

11. [218]

    She noted that signs of dementia in the form of forgetfulness, indecisiveness, irrational thinking, loss of insight, anger and unrealistic expectations “were observed by Mrs Peacock from October 2019 onwards.” It is not clear whether the fact that Mrs Peacock did not speak to or communicate with Mrs Easton at all from about May 2020 until late December 2020 was brought to Dr Lonie’s attention.

12. [219]

    She said that “it is highly probable Ms Easton was suffering with dementia at the times she provided instructions for and executed the [2020 Will].”

13. [220]

    As to the basis of that opinion, Dr Lonie gave a concise and helpful description of the DSM-V Criteria for Major Neurocognitive Disorder due to Vascular Disease (formerly known as Vascular Dementia) and its clinical features. She pointed out that the criteria no longer require the presence of recent memory impairment. She also pointed out that the MMSE does not assess the primary manifesting cognitive features of major neurocognitive disorder due to vascular disease.

14. [221]

    As to the nature and severity of her cognitive impairment, Dr Lonie noted that Mrs Easton’s overall MMSE score in July 2020 had been 24/30 but again pointed out the limitations of that analytical tool in diagnosing major neurocognitive disorder due to vascular disease.

15. [222]

    Dr Lonie catalogued a long list of cognitive and behavioural symptoms of the disorder exhibited by Mrs Easton, according to the clinical notes.

16. [223]

    Dr Lonie then addressed each of the questions drafted by reference to the Banks v Goodfellow criteria, as she had been asked to do. As to whether any impairment would have compromised Mrs Easton’s capacity with respect to awareness and appreciation of the significance of the act of making a will on 19 November 2020, she concluded that Mrs Easton “is likely to have retained a sound understanding of the nature and effect of a Will at the times she gave instructions for and executed the [2020 Will].” Despite her diagnosis of major neurocognitive disorder due to vascular disease, she pointed out that patients will often retain semantic and long-term knowledge of a crystallised nature even in the middle stages of the disorder.

17. [224]

    As to whether any impairment would have compromised Mrs Easton’s capacity with respect to her awareness of the nature and extent of her estate, Dr Lonie noted the terms of the discussion between Mr Knox and Mrs Easton on 22 September 2020. Dr Lonie said that, in that discussion, “Mrs Easton indicated that she did not have an understanding of her current financial situation beyond knowing she owned a house and had a bank account”. She referred to those aspects of the discussion in which Mrs Easton expressed frustration about not knowing what her “current financial situation” was.

18. [225]

    The reference here to Mrs Easton’s knowledge of her “current financial situation” is somewhat baffling. The particular issue at hand is whether she understood the assets dealt with by testamentary disposition. As to that matter, the statement to which Dr Lonie referred shows that Mrs Easton knew full well that she owned a home at Maloney’s Beach; that she had received Australian and German pensions; and that she held funds with the ANZ. So far as Mrs Easton’s knowledge of her “current financial situation” was concerned, it is uncontroversial that she did not know specific dollar amounts, especially in circumstances where her finances had been managed opaquely and haphazardly by Mrs Peacock.

19. [226]

    Dr Lonie concluded as following on this point:

20. [227]

    As to whether any impairment would have compromised her capacity with respect to an awareness of those who might reasonably be thought to have a claim on her estate, Dr Lonie first noted that “Hildegard and Heinz Scheffler do not appear to have been discussed during the course of either the 22 September 2020 or the 19 November 2020 meeting with [Mr] Knox.” She notes that in all likelihood Mrs Easton would still have retained memory and awareness of them at that point. She pointed to evidence from January 2018 that showed Mrs Easton – at that point – regarded them as wonderful people.

21. [228]

    Dr Lonie’s conclusion on this issue is to the effect that her cognitive disorder is likely to have adversely impacted her ability to recall “events and discussions involving the support and assistance that was afforded to her by Hildegard and Heinz Scheffler.” Dr Lonie did not conclude that she suffered the same adverse impact so far as her ability to recall events concerning Mrs Peacock.

22. [229]

    Dr Lonie’s opinion on the final Banks v Goodfellow question is of particular significance given her earlier conclusions. The final question was as to how any impairment would have compromised Mrs Easton’s capacity with respect to the ability to weigh up and discriminate between the respective claims of the potential beneficiaries.

23. [230]

    Dr Lonie approached this issue by first noting Mrs Easton’s resistance to “the support, advice and assistance she was provided with in managing her finances” by Mrs Peacock. She noted Mrs Easton’s resistance to selling her home. Dr Lonie then noted that the appointment with Mr Knox had been made “in the context of an accumulation of unpaid Nursing Home fees and Ms Easton’s persisting and recurrent distressed communications regarding concerns about the management of her finances”. Here 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.

