Petith v New South Wales Trustee & Guardian; Bone v New South Wales Trustee & Guardian

These two proceedings relate to the estate of the late Gail Margaret Thelen (Gail or the Deceased) who passed away on 27 April 2021 aged 65.

Prior to her death, Gail made a number of wills, relevantly:

In proceedings 2021/00364938 (the Probate Proceedings), there is a dispute as to which of these wills should be admitted to probate. The plaintiff (Mr Petith), Gail’s brother, by a second further amended statement of claim filed 9 December 2022, seeks a declaration that a copy of the 2014 Will is the last will and testament of Gail and an order that probate be granted to the first defendant (NSWTAG) in respect of that will. Declaratory relief is also sought that Gail lacked testamentary capacity at the time of each of the subsequent Wills or did not understand them or that each was procured by way of undue influence.

The second defendant/first cross-claimant in the Probate Proceedings (Mr Bone) was the de facto partner of Gail at the time of her death. By an amended first cross-claim filed on 9 December 2022, he seeks a variety of relief:

It is also contended that if Gail died intestate, Mr Bone, as Gail’s de facto partner, is the sole beneficiary of Gail’s estate.

The first defendant/second cross-claimant in the Probate Proceedings, the NSWTAG, is the substitute executor named in the 2021 Will, the 2019 Will and the 2018 Will. By its further amended second cross-claim filed 22 December 2022, it seeks alternative relief propounding a grant of probate first in relation to the 2021 Will, then the 2019 Will, then the 2018 Will. In opening submissions, however, counsel for the NSWTAG made it clear that the NSWTAG will accept a grant of probate of whichever Will the Court admits to probate. Having regard to the expert reports of Professor Watson, the NSWTAG no longer propounds as its primary case the 2021 Will but rather contends that probate should be granted in respect of the 2019 Will.

Probate is sought to be granted to the NSWTAG as the substitute executor in circumstances where the executor named in each of the Wills, Mr John Lakos, Gail’s solicitor, survived Gail but passed away on 23 December 2021.

In proceedings 2022/00118624 (Provision Proceedings) by his summons filed 26 April 2022, Mr Bone seeks an order pursuant to s 59 of the Succession Act 2006 (NSW) (the Act) for an order for provision out of Gail’s estate. This order is only pressed if the 2021 Will is not admitted to probate.

By orders made on 8 March 2023, the NSWTAG has acted as the Court appointed administrator of the estate.

The proceedings were heard on 9 to 13, 16, 17, 19 and 20 September 2024. Mr A Fernon SC appeared with A Bulley for Mr Petith. Mr C Birtles appeared for the NSWTAG in both proceedings. Dr S Chapple SC appeared with Mr H Morrison for Mr Bone.

For the reasons set out below, a copy of the 2019 Will should be admitted to probate and Mr Bone’s claim for further provision should be dismissed. I will give the parties an opportunity to agree orders and will deal with any remaining dispute, including as to costs, on the papers.

The central issue in these proceedings is which of the Wills should be admitted to probate, which in turn focusses attention on Gail’s cognitive state at the time of making the Wills as well as the role played by Mr Bone in the preparation of the Wills.

In Tobin v Ezekial (2012) 83 NSWLR 757 at [2], Campbell JA observed:

This is one of those cases. The drafter of the Wills, being Gail’s long-standing solicitor, Mr Lakos, died in December 2021. Dr Alexander Wah Seng Lim (Dr Lim), Gail’s longstanding GP, passed away in November 2023.

The evidence also includes a number of conversations alleged to have been had with Gail. The usual principles apply when considering this evidence: see Van Rensburg v Adilinis; Van Rensburg v Raft [2024] NSWSC 1146 at [12].

The principal witness to give evidence as to Gail’s cognitive state between 2015 and 2021 was Mr Bone, her de facto partner. His interest in Gail’s estate increased in each of the 2018 Will, the Codicil, the 2019 Will and the 2021 Will. His evidence, as a person clearly interested in the outcome of the proceedings, must be considered in that light in accordance with well-understood principles.

Given these features, the most reliable guide on the relevant matters is the body of contemporaneous documents, including medical records in relation to Gail’s repeated admissions to hospitals as well as the documents kept by the late Mr Lakos, which document his communications with Mr Bone, either on Mr Bone’s own behalf or purportedly on behalf of Gail. This material is supplemented somewhat by the observations of those who dealt with Gail from time to time.

These reasons are structured as follows:

As at September 2024, the estimated gross distributable value of the estate assets is $19,400,611.37. The principal assets are a property located at Amiens Road, Clontarf, NSW (the Clontarf Property) (estimated value $12,000,000), a property located at Main Beach, Queensland (the Main Beach Property) (estimated value $2,200,000), $3,222,266.52 held in trust by the NSWTAG and $1,918,605 owed to Gail by the Werner Family Trust. The liabilities of the estate total $673,830.10, resulting in a net distributable estate of approximately $18,418,556.33 after legal fees are included.

In addition to these assets, Gail was the sole member of the Gainer Associates Superannuation Fund (the Fund). By a Binding Death Benefit Nomination signed by Gail on 20 April 2021 at the same time as she executed her 2021 Will (the Nomination), Gail had nominated the legal personal representative of her estate as the person entitled to payment of her death benefit.

Because the Nomination was not signed in the presence of two witnesses it is not binding on the trustee of the Fund. The Fund has substantial assets (exceeding $7 million), including a property at Woy Woy valued at $5,290,000.

Mr Bone sought payment of the entirety of the death benefit to him. The NSWTAG and Mr Petith sought payment of the entirety of the death benefit to the NSWTAG (so as to form part of Gail’s residuary estate).