24. [231]

    In cross examination she explained that, as she understood the facts, the arrangement for the meeting with Mr Knox had had nothing to do with any desire on Mrs Easton’s part to make a will. As I have already noted, this was not so. Mrs Easton freely expressed the view that she did not want Mrs Peacock to get anything on many occasions in late 2020.

25. [232]

    Dr Lonie then noted the reasons given by Mrs Easton to Mr Knox as to why she wished to make a new will. She pointed out and highlighted the numerous statements made by Mrs Easton as to why she was angry with Mrs Peacock and why she now wanted to make a new will to disinherit her. She said:

26. [233]

    Dr Lonie said that Mrs Easton had a “lack of understanding” as to why Mrs Peacock stopped communication with her. She also record’s Mrs Peacock’s evidence that in early 2021 when she was again on speaking terms with Mrs Easton, Mrs Easton said that she had a vague recollection that she had “signed some papers.”

27. [234]

    Dr Lonie particularly emphasises that the Maranatha progress notes and other clinical notes “do not document any evidence of Ms Easton having talked about her Will or expressed concerns around wishing to alter her will, prior to her first meeting with [Mr] Knox on 22 September 2020.”

28. [235]

    These observations all led Dr Lonie to the conclusion extracted at [211] above.

29. [236]

    Dr Lonie prepared a supplementary report dated 4 December 2023 after being provided with copies of new affidavits sworn by Ms Flannery, Dr Langley, Ms Nedwich and Ms Peacock, as well as copies of documents subpoenaed from Legacy Will & Estates, the plaintiff’s former solicitors.

30. [237]

    The supplementary report purports to respond to Dr Langley’s affidavit dated 21 August 2023, but does more than this. Dr Lonie uses documents from the subpoenaed materials to support an inference that Dr Langley did not have knowledge of the Banks v Goodfellow test for testamentary capacity on or around 19 November 2020 when he assessed Mrs Easton.

31. [238]

    Dr Lonie points to an email sent to Dr Langley on 16 August 2023 by the plaintiff’s former solicitors that, among other things, sets out the Banks v Goodfellow test. She also points to a file note created by the plaintiff’s former solicitor dated 18 August 2023 (which did not seem to be in evidence) recording a phone call with Dr Langley wherein he apparently expressed concerns about being involved in the proceedings as “dementia is not his area of expertise”. Dr Lonie also points out and criticises the lack of any reference to the Banks v Goodfellow test in Dr Langley’s contemporaneous notes of his 19 November 2020 consultation with Mrs Easton. All of these things, according to Dr Lonie, suggest that Dr Langley was unfamiliar with the legal test for testamentary capacity as at November 2020. Dr Lonie then critiques various passages of Dr Langley’s affidavit, pointing out various infelicities in Dr Langley’s understanding of ageing, dementia and capacity.

32. [239]

    Dr Lonie then comments on Ms Nedwich’s affidavit. She is critical of Mr Knox’s conduct during the execution of the 2020 as described by Ms Nedwich.

33. [240]

    Dr Lonie finally reviews Ms Flannery’s affidavit. She finds fault with Ms Flannery’s conclusions relating to Mrs Easton’s capacity by characterising one of the examples of Mrs Easton’s behaviour offered by Ms Flannery, the habitual writing on and keeping of napkins, as a sign of dementia. She also impugns a general lack of evidence for Ms Flannery’s conclusions.

34. [241]

    Despite being provided a copy, Dr Lonie’s supplementary report does not make any comment on Mrs Peacock’s affidavit dated 12 October 2023.

Weighing the evidence about Mrs Easton’s capacity to make the 2020 Will

1. [242]

   Consistent with the test in Banks v Goodfellow and the principles set out above at [10] to [11], the primary concerns in assessing Mrs Easton’s capacity are whether, at the time she executed the will, she was capable of understanding the process of making a will, the extent of the property that was subject to the will and the nature of any claims of potential beneficiaries.

2. [243]

   It is also appropriate to emphasise that the question of whether Mrs Easton had capacity to make the 2020 Will is not a medical question. In Zorbas v Sidiropoulos, Hodgson JA said at [65]:

3. [244]

   His Honour also said at [89]:

4. [245]

   However that may be, in deference to the careful evidence of Dr Lonie who was appropriately and highly qualified to express opinions as to Mrs Easton’s capacity, and because her evidence has been of considerable assistance in reaching my conclusions as to the degree of any cognitive impairment suffered by Mrs Easton at relevant times, I will commence with her evidence. I will return to the evidence of the other witnesses in due course.

5. [246]

   Dr Lonie’s opinions provide a sound basis to conclude that Mrs Easton was suffering from at least some level of cognitive impairment as a result of major neurocognitive disorder due to vascular disease from about the end of 2017. That is, her cognition was at least to some extent impacted by what is sometimes called vascular dementia from about that time. I did not understand the plaintiff to seriously resist this finding.

6. [247]

   Dr Lonie’s evidence also allows me to conclude that, despite any such impairment, she generally retained her memory, particularly her long-term memory, and that she knew what a will was and what it meant to give assets to someone by will.

7. [248]

   The aspects of the Banks v Goodfellow considerations which, in Dr Lonie’s opinion, are most likely to have been impacted by cognitive impairment in this case are Mrs Easton’s ability to understand the nature and value of her estate, her ability to recognise those with a claim on her testamentary bounty, and an ability to weigh up those claims. Of these, Dr Lonie attaches the most significance to Mrs Easton’s ability to weigh up the claims of potential beneficiaries.

8. [249]

   As to Mrs Easton’s understanding of the nature and value of her estate, I have already commented on the evidence to which Dr Lonie referred in this regard. Dr Lonie seems to accept that on 22 September 2020, Mrs Easton was aware that her principal asset was her home at Maloney’s Beach; that she received two pensions; and that she had money in an ANZ account. Dr Lonie’s evidence and that of Mr Knox allows me to find that she did in fact know these things.

9. [250]

   Dr Lonie’s point, rather, is that there is “no evidence to indicate that at and around this time, Ms Easton was aware of the approximate value of her home or the amount of money she held in the ANZ bank account.”

10. [251]

    However, that is of no particular consequence here. Mrs Easton knew what she owned and she knew that, as at 22 September 2020, Mrs Peacock was going to inherit all of it by will when she died. Nothing particularly turns on whether Mrs Easton knew the specific value of what she owned and what Mrs Peacock was to receive: see Windeyer J in Kerr v Bardran at [48]-[50] adopted by Hodgson JA in Zorbas v Sidiropoulous at [64]. I am also confident that as at the time of giving instructions for and executing her 2020 Will, Mrs Easton knew the precise value of what she wanted Mrs Peacock to receive: $0.

11. [252]

    So far as Mrs Easton’s ability to recognise those with a claim on her estate is concerned, Dr Lonie pointed out that she made no mention of the Schefflers either at the 22 September or the 19 November 2020 meeting. This is true, but I am not prepared to place much weight on this consideration. I am confident that she would have known exactly who the Schefflers were at that time. She had purposely disinherited them in May 2019 in circumstances which had given rise to a lot of angst on her own part. It is unlikely that she was incapable of remembering those matters, particularly given my acceptance (and Dr Lonie’s acceptance) that she still knew perfectly well what a will was and that, under her current will, Mrs Peacock was the sole beneficiary. The far more likely fact, which I find, is that she knew exactly who they were but simply did not consider them to have any legitimate claim on her testimonial bounty in September or November 2020.

12. [253]

    Dr Lonie seemed also to be labouring under the assumption that it was Mrs Easton’s overwhelming primary desire in the lead up to the execution of the 2020 Will to have someone manage her finances. In oral evidence Dr Lonie said:

13. [254]

    These matters are not clear to me. As I have already found at [102] and [104], in August and September 2020 Mrs Easton consistently expressed a desire to disinherit Mrs Peacock.

14. [255]

    The final and most significant aspect of Dr Lonie’s opinion concerns Mrs Easton’s ability to weigh up and discriminate between the respective claims of potential beneficiaries. Dr Lonie expanded on her reasoning in respect of this issue during her oral testimony. She explained the difference between a person’s ability to recall matters such as the significance of a will, on the one hand, and their ability to form a reasoned view as to who should inherit under the will, on the other. She said:

15. [256]

    To say that Mrs Easton’s reasons for wanting to disinherit Mrs Peacock do not ‘accord with her reality’ or are ‘irrational’ is to express a view about how, in Dr Lonie’s view, Mrs Easton should rationally have regarded Mrs Peacock at the time. So much seems to be clear from paragraph 129 of her first report and paragraph 32 of her supplementary report, where she explained that Mrs Easton’s cognitive impairment caused her to reach conclusions about Mrs Peacock that differed from the conclusions she would have reached if she did not suffer from any impairment.