On 26 February 2024, Gainer Associates Pty Ltd, the trustee company of the Fund (the Trustee Company), wrote notifying that it proposed to pay one third of the death benefit to Mr Bone and the remaining two thirds to the NSWTAG. The Trustee Company subsequently sought judicial advice pursuant to s 63 of the Trustee Act 1963 (NSW) and on 6 September 2024, a judge of this Court advised the Trustee Company that it would be justified in paying the death benefit in the proportions notified on 26 February 2024: see In the matter of Gainer Associates Pty Ltd [2024] NSWSC 1138.

Mr Bone indicated in final submissions through his counsel that he did not propose to contest this position and as such he will receive one third of the Fund and the estate will receive two thirds. There was some issue at the hearing as to what taxes and the like would need to be paid and as such what amounts would be received by Mr Bone and the estate. It is not necessary to resolve this issue given the value of the estate without it. The only relevance of the issue potentially concerns Mr Bone’s claim for provision and in this regard, there was no dispute that Mr Bone is likely to receive in the order of at least $2 million from the Fund. Something in the order of about $4 million will be paid to the estate and will form part of the testamentary trust.

The Werner Family Trust has net assets of approximately $2,586,137 and a liability of approximately $1.9 million to the estate. The trust deed for the Werner Family Trust cannot be located. An application for judicial advice is apparently to be brought in relation to how the fund and assets are to be distributed. It is not necessary for the purposes of these proceedings to speculate as to where these assets will end up.

As set out above, there are four wills at issue in the proceedings. They have a similar structure. I set out the key aspects of the Wills from most recent to oldest.

The relevant clauses of the 2021 Will, dated 20 April 2021, may be summarised as follows:

The 2019 Will, dated 13 December 2019, was similar to the 2021 Will, save that:

The 2018 Will may be summarised as follows:

The Codicil introduced a legacy of $1 million to Mr Bone.

The 2014 Will may be summarised as follows:

Looked at from oldest to newest, the Wills maintained the same structure of particular legacies, a testamentary trust with the residuary estate after the testamentary trust comes to an end being left to various charitable institutions. The principal change in the Codicil, the 2019 Will and the 2021 Will were increases in Mr Bone’s legacy – first $1 million, then a one third share of the income of the testamentary trust and finally a portable life estate in relation to the Clontarf Property.

The principal lay witness was Mr Bone. He was extensively cross-examined over nearly three days, mainly by senior counsel for Mr Petith but also by counsel for the NSWTAG in relation to his fallback claim for provision.

Mr Bone struck me as quite a determined witness who, at times, gave his evidence in a combative way. He appeared to me to have a very firm belief as to his entitlement to receive the benefits given to him under the 2021 Will, either under that will or by way of an order for provision or further provision under the Act. He was quite unwilling to compromise in any respect. As he said on several occasions, if Gail “hadn’t gotten cancer and died”, he would have continued to live quite a lavish lifestyle at Gail’s expense, either in the Clontarf Property or in a similar residence.

One example of his unwillingness to compromise concerned alternative residences available to buy or rent in or near his neighbourhood.

The principal area where Mr Bone’s evidence was really questioned in a relevant sense, concerned his alleged discussions with Gail and the extent to which the many communications which he sent to Mr Lakos, particularly in 2021 after Gail’s cancer diagnosis, were in fact discussed with Gail or were Mr Bone’s own thoughts. In some respects, Mr Bone’s oral evidence of his discussions with Gail was at odds with the emails, which causes me to be very cautious about accepting Mr Bone’s oral or affidavit evidence. One example in this regard is the alleged conversation on 12 April 2021. This was shown to be incorrect in several respects and it is also likely that there were earlier conversations which Mr Bone either could not recall or chose not to give evidence about. An associated point is the inconsistent evidence given by Mr Bone concerning when he had decided to stay in Australia.

Against this however, Mr Bone did make a number of concessions which were against his interests. One such example was his admission of drafting emails to Mr Lakos, purportedly written by Gail, on 25 November 2019, 29 November 2019 and 9 December 2019. Another is his ready acceptance that he remained in the hospital room with Gail when she made her 2021 Will.

I approach his evidence with caution appropriate to cases where interested beneficiaries give evidence of conversations with deceased persons: see Eggins v Robinson [2000] NSWCA 61 at [26] per Sheller JA; see also Chant v Curcuruto [2021] NSWSC 751 at [262]ff per Hallen J.

The evidence of the remaining witnesses for Mr Bone, being Ms Renee Emanuel and Ms Julia Hewlett, who were both working at the hospital and witnessed Gail signing her 2021 Will, Ms Quintus, Ms Patricia Pizem, a long term close friend of Gail’s, Ms Jennifer Turner, a long term friend of Gail’s who would look after the Clontarf Property while Gail was away, Bishop Robert Michael McGuckin and Mr Ronnie Ransfield, was quite limited. As was the evidence of the witnesses for Mr Petith, being Mr Petith himself, Anne Petith, Mr Wessel Wessels and Mrs Nicky Wessels, Gail’s neighbours. None were seriously challenged. No credit challenges were advanced in closing submissions.

For the most part, each was giving evidence about what they observed of Gail, either in person or over the telephone, including her behaviour when under the influence of alcohol. Where the principal issue in the case is Gail’s testamentary capacity at various particular points in time, which must involve an assessment of all relevant material at each particular time, including medical evidence of which the witnesses were largely not aware, and must address the matters relevant to testamentary capacity, only limited assistance can be gained from observations made at irregular intervals over many years and which for the most part do not deal with the particular matters relevant to capacity. That said, each of their evidence was of some assistance.

Dr Lim was Gail’s long term GP. He made an affidavit on 19 April 2022 on behalf of Mr Bone. Unfortunately, Dr Lim passed away before the hearing and was thus not available for cross-examination. I admitted his evidence over objection on the basis that I would have regard to the well-known principles applicable in this regard: Fulton v Fulton [2014] NSWSC 619 at [111] per Hallen J.

Dr Lim’s evidence went to his dealings with Gail up to her death and were to the effect that she appeared lucid, especially at the time of their last conversation which occurred over the telephone on 26 March 2021. At no time did Dr Lim administer any tests to determine her cognition as he did not consider that there was any need to do so. Dr Lim was also a visiting medical officer at Manly Waters. His affidavit asserts, in effect, that despite her heavy drinking and refusal “to go to detox”, her various falls, and later her chemotherapy – all of which Dr Lim was cognoscente of at the time – Dr Lim did not have any concerns about Gail’s mental capacity to know and understand what a will is and what her assets were and to identify, evaluate and discriminate between the claims of potential beneficiaries of her estate. Dr Lim opined that her mental capacity was wholly unaffected by any medical condition from which she suffered at the time. This cannot be correct as there were a number of cognitive assessments carried out at Manly Waters which raised concerns. This causes me to have considerable doubts as to the reliability of Dr Lim’s recollection and, having considered the totality of the evidence, I place no weight on his affidavit evidence.

The parties jointly retained Professor John Watson, a highly respected neurologist, to express various opinions on a retrospective basis as to Gail’s testamentary capacity on the dates of the Wills. Professor Watson was then cross-examined by each of the parties. The cross-examination lasted for nearly a day. The whole process of engaging Professor Watson and his cross-examination was highly efficient and of great assistance. The parties are to be commended in this regard. I was greatly assisted by Professor Watson’s evidence. However, a significant limitation on his evidence was the fact that he was not Gail’s treating doctor and his opinions on Gail and her condition were provided on a retrospective basis principally by reference to material provided to him, rather than having had the benefit of seeing and assessing Gail. As Professor Watson admitted, this was a significant limitation. I have ultimately placed principal reliance on the contemporaneous material.

I set out below the factual chronology. Where there was a dispute on the evidence that is relevant to the issues to be decided, I set out my resolution of the dispute. The chronology is necessarily detailed and therefore lengthy. Given the absence of witnesses, principally Mr Lakos, a determination of Gail’s capacity at relevant points in time involves a detailed review of the chronological material.

It begins with a brief overview in relation to Gail. She was born in 1955 and represented Australia in the 1974 Miss World competition, where she was the runner up.

In the mid-1970s, Gail married Ian Gow but they were divorced after two or three years. For a period, she worked as a police officer. Her father was a police officer as was her brother, Mr Petith. She resigned from the police force after a few years.

In the late 1970s, Gail married her second husband, Werner Thelen (Werner). Together they accumulated considerable wealth and appeared to have a rather envious lifestyle, including travelling the world on cruise ships. It does not appear to be dispute that they were each heavy drinkers. Mr Petith gave unchallenged evidence that Gail became a heavy drinker during her marriage to Werner.

At some stage, the evidence does not identify when, Gail worked for Mr Lakos in his law practice. Mr Lakos was admitted to practice in 1971. Mr Lakos provided legal services to Gail and Werner for a number of years and was responsible for the drafting of each of the Wills.

The evidence was reasonably consistent that Gail had been a heavy drinker for many years, dating back to her time in the police force. Ms Alice Quintus, Gail’s sister-in-law, dated it back to as early as 1980, the first time she met Gail, noting that since this time, Gail would drink “a lot of alcohol…drinking in the morning…afternoon and…at night”. Ms Patricia Pizem and Mr Ronnie Ransfield – two other long time friends of Gail’s – gave similar evidence of heavy drinking from the early days.

There is some suggestion that Gail may not have started drinking heavily until the period leading up to 2014 when Werner was sick. Mr George Weissel, a long time friend of Mr Petith said it was not until attending the wedding of Mr Petith’s daughter in 2014 (apparently June 2014) that he observed Gail to be a heavy drinker. Mr Weissel was not cross-examined. There does not appear to be any dispute that Gail was heavily intoxicated at this event and that this was a source of lingering tension between Mr Petith and Gail. Given that Mr Weissel, on his own evidence, would only occasionally see Gail, I do not regard this evidence as of much assistance in terms of when the heavy drinking started. It is against the weight of the evidence that the heavy drinking started much earlier. In any event, I do not need to go too far on this issue because Professor Watson said his opinions would be the same even if the heavy drinking had only commenced in 2014, as opposed to the 1980s.

Werner passed away on 10 September 2014. It was shortly after his death that Gail made the 2014 Will, drafted by Mr Lakos. Werner had been diagnosed with Parkinson’s disease in about 2006 and Gail became his primary carer. It appears that this role took a toll on Gail and may have exacerbated her already heavy drinking.

In November 2014, Gail went on a cruise from Barcelona to Singapore. She had originally planned to go on the cruise with Werner. It was on that cruise where she met Mr Bone, an American citizen. He was working on the cruise providing estate planning and wealth management courses to passengers. Mr Bone was a qualified lawyer who was licensed to practice law in the States of Indiana in 1976 and New Mexico in 2002. He came to specialise in estates, tax, trusts and family wealth planning, including drafting trust instruments and wills. In 1985 he founded a company, Wealth Development Resources LLC in Indiana to promote various specialised financial/estate planning services.

Mr Bone and Gail quickly formed a romantic relationship. Mr Bone extended his time on the cruise, moving into Gail’s cabin to spend the remainder of the cruise with her after he was scheduled to leave the cruise.

After the cruise was over, Gail went to visit Mr Bone in Santa Fe, living with him between 10 March and 14 May 2015. Thereafter the two appeared to be quite inseparable, dividing their time between Sydney, the Gold Coast and Santa Fe, where Mr Bone had his residence, and going on holidays together. They were primarily only separated when it was necessary for one or the other to return home due to visa requirements.