16. [257]

    A fairly significant aspect of Dr Lonie’s reasoning on this point was that it was impossible for Mrs Peacock to visit Mrs Easton during COVID lockdowns and that the fact that Mrs Easton was unable to appreciate this fact tends to suggest that she was suffering from cognitive impairment. As she explained, her cognitive impairment “poisoned” her judgment of her relationship with her friend. When asked about whether Mrs Easton’s response was rational, Dr Lonie said that as she understood the facts, it was irrational because it had been “almost rendered impossible” for Mrs Peacock to continue to assist. As I have sought to explain, this was only partially true. Mrs Peacock could not visit, but that was because she refused to be vaccinated, as Mrs Easton knew.

17. [258]

    My difficulty with Dr Lonie’s evidence on this point is that it tends to focus more on the perceived reasonableness or rationality of the deceased’s decision than the question of whether the deceased was capable of the weighing up of the claims that was necessarily involved in making the decision. The rationality of the will can be a factor in determining whether or not the testator had capacity: Croft v Sanders at [127] (White JA). However, Dr Lonie’s analysis of Mrs Easton’s capacity to make the 2020 Will turns heavily on her own perception of whether the Will was fair to Mrs Peacock given the circumstances. Her conclusion that Mrs Easton was incapable of weighing the claims of beneficiaries turns heavily on her conclusion that it was irrational (or at least unreasonable) to disinherit Mrs Peacock, given the circumstances.

18. [259]

    In fairness to Dr Lonie, she did not couch her opinions in terms of the irrationality of the will itself. But her conclusions rested to a significant extent on the disjunction between what Dr Lonie called Mrs Easton’s “reality”, on the one hand, and her perception of it, on the other. Specifically, she emphasised that Mrs Easton’s perception of Mrs Peacock during the latter half of 2020 was irrational, because Mrs Peacock was a good friend and that Mrs Easton failed to see this. In Dr Lonie’s opinion, if Mrs Easton had not been affected by cognitive impairment, she would not have failed to see that it was “impossible” for Mrs Peacock to visit her and to continue to assist her during the COVID lockdowns.

19. [260]

    The test for capacity is, appropriately, a low one. It bears repeating that it is a very grave thing to find that someone lacks testamentary capacity. Such a finding robs a person of their ability to deal with their estate as they wish, which is understandably a matter of serious importance to people, particularly as they age.

20. [261]

    The law does not insist on an ability to weigh claims in a way that is altogether unaffected by cognitive impairment. I am prepared to accept Dr Lonie’s opinion insofar as she expresses the view that Mrs Easton’s capacity to weigh up claims of potential beneficiaries was affected by cognitive impairment; but I cannot accept that Mrs Easton lacked that capacity altogether. The 2020 Will was about as straightforward as could be. It involved disinheriting Mrs Peacock and instead leaving her estate to the second defendant. Mrs Easton knew that that is exactly what the result of the 2020 Will would be. Disinheriting Mrs Peacock was the very thing – the only thing – she wanted to achieve. It may well be that she may not have wanted to disinherit Mrs Peacock if she had not been suffering some level of cognitive impairment and if, as Dr Lonie said, her relationship with Mrs Peacock had not been “poisoned” by her cognitive impairment. But the law does not require that the claims of potential beneficiaries be weighed free of all impairment and irrational thinking. It only requires that she was able to properly think about her property and how she was going to dispose of it. She did think about those things and chose to disinherit Mrs Peacock.

21. [262]

    I note in this context that Mrs Easton was not suffering from any delusion at the time of the September or November meetings with Mr Knox. Mrs Peacock formally submitted that she was, however neither Dr Lonie’s report nor the lay evidence allows me to reach that conclusion.

22. [263]

    In any case, I do not accept the premise of Dr Lonie’s opinion on point of the will’s rationality. In my view, it was not irrational of Mrs Easton to be angry with Mrs Peacock in the circumstances. She entirely depended on Mrs Peacock for companionship and for keeping her finances in order. She was otherwise completely isolated and unable to attend to her finances, which was a very important thing for her. Mrs Easton in fact wanted Mrs Peacock to get a vaccine so that she could continue to visit her and to keep her finances in order. Rightly or wrongly, Mrs Peacock was not prepared to do so. One rational response to that situation was the one exhibited by Mrs Easton.

23. [264]

    Finally, I note that I did not find Dr Lonie’s supplementary report dated 4 December 2023 to be of particular assistance in resolving the issues in dispute. That report was essentially responsive to the plaintiff’s lay evidence.