Mr Bone gave evidence, which did not appear to be seriously disputed, that the two spent only 11 months apart between when they first met in late 2014 and when Gail died in April 2021. Their love and affection for each other did not appear to be seriously in dispute.

It would appear that Gail continued to drink quite heavily and on a daily basis throughout their entire relationship.

Given the issues in the proceedings – principally concerning testamentary capacity and alleged undue influence in relation to the 2018 Will, the 2019 Will and the 2021 Will – it is convenient to pick up the chronology at the start of 2018.

During the period from at least January 2018 to April 2021, Gail was in and out of hospital and rehabilitation care. There was considerable documentation in evidence recording her condition at various times throughout this period. I set out below the relevant entries with the dealings surrounding the making of the relevant testamentary documents interspersed.

The records begin on 12 January 2018 when Gail was admitted to the Northern Beaches Hospital (NBH) after falling down. At the time, Mr Bone was living in Australia with Gail at the Clontarf Property. He travelled back to Santa Fe on 21 May 2018. The emergency department assessment records note that Gail reported that she had not had a drink for three days because she had run out of wine at home. Under the heading “ETOH” (a medical abbreviation used to describe anything related to alcohol), the records state:

The hospital records indicate that Gail was given thiamine intravenously (Professor Watson said that this was standard for patients admitted with excess alcohol consumption). The final entry was to the effect that Gail was “Advised to continue drinking in order to avoid withdrawal”. She appears to have followed that advice.

On 13 January 2018, Gail and Mr Bone went on a fishing trip with Mr Petith at Forster for five days and also took a short cruise on the Queen Mary II between Sydney and Brisbane. Mr Bone had foot surgery in March 2018 and Gail cared for him after his discharge from hospital at the Main Beach Property and then at the Clontarf Property.

On 15 June 2018, Gail executed the 2018 Will.

According to Mr Bone, in May 2018, Gail handed him a copy of her 2014 Will and asked him to have a look at it and tell her what he thought. He looked at the 2014 Will, making notes on a copy. They then had a discussion where Gail apparently asked Mr Bone whether she could do something for him in her will. He said she didn’t need to do anything for him and Gail then raised giving $100,000 to Mr Bone’s daughter. Mr Bone said that would be okay if that is what she wanted to do and Gail decided to give Mr Bone’s daughter $100,000.

Arrangements were made for Gail to confer with Mr Lakos on 17 May 2018. A conference took place on 17 May 2018, which was also attended by Mr Bone. Mr Bone could not recall how he participated in that meeting or what was said.

On 19 May 2018 Gail, sent an email to Mr Lakos with the subject “Re: my Will!” providing Mr Lakos “as promised” with further details of the addresses for her niece Chantelle, Tim and Sue Bowen and Alice Quintus. The email was signed off “Big Regards, Gail”.

On 22 May 2018, Mr Lakos emailed Gail, copying Mr Bone, attaching updated drafts of her will, an Advanced Care Directives document and an Appointment of Enduring Guardian document. Mr Bone and Anne Petith were proposed to be her guardians.

By the time Mr Bone had returned, or was en route, to Santa Fe, he was then involved in reviewing the draft documentation that had been circulated. Mr Bone took to emailing Mr Lakos directly with his comments, which he did by email dated 25 May 2018. Mr Bone’s email ended with:

Mr Lakos responded to Gail, copying Mr Bone, in relation to Mr Bone’s comments. Mr Bone then emailed Gail with his comments on what Mr Lakos had said. Gail then spoke to Mr Lakos on 1 June 2018 in relation to the draft documents. There were then further drafts circulated and then discussed between Gail and Mr Bone, with Mr Bone then engaging in further communications with Mr Lakos. Mr Lakos sent a detailed email on 13 June 2018 to Gail and copied Mr Bone, in which he responded to Mr Bone’s queries.

Gail executed the 2018 Will on 15 June 2018. Mr Lakos had arranged for an independent solicitor, Ms Jessica Swain, to attend on the execution of the 2018 Will and associated documents. Mr Lakos had arranged for her attendance, through her then employer, Uther Webster & Evans Solicitors, to provide a certificate of witnessing and advice in relation to the enduring power of attorney and Appointment of Enduring Guardian. This was necessary because Mr Lakos was to be appointed one of her enduring guardians.

Ms Swain witnessed Gail’s execution of the 2018 Will. Ms Swain made two affidavits – the first confirming that she witnessed Gail’s signature on various documents executed on 15 June 2018 and the second setting out her usual practice when witnessing a will, which included making a preliminary assessment of the client’s mental capacity. Ms Swain said that to the best of her recollection, she followed her usual practice on 15 June 2018 and did not have any concern as to the mental capacity of Gail. She gave general evidence that Gail gave clear and coherent responses to questions. Ms Swain was not required for cross-examination.

Gail appointed Mr Lakos, Mr Bone and Anne Petith as her enduring guardians.

Gail went to Santa Fe to join Mr Bone on 22 June 2018 and remained there until 18 September 2018, when she returned home due to her visa requirements. Mr Bone had further foot surgery during this period and Gail looked after him.

Whilst she was away, she received an email from Mr Lakos dated 26 June 2018 confirming what had transpired on 15 June 2018, attaching copies of her new 2018 Will and Advanced Care Directives, together with a copy of his tax invoice for his recent work. On 1 July 2018 Gail, sent an email to Mr Lakos in response, notifying him that she was away in America until September and could not attend to the payment of his invoice until her return. On her return, she arranged for the invoice to be paid and sent an email to Mr Lakos on 21 September 2018 telling him that her cheque was in the mail.

Gail was admitted to the Gold Coast Hospital on 1 December 2018. Mr Bone brought her to the emergency department at 9.55 am following a fall while intoxicated. Her blood alcohol level is recorded as 0.25 at 10.55 am. The records note that Gail “Currently drinks 2 bottles wine daily, often drinks in mornings”.

The emergency department clinical examination notes record that there have been multiple recurrent falls, worsening over the past few months with three falls since yesterday, and that Gail had struck her head twice in the last 24 hours. The entry in the Progress Notes for the evening of 1 December 2018 include:

A CT scan of Gail’s head was performed on 1 December 2018. The conclusion included:

Gail and Mr Bone returned to Sydney from the Gold Coast on 4 December 2018.

On 12 December 2018 Gail, was admitted to NBH after a fall. The ambulance record includes that Mr Bone advised that Gail “drinks 2 bottles of wine/day however [Gail] only admitting to 1 bottle wine/day”. She remained in hospital until 14 December 2018. When questioned about this entry, Mr Bone said that the reference to two bottles was “from time to time” but speaking in general terms it was one to two bottles a day. He later said when she was drinking one to two bottles a day “she could function normally” including driving a motor vehicle. Gail did not stop driving until about mid-2020.

An entry made by Emma Myers, a registered nurse on 13 December 2018 includes “patient is a poor historian”. Mr Bone agreed with this statement at the time. The entry goes on to record that Gail was experiencing alcohol withdrawal symptoms at the time and Professor Watson agreed that one would expect someone experiencing these symptoms to be a poor historian. Gail apparently had two falls in hospital on 13 December 2018.

The Social Work review on 13 December 2018 records Gail acknowledging that she drinks too much but that she did not wish to engage with any rehabilitation services. There are many references to rehabilitation services in other hospital records at the time and later. It was a recurring theme. It was not only health professionals that encouraged Gail to seek long term help. Those closest to her did the same. They all tried to make her go to rehab, but she said no, no, no!

A cerebral MRI was performed on 13 December 2018. Under the heading comment, the report by Dr Tim Mander-Jones stated:

Mr Bone agreed that at the time Gail was having balance issues and when she had too much to drink, her memory was not as good as it should have been.

Professor Watson had access to and reviewed these cerebral MRI scans and the accompanying report of Dr Mander-Jones. Professor Watson gave evidence that the report suggested “some abnormality of flow in the CSF [cerebrospinal fluid] through the particular channels where it has to flow”. Professor Watson agreed with the proposition put to him by senior counsel for Mr Petith that the fact that ventricles were very large was indicative of the potential NPH condition being “well-developed”.

A CT scan of Gail’s brain was also performed on 13 December 2018. The report written by Dr Mark Wilkinson includes:

Professor Watson explained Dr Wilkinson’s discussion of the “periventricular and deep white matter hyperdensity of chronic small vessel ischemic change” by reference to the white matter being “like the circuit board” and the grey matter, the neurons, being the “chips on the circuit board”. Essentially, Professor Watson highlighted that, in the presence of white matter disease, there is “often significant inefficiency in how signals come into the brain, go out of the brain, and are transmitted across the brain to several areas”. In relation to the parenchymal volume loss, Professor Watson interpreted this reference by Dr Wilkinson as an allusion to brain atrophy and NPH.

The Progress Notes record a neurological consultation on 14 December 2018 which includes a reference to “midline cerebellar atrophy” under the heading “MRI reviewed”. The Progress Notes go on to state “gait disturbance more likely form [sic] cerebellar dysfunction frpom [sic] long term ETOH than NPH”.

Gail was again admitted to the emergency department of NBH on 6 February 2019. She was brought in by ambulance called by Mr Bone after she fell on the kitchen floor after slipping from the staircase, hitting her head, with the ambulance report noting a laceration to her left eye. The discharge summary records multiple falls on 6 February 2019 and that Gail had “1-2 bottles of wine last night.” The ambulance electronic record also refers to Gail having had a head strike as well as a history of “brain lesion affecting balance” and that her breath smelt of alcohol. The discharge summary also records on examination there was “Nil nystagmus”. Nystagmus, according to Professor Watson, is a common ophthalmic sign and an early indicator of thiamine deficiency and is one of the characteristics of Wernicke encephalopathy. It also appears that thiamine was given to Gail while in hospital, a matter relied on by Professor Watson.

On 12 February 2019, Mr Bone and Gail met with their GP, Dr Lim at his surgery in Seaforth. Dr Lim told Gail that her life expectancy, if she did not quit drinking was 6 months to 6 years maximum. He also said that:

A further MRI of Gail’s brain was carried out on 18 April 2019. The report prepared by Dr Sunil Kaniyur records a history of “?cerebellar atrophy ?NPH” being a reference to normal pressure hydrocephalus. Two conclusions are stated in the report:

Professor Watson referred to these scans when deposing to the fact that Gail’s mammillary bodies had “significantly atrophied”, which was one of the bases upon which Professor Watson formed the view that Gail was already suffering from Korsakoff syndrome at this time.

On 25 April 2019, Gail and Mr Bone flew to Tahiti and embarked on a 17-day cruise. Mr Bone returned to Santa Fe from Sydney on 21 May 2019.

Prior to departing, on or about 13 April 2019, Mr Bone had a discussion with Mr Lakos on the phone. It is not entirely clear who initiated the call, likely Mr Bone. Mr Lakos could not locate the Appointment of Enduring Guardian document executed the year earlier, which had been sent to Anne Petith for her signature, then returned to Gail, such that she could take the document to the US for Mr Bone to sign. Mr Lakos noted that he never received the executed original document and he asked Mr Bone whether he could locate it. Mr Bone wrote back that he could not locate the document in the Clontarf Property and that Gail believed she had left it in Mr Bone’s house in Santa Fe. On 22 April 2019, Mr Bone requested for at least a partially executed copy to be sent to Gail, such that Mr Bone could execute this copy. A copy of the document, which was partially executed, signed by Gail and Mr Lakos, was sent to Mr Bone on 23 April 2019.