24. [265]

    Dr Lonie’s evidence therefore does not persuade me that Mrs Easton lacked capacity to make the 2020 Will.

25. [266]

    So far as Mr Knox was concerned, Counsel for Mrs Peacock drew particular attention to the fact that he did not always ask Mrs Easton open questions in his discussions with her. It was pointed out that there were various so-called red flags concerning her mental capacity that should have given him pause before preparing her will. He was taken to a NSW Law Society document entitled “When a Client’s Mental Capacity is in Doubt – a practical guide for solicitors” in this regard.

26. [267]

    The manner in which a solicitor takes instructions can affect the weight to be given to their evidence as to the testator’s capacity. In Gooley v Gooley [2021] NSWSC 56 Sackar J said at [717]-[718]:

27. [268]

    However, the manner in which Mr Knox took instructions was far from deficient. He was aware of all of the matters said to be red flags, such as the fact that Mrs Easton was an elderly person in full-time residential care and that she was, at least at some points, visibly upset during their discussion. But as the NSW Law Society acknowledges in their practical guide, it may nevertheless be appropriate to continue to take instructions in spite of those red flags. It is only in the most extreme case that continuing to take instructions ceases to be an appropriate course. What is necessary is that the solicitor should be aware of any red flags and that he or she reach an informed conclusion as to whether the client has capacity in the particular circumstances.

28. [269]

    That is precisely what Mr Knox did in the case of Mrs Easton, based on his interaction and the content of his discussion with her, as well as his many years of experience in taking instructions to draft wills on behalf of elderly clients, including clients in full-time residential care. He reached that conclusion with full awareness of what the law requires in terms of capacity to make a will.

29. [270]

    In the particular circumstances of this case, not much turns on whether the questions which Mr Knox asked of Mrs Easton were open-ended. That is because I otherwise accept Ms Flannery’s evidence that Mrs Easton had been voicing her desire to make a new will for some time in the immediate lead up to the September meeting with Mr Knox. I find that whoever made the call to Mr Knox’s office to make the appointment for 22 September (probably Ms Giusti) mentioned this fact, which is why the appointment appeared in his calendar in the terms it did, namely “New Will, POA and EG.” The notion of making a new will was not an idea put into Mrs Easton’s head by someone else.

30. [271]

    Furthermore, Mr Knox and Mrs Easton had a fairly wide-ranging discussion about many aspects of the will on 22 September. They discussed who the executor would be, who would inherit, who would not inherit and the reasons why. I am left with no doubt based on Mr Knox’s evidence alone that Mrs Easton positively wanted to make a new will. She was not a passive participant in the discussion.

31. [272]

    Particular criticism was also made of the manner in which the Sydney Opera House Trust was identified as a beneficiary. It is true that this was first suggested by someone other than Mrs Easton, but again I do not think much turns on that fact here. The question of who should inherit arose precisely because Mrs Easton had a strong view about who should not inherit. Mrs Easton was far from indifferent to the question of who should inherit. She had a well-documented love of German classical music (there are many Maranatha progress notes that evidence this fact) and was genuinely happy to adopt the suggestion when it was made. Dr Langely remembers her saying, triumphantly, that she had “solved the problem” of who to leave her assets to, which must have been a reference to the Sydney Opera House Trust.

32. [273]

    Lastly in relation to Mr Knox’s evidence, there is no doubt that there was less discussion at the meeting on 19 November when the 2020 Will was executed. However, it is still clear from the discussion they did have that Mrs Easton well remembered their earlier meeting and that she knew what she was doing when she made the new will.

33. [274]

    So far as Dr Langley’s evidence is concerned, I place significant weight on his contemporaneous conclusion that Mrs Easton had capacity to make a will on 22 September 2020. He was very experienced in making judgments of that kind. He was also very familiar with Mrs Easton as a patient and knew her well. He obviously did not know her closely and he was mistaken as to some things, such as whether she owned her home or had sold it. But he was well placed to form a view about her capacity generally.

34. [275]

    Dr Langley was criticised for not performing any particular “test” to determine Mrs Easton’s capacity on 22 September 2020. However it is not clear to me what particular test would have been administered. I can accept that evidence of some formal testing may have been a reason to place more weight on Dr Langley’s evidence. But in circumstances where I am already satisfied that Dr Langley was in a position to reach an informed conclusion as to Mrs Easton’s capacity and where he in fact did so, the absence of formal testing is not of any particular significance.