On 17 May 2019, Gail and Mr Bone attended a conference with Mr Lakos, where Gail informed Mr Lakos that she wanted to gift $1 million to Mr Bone in her will. Mr Lakos prepared a draft codicil and sent it to Gail on 20 May 2019. As set out above, Mr Bone returned to Santa Fe on 21 May 2019. On 22 May 2019, Gail emailed Mr Bone raising an issue about Mr Bone’s address as stated in the draft codicil and asking him to liaise with Mr Lakos about his. Mr Bone emailed Gail and Mr Lakos his correct address and a revised draft was emailed on 23 May 2019. Mr Bone was in Santa Fe at the time.

An appointment was made for Gail to attend on Mr Lakos to execute the Codicil on 30 May 2019, which duly occurred. Her signature was witnessed by Mr Lakos and his secretary Ms Pauletta Sghabi.

Ms Sghabi made three affidavits but was not required for cross-examination. In relation to the Codicil, Ms Sghabi said she did not recall the details of her meeting with Gail to witness the Codicil.

Mr Lakos’ file also contained a handwritten file note of Mr Lakos’ dealing with Banks v Goodfellow (1871) LR 5 QB 549 (Banks v Goodfellow). It was agreed between the parties that having regard to the location of this note in Mr Lakos’ file, it was likely prepared at the time of the Codicil.

After executing the Codicil, Gail joined Mr Bone in Santa Fe. They returned to Sydney in early September 2019.

Whilst overseas, Gail was emailing her friend, Ms Jennifer Turner, back in Sydney. For example, on 23 July 2019 she sent an email to Ms Turner dealing with a number of topics, including Mr Bone’s foot and his recovery from surgery, that Mr Bone has recently been issued with his Australian visa and so hopefully would be returning with her to Australia on 3 September 2019, and where they would then be travelling. She asked Ms Turner whether she would be prepared to house sit for Gail again.

She had earlier sent an email to Ms Turner on 3 July 2019 updating Ms Turner on Mr Bone’s health and her own health and, in particular, her “good days and not so good days due to dizziness”.

These emails obviously bear somewhat on Gail’s cognition at the time. The absence of any such communications at the time of the 2021 Will is also quite important. A further small insight into Gail’s cognition at or around this time was given by Mrs Nicky Wessels, Gail’s neighbour at Clontarf, who gave evidence that in the last part of 2019, Gail had told her that she had left $1 million in her will for Mr Bone.

According to Mr Bone, prior to their return to Sydney, he had observed that Gail sometimes had difficulty balancing, whether or not she had been drinking, and occasionally leaned on him for support. After September 2019, Gail began to stumble more often and to have more falls, but she was able to pick herself up and was not injured until her fall on 24 October 2019.

On 24 October 2019, Gail had a fall on the inside garage stairs at the Clontarf Property that left her bleeding from the head and unconscious on the lower landing floor. She was conveyed by ambulance to the Royal North Shore Hospital. On admission her past medical history as recorded included “chronic ETOH” and “no detox or rehab; not interested in ceasing ETOH”. It was recorded that she had approximately one litre of wine on board. Mr Bone said he doubted it was much more than that because he thought it was fairly early in the morning.

The Discharge Summary records that Gail’s recollection of how she fell was different to Mr Bone’s recollection. Mr Bone also reported that Gail had had an earlier fall on 24 October 2019 “from standing height”.

The Discharge Summary also records “normal eye movements, no nystagmus”. In cross-examination, Professor Watson opined that all that could be drawn from this entry was that Gail did not have nystagmus on this occasion.

A CT of Gail’s brain was performed on 24 October 2019. It found:

A further CT of the brain was performed on 25 October 2019. There was no change reported from the CT the day earlier. The report notes “no hydrocephalus”.

Gail remained in hospital until 6 November 2019. A report to Dr Lim by the Neurosurgical Registrar dated 11 November 2019, after the Registrar had seen Gail, records that:

It was put to Professor Watson that the suspected confabulation recorded by the Registrar was more likely to relate to the effects of the fall than the Korsakoff syndrome. Professor Watson did not agree. Persons suffering amnesia as a result of a fall do not necessarily confabulate. Professor Watson regarded the observation as an unusual one, particularly by a neurological registrar, which Professor Watson placed some weight on.

During this period, Mr Bone kept a diary record of how alcohol was affecting Gail. Between 12 September and 30 November 2019, he recorded at least 15 falls, the most serious being the 24 October 2019 fall.

On 16 November 2019, Mr Bone met Dr Lim alone and was apparently told:

Mr Bone then told Gail what Dr Lim had said.

This discussion with Dr Lim, and Mr Bone subsequently telling Gail, appears to have been a catalyst for a discussion between Gail and Mr Bone about her estate plan. The discussion appears to also have been in the context of the cruise that Gail and Mr Bone were planning on going on to Antarctica in late December 2019. In cross-examination, Mr Bone said that it was probably him that raised or “implemented” the conversation.

According to Mr Bone, in his affidavit evidence, Gail raised the topic of how her 2018 Will was going to provide for Mr Bone if she did not survive the cruise. She apparently said that she wanted to leave the Clontarf Property to Mr Bone so that he could keep living in Sydney after Gail died but he said he was not emotionally prepared to make Sydney his permanent home without Gail. Mr Bone also said that at that time he did not have a permanent residence visa for Australia. Mr Bone was challenged on this evidence in cross-examination. I deal with this challenge below. I do not accept Mr Bone’s evidence in this regard about not having formed a view as to staying in Sydney.

Mr Bone said in his affidavit evidence he could not recall in detail the entirety of the discussions he had with Gail or their consequence.

The documents and email communications, including with Mr Lakos, provide a fairly reliable guide as to what occurred.

Gail attended the Neurosurgery Clinic at the Royal North Shore Hospital on 18 November 2019. She had a fall when entering the clinic and “face planted but did not lose consciousness”.

On 22 November 2019, Mr Lakos made a handwritten file note of a telephone attendance on Gail recording that she had decided to alter her 2018 Will in two respects. First, “On GT’s death, 100% interest in Clontarf property to Steve B” and “Ensure brother Paul is excluded – (other than his participation in income from Testamentary Trust)”.

On 25 November 2019, an email was sent from Gail’s email account to Mr Lakos, copying Mr Bone referring to a conversation from the previous week. Mr Bone admitted that he drafted the email after a discussion with Gail.

The email stated that Gail wanted to add a specific bequest of the Clontarf Property to Mr Bone to the specific cash bequest she had already given him. In relation to this aspect of Gail’s instructions, Mr Bone said in cross-examination that this was not something he wanted. He said it was never his intention to get a fee simple in the Clontarf Property, because at this time he was not ready to commit to living in Australia at that time. Mr Bone was challenged on this evidence as to whether he had decided to live in Australia by this time. I do not accept Mr Bone’s evidence for the reasons set out below.

The email also indicated that Gail wanted to leave all of her tangible personal property to Mr Bone, save for her Volvo, which was to go to Mr Ransfield and her jewellery, which was to be divided among her sister-in-law and nieces.

The email concluded:

Mr Lakos sent a draft of the 2019 Will on 27 November 2019 to Gail. On 29 November 2019, another email was sent to Mr Lakos, ostensibly from Gail but again drafted by Mr Bone. The email stated that there were a number of misunderstandings and that Mr Bone and Gail had discussed her intention in more detail and she wished to make them clearer.

Two matters were clarified. First, as regards the division of her personal, “womanly” effects, such as her jewellery and clothing. Second, the personal tangible property that was to be given to Mr Bone. In relation to the latter, the email stated:

The email also asked whether a “no contest” clause could be included in the 2019 Will. This was in the context of an apparent concern that Mr Petith may seek to attack Gail’s 2019 Will.

Mr Lakos’ file contains a copy of an article that had appeared in the December 2019 Law Society Journal entitled “Practical tips for dealing with knowledge and approval of a will” suggesting he was alert to the issue of testamentary capacity or undue influence at the time.

Whilst Mr Bone did not have a permanent residence visa for Australia at the time, he was certainly considering applying for one. On 2 December 2019, Mr Lakos emailed Gail with a referral to an immigration lawyer. In cross-examination, Mr Bone admitted that by November 2019 “we were well on our way” to having an application for him to live in Australia on a permanent basis, completed. There was then the following exchange:

This evidence is flatly inconsistent with Mr Bone’s evidence set out above that at the time of the lead up to the making of the 2019 Will, he had not decided to stay in Sydney and that this was a reason he gave to persuade Gail not to leave him the Clontarf Property. It is also inconsistent with Mr Bone’s other evidence in relation to what occurred in 2021 (which I deal with below) that his circumstances had changed between 2019 and 2021 in that it was not until 2021 that he had decided that he wanted to live permanently in Australia. I do not accept Mr Bone’s evidence in this regard. The contemporaneous emails which I set out below are also flatly inconsistent with Mr Bone’s suggestion that the reason why Gail did not leave the Clontarf Property to him was because he had not decided whether he wanted to stay in Sydney. The emails are more reliable.

Mr Lakos sent a revised draft of the 2019 Will to Gail and Mr Bone on 2 December 2019 together with a covering email responding to the matters raised in the 29 November 2019 email.

Mr Bone then responded directly by email to Mr Lakos dated 7 December 2019, copied to Gail. The email is quite significant at several levels and so I set it out in full:

The stated reason for Gail’s change of mind was not wanting Mr Bone’s daughter to receive any interest in the Clontarf Property after he dies. At various times in his evidence, Mr Bone sought to link the change to a concern about US taxes, but I do not accept this evidence. There is also nothing in the email to support Mr Bone’s later assertion that he was not intending to reside permanently in Australia at this point in time. This is also refuted by other contemporaneous documents. I thus reject Mr Bone’s evidence in this regard.

The concluding paragraph also suggests that, at the time, Mr Bone was concerned about Gail’s ability to comprehend certain matters. Mr Bone said that this last paragraph was referring to all of the matters in the email, not just the matters in the penultimate paragraph. The final paragraph refers to a “solution”. The only solution referred to in the body of the email is giving Mr Bone a one third interest in the income of the testamentary trust to deal with Gail’s concern in not wanting to gift the Clontarf Property outright. Mr Bone’s view was that Gail was not able to understand the notion of a life estate in 2019. He also agreed that Gail’s condition, both mentally and physically had deteriorated greatly between 2019 and 2021. This is a matter of some significance in relation to whether the 2021 Will should be admitted to probate, which I deal with later in these reasons.

Mr Lakos responded later that day. His response included:

By email dated 9 December 2019, Gail asked Mr Lakos to help her make sure that she had signed everything required to make sure all superfund assets will pass into her testamentary trust at her death.

By further email dated 9 December 2019, purportedly from Gail but drafted by Mr Bone, Gail confirmed to Mr Lakos that Mr Bone’s email to Mr Lakos accurately described her concerns about gifting the Clontarf Property to Mr Bone and that she wanted to substitute that proposed gift to him with a one third lifetime income interest in the testamentary trust.