35. [276]

    In assessing the weight to be given to Dr Langley’s evidence I note his long history of treating elderly patients in full-time residential care, including patients with cognitive impairments. He was alert to the question of mental capacity to make a will and had turned his mind to that issue, in similar settings, many times over.

36. [277]

    Mrs Easton was well known to Ms Flannery as at late 2020. They had many interactions and they spoke often. Ms Flannery was also cognisant of the test for capacity to make a will. She had no interest in the question of whether Mrs Easton did or did not make a new will, save that as a therapist she naturally wanted Mrs Easton to be less anxious. She had no interest in whether Mrs Easton left her estate to Mrs Peacock or anyone else. Her evidence strongly corroborates Mr Knox’s account (and the account given by Ms Nedwich) of what occurred on 19 November 2020.

37. [278]

    I note also Ms Nedwich gave cogent evidence that corroborated Mr Knox’s account of what occurred on that day.

38. [279]

    Lastly, the evidence of Mrs Peacock does not give me any reason to doubt the foregoing conclusions. Counsel for Mrs Peacock submitted that because she knew Mrs Easton the best, I would generally prefer her evidence to that of any of the other lay witnesses.

39. [280]

    I am unable to accept that submission, at least at the high level of generality at which it was put. I accept that she is able to give reliable – perhaps the most reliable – evidence of Mrs Easton’s character and personality generally, but the primary issue in dispute concerns Mrs Easton’s capacity to make a will in September and November 2020, which was many months after she had fallen out with Mrs Peacock.

40. [281]

    It is also necessary to keep in mind that Mrs Peacock, of all the witnesses, is the one witness who stands to gain from these proceedings. If her account of Mrs Easton’s lack of capacity is accepted, she stands to inherit the whole of her estate.

41. [282]

    It has sometimes been said that, relatively speaking, the least satisfactory evidence is generally that of laypersons who stand to benefit under the will: Gooley v Gooley at [722] (Sackar J); Re Fenwick; Application of J R Fenwick; Re ‘Charles’ (2009) 76 NSWLR 22; [2009] NSWSC 530 at [129] (Palmer J). Whilst I do not approach the evidence of Mrs Peacock or any other witness as though it is to be judged according to some rigid hierarchy, it is nevertheless appropriate to keep in mind that Mrs Peacock stands to benefit under the will.

42. [283]

    A significant aspect of Mrs Peacock’s case is that the real issue facing Mrs Easton during the second half of 2020 was the management of her financial affairs. She contends that Mr Knox was only ever contacted on behalf of Mrs Easton in order to sort out the power of attorney and guardianship issues and that the notion of preparing a will was something that must have been planted in her mind, either by Mr Knox or Ms Flannery, or possibly by other Maranatha staff.

43. [284]

    The fact that she executed a will in the terms she did is, on Mrs Peacock’s case, probative of Mrs Easton’s dwindling mental capacity, as is the fact that she allowed the NSW Trustee & Guardian to be appointed on terms that potentially allowed her house to be sold, which is something she knew Mrs Easton would not have wanted. She says that it was uncharacteristic of Mrs Easton to give all of her assets away “on a whim”. Mrs Peacock “infers[s] from this that Eva was not herself or did not have her normal presence of mind on the occasions when Mr Knox attended upon her.”

44. [285]

    To that end, Mrs Peacock gave an extensive account of her attempts during 2020 to deal with Mrs Easton’s financial affairs in the light of the fact Mrs Easton was no longer willing to communicate with her. She described her meetings and telephone discussions with Maranatha management in which she herself suggested that they arrange for the NSW Trustee & Guardian to be appointed. She also suggested that Maranatha arrange for an assessment of Mrs Easton’s mental capacity because of concerns she held about that matter.

45. [286]

    The difficulty, however, is that even if all of Mrs Peacock’s on this matter is accepted, it does not grapple with the fact that during the period between August 2020 and 19 November 2020, after months of estrangement, Mrs Easton told Ms Flannery on many occasions that she did not want Mrs Peacock to receive anything. Unless I am to disbelieve Ms Flannery on this issue, which I am not at all prepared to do, it is inescapable that the question of disinheriting Mrs Peacock was one that was freely expressed by Mrs Easton and that Mrs Peacock’s theory as to why she executed a new will in late 2020 cannot be accepted. It was not an idea put into her head by some intermeddling Maranatha employee or anyone else. Nor was it the product of miscommunication by persons whose job was otherwise limited to arranging a new power of attorney to deal with financial matters.

46. [287]

    Mrs Peacock was not present at either of the critical times and did not communicate with Mrs Easton in relation to the 2020 Will at all. I accept that the particular incidents she described, such as those occurring in October 2019, are relevant to the conclusion reached by Dr Lonie, but I am not prepared to place decisive weight on those matters in my own assessment of Mrs Easton’s capacity, particularly in the light of the direct evidence of Mrs Easton’s behaviour at the critically relevant times.

47. [288]

    I find that Mrs Easton did have capacity to make the 2020 Will. She was capable of understanding the significance of making a will and what its effect would be. She understood the nature of the assets she was dealing with. She was capable of comprehending and weighing up the moral claims of potential beneficiaries, albeit in a way that was to some extent affected by cognitive decline. She was not suffering from any delusions or disorders that made her “unequal to the task of disposing of [her] property”: Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 at 571-572 per Isaacs J.

48. [289]

    In fact, Mrs Easton did all of those things. She understood the significance of what she was doing and actually did weigh up whether she wanted Mrs Peacock to benefit. She knew what she owned and fully understood that the 2019 Will left everything to Mrs Peacock. As I have sought to explain, she freely and consistently voiced her desire in the period leading up to the execution of the 2020 Will that Mrs Peacock should not receive anything (as to which see paragraphs [96] and [97] above). Her enmity towards Mrs Peacock was explicable by Mrs Peacock’s failure to visit her, a fact borne out by Ms Flannery’s evidence and by clinical notes. Both of these matters – her enmity towards Mrs Peacock and her desire to disinherit her - were also apparent in her discussions with Mr Knox on 22 September (as to which see paragraphs [11] to [115] above).

49. [290]

    I will therefore make an order that probate of the 2020 Will be granted in solemn form to the plaintiff.

Did Mrs Easton have capacity to make the 2019 Will?

1. [291]

   Because I am satisfied that Mrs Easton had capacity to make the 2020 Will, it is not strictly necessary for me to address the question of whether she had capacity to make the 2019 Will. However, it is appropriate to say something about that issue in the event I am wrong about the first issue.

2. [292]

   As I have already noted, neither the plaintiff nor the second defendant took a position as to whether Mrs Easton had capacity to make the 2019 Will. Neither of them has any interest in that will, either as executor or beneficiary. However, that does not mean I would have granted probate in relation to that will as a matter of course. The evidence led in relation to Mrs Easton’s capacity to make the 2020 Will gives rise to a question as to whether Mrs Easton had capacity 18 months earlier in May 2019.

3. [293]

   I note two things about this evidence. The first is that, whatever may have been the correct diagnosis, any cognitive impairment suffered by Mrs Easton was affecting her gradually. Despite Mrs Peacock’s attempts to paint a picture of a sudden downturn in her mental capacity from about October 2019, the evidence from Dr Lonie strongly supports a conclusion that dementia was causing only a gradual decline in her cognitive ability. When she was asked about this in cross-examination, she said that, in her view, Mrs Easton had been suffering from major cognitive impairment since 2017.

4. [294]

   This view is supported by Dr Langley, who had a different view about whether she was suffering from dementia but nonetheless did not see any material change in her personality over the time he knew her. This view is also supported by the Maranatha progress notes for Mrs Easton. Those notes do not support a conclusion that Mrs Easton’s mental capacity suffered a sudden decline between May 2019 and late 2020. To the contrary, they suggest that she continued to suffer from the same kinds of issues reasonably constantly over that period, save that she was clearly anxious and upset during the COVID lockdowns about the fact that Mrs Peacock was not visiting and that her finances were consequently getting out of control.

5. [295]

   Many of the matters to which Mrs Peacock points to show her lack of capacity were things that were evident both before and after May 2019, such as unwillingness to take medications and a general failure to take good care of her personal hygiene. Insofar as Mrs Peacock gives evidence of particular incidents, such as occurred in October 2019, she has tended to do so in somewhat extreme terms that are not borne out by what the staff at Maranatha were witnessing and recording in their notes over the relevant period. I do not for example accept that Mrs Easton had “no comprehension of time”, as Mrs Peacock suggests. I also do not consider that she was “oblivious” to her finances. She may not have had an ability to deal with them, but she was certainly not oblivious to them. They were a serious cause of anxiety for her precisely because she cared about them. I also do not accept that she was prone to “screaming” and “pounding” in the context of being agitated about food service to any greater degree than she had been prior to late 2019. The evidence demonstrates that she was prone to becoming agitated and upset about the Maranatha food service and that she often did so, but this is something that was observed in her right from the time she moved to Maranatha.

6. [296]

   I have generally given very little weight to these matters in reaching my conclusion about Mrs Easton’s capacity to make the 2020 Will. That is because I have given much more weight to the evidence of Mr Knox, Dr Langley and Ms Flannery who were able to give cogent, direct evidence of Mrs Easton’s behaviour at critically important times.

7. [297]

   However, if I am wrong about the weight to be given to evidence of that kind, then the evidence of Dr Lonie would be a strong basis to conclude that Mrs Easton lacked capacity to make a will from much earlier than May 2019.

8. [298]

   It is also important to note that there was almost no direct evidence at all as to the circumstances in which Mrs Easton gave instructions for and then executed the 2019 Will. Ms Park, who took those instructions and then witnessed the 2019 Will, was Mrs Peacock’s solicitor in these proceedings and was available to give evidence but did not do so. She could have given evidence that was directly relevant to the making of the 2019 Will. In the light of the authorities, that evidence would likely have been the most probative evidence on the question of whether Mrs Easton had capacity to make that will. Her evidence may also have been relevant to whether Mrs Easton had capacity in late 2020, just as there was other evidence from 2019 on which Mrs Peacock relied on that issue.

9. [299]

   I suggested to counsel for Mrs Peacock that, in these circumstances, one available inference was that Ms Park’s evidence would not have assisted Mrs Peacock’s case, either in relation to the first issue or the second issue in dispute. Counsel submitted that, should the Court have any concern about Mrs Easton’s capacity to make the 2019 Will, the appropriate course would be for that issue to be determined separately. I was informed 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 was not in issue and where any issue that might be raised by the Court about that matter could be dealt with separately. I was also informed that Ms Park had kept a file note of her consultation with Mrs Easton at the time of making the 2019 Will. Application was made at the conclusion of oral submissions for the question of capacity to make the 2019 Will to be determined as a separate question under rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) in the event that it is necessary to determine it.

10. [300]

    Given my primary conclusion, it is not necessary to deal with that application. But I would not have acceded to it. The fact that no party contended for the conclusion that Mrs Easton lacked capacity to make the 2019 Will would not relieve the first defendant from the need to persuade the Court that Mrs Easton had capacity at that time in the light of the evidence otherwise before the Court. Counsel for Mrs Peacock referred me to the reasons of Powell J in Re Estate of Paul Francis Hodges (deceased); Shorter v Hodges (1988) 14 NSWLR 698 where his Honour said at [14]:

11. [301]

    However, this is not such a case. If I were to accept the whole of Dr Lonie’s evidence on the question of capacity for the purpose of resolving the first issue, as the first defendant contends I should, then that same evidence would contain “evidence to the contrary” which would at least give rise to a doubt about the second issue. The position was explained by Basten JA in Carr v Homersham at [46]-[47] as follows:

12. [302]

    That issue is one that cannot sensibly be separated from the issues that arise in relation to Mrs Easton’s capacity to make the 2020 Will. The evidence on which Mrs Peacock relies to demonstrate Mrs Easton’s lack of capacity in 2020 would inevitably bear on the question of whether she had capacity in 2019, and the opposite is also true, at least potentially. Had application been made for a separate determination of this question at the time the proceedings were listed for hearing, it would almost certainly have been refused for this reason. The application is even less likely to succeed where it is made at the conclusion of a trial that has otherwise been conducted on the footing that all the issues were before the Court, including the question of capacity to make the 2019 Will. I note that the opening submissions made by counsel for Mrs Peacock included submissions that the Court should make orders granting probate in relation to the 2019 Will in accordance with the relief sought in the first cross-claim.

13. [303]

    That being so, and if I had otherwise accepted Dr Lonie’s evidence in full, I would not have been willing to make an order for probate in relation to the 2019 Will. The doubt that would exist in relation to that will in those circumstances would have been of the character described by Basten JA in Carr v Homersham. I would also have inferred that Ms Burke’s evidence would not have assisted Mrs Peacock in dispelling that doubt.

ORDERS

1. [304]

   It is therefore appropriate to make orders granting probate in relation to the 2020 Will and for Mrs Peacock’s cross-claim to be dismissed. I will also make directions about the question of costs.

2. [305]

   The orders will be as follows:

   1. (1)

      Probate of the will dated 19 November 2020 of Eva Marie Easton, who died on 11 September 2021, be granted to Geoffrey Knox in solemn form.

   2. (2)

      The proceedings be referred to the Registrar to complete the grant in accordance with the Probate Rules.

   3. (3)

      The cross-claim be dismissed.

   4. (4)

      Direct the parties to file and serve submissions of no more than three pages on the question of costs on or before 22 August 2024.