Mr Lakos sent a further draft of the 2019 Will by email to Gail, copying Mr Bone on 10 December 2019. A couple of hours later, Mr Bone responded suggesting a change referable to the lifetime income interest to him. An hour later he sent another email to Mr Lakos in relation to his lifetime income interest.

On 11 December 2019, an email was sent from Gail to Mr Lakos, drafted by Mr Bone, confirming in relation to the lifetime income interests that if one class no longer survives, the remaining classes get half each and so on. It was suggested to Mr Bone that Gail did not understand what was being conveyed by this email. I do not accept this attack. Mr Bone’s evidence was that this role was to suggest changes so that the words were clear and reflected Gail’s intentions. I accept this evidence. There is also Mr Lakos’ file note from 13 December 2019 which supports a finding that Gail understood all of the 2019 Will.

As at this time, Gail and Mr Bone were still going on their cruise. The evidence of Nicky Wessels, Gail’s neighbour suggests that Gail was in a lot of pain at the time and perhaps a little morose. Gail apparently told her that she was planning on going on the cruise and jumping off the back of the boat because she was in so much pain.

Mr Lakos provided a further draft on the afternoon of 12 December 2019. The email concluded:

Mr Lakos met with Gail and Mr Bone on 13 December 2019 to execute her will. Mr Bone was present throughout the conference. Mr Lakos’ handwritten file note begins with a series of entries in relation to Gail’s current medical condition. The note then records:

The file note concludes with a signature and “1 ¼ hr” suggesting this was how long the conference lasted.

Gail’s signature was witnessed by Ms Lia Oliver and Ms Sghabi. Ms Sghabi had no recollection of the meeting. Ms Oliver made an affidavit which simply confirmed her signature. Neither was cross-examined.

Ms Sghabi also gave evidence that after the 2019 Will was executed, she removed the original 2018 Will (including the Codicil) from Mr Lakos’ records, and destroyed them, consistent with Mr Lakos’ usual practice.

On 13 December 2019, Gail’s GP, Dr Lim, diagnosed Gail with “vertigo due to cerebellar atrophy”.

On 21 December 2019, Gail was again admitted to NBH where she remained until 30 December 2019. She presented to the emergency department after a fall down two steps, with a fracture of her “vertebra lumbar”. A lumbar spine CT showed “acute L5 burst fracture with 10mm retropulsed fragment, moderate canal stenosis”. By all accounts, it was a very significant fall. The Discharge Summary recorded “chronic ETOH- 2x bottles of wine a day”.

The Occupational Therapy Discharge Referral recorded that Gail had reported “recent new urinal incontinence over the past 3 months”, which had not been investigated and that she had started to wear “pull-ups at home”.

The report also records that “ETOH use impacts decision making” and Mr Bone and Gail concur “3-4 falls per weeks recently, related to ETOH use”.

On Christmas Day 2019, Gail and Mr Bone became engaged to be married. This was confirmed in a telephone conversation between Ms Pizem and Gail, and also between Ms Quintus and Gail.

Gail was discharged to Manly Waters Private Hospital on 30 December 2019 for rehabilitation. The Manly Waters Private Hospital admission and discharge summary notes “ETOH dependence ?up to 2 bottles/D (declines detox)”. The Progress Notes record several occasions where alcohol was found in the possession of Gail and that it had been “brought into patient from friend or partner”. She was discharged on 20 January 2020.

The Medical Admission History dated 30 December 2019 included in the “Admitting Diagnosis” one reference to “Cerebellar Ataxia Atrophy” and against “Cognition”, recorded “confused at times”. Professor Watson agreed that this tells you nothing about the type of confusion, whether it is minor or major.

While at Manly Waters, a Mini-Cog assessment of Gail was performed on 4 January 2020. Gail scored three out of five. A score of less than three has been validated “for dementia screening”. Professor Watson opined that her ability to recall the three words suggests that Gail’s working memory, rather than executive function, appears to be working all right. He would have expected someone who was affected on the more severe end of Korsakoff syndrome to have difficulty with that task. In relation to the clock drawing aspect, Gail scored zero out of two even though she drew all of the hands in roughly the correct position. The test is a blunt instrument with weaknesses. All that can be gathered from it is that there is some level of cognitive dysfunction and extra assessment/precautions may be needed.

On 11 January 2020, the Progress Notes at 1pm record “short term memory ↓” and at 3.20pm “reminded of need of supervision for gym work @ this stage – short term memory decline may be an issue there”. Professor Watson regarded this as an important observation. Gail had to be reminded to be supervised, which implies memory problems.

Gail was re-admitted to Manly Waters on 30 January 2020 after having had spinal surgery at Royal North Shore Private Hospital on 24 January 2020.

A further Mini-Cog assessment was performed on 31 January 2020 and Gail scored two out of five. The assessment contains a handwritten notation “Reported cognition impaired” with a further reference to “pain meds”, which Professor Watson regarded in cross-examination as an important observation as cognition may be impaired “through pain and pain med[ication]”. He accepted that he should have mentioned this in his reports and his failure to do so was an oversight. Notes of a Rehabilitation Case Conference at Manly Waters on 4 February 2020 refer to “? ↓ cognition”.

Gail was transferred to Royal North Shore Private Hospital via ambulance on or around 5 February 2020, then re-admitted to Manly Waters on 7 February 2020. Again, the Progress Notes record alcohol being found in the presence of Gail and that she had at least one fall while at the hospital. She was discharged to home on 19 February 2020.

A further Mini-Cog assessment was performed on 8 February 2020. Gail scored two out of five. She recalled two of the three words asked and made the same error in the clock drawing.

On 11 February 2020, a different cognitive test, known as a Montreal Cognitive Assessment (MOCA) was performed. Gail scored 20 out of 30. A normal score for someone like Gail is at least 24 to 26 out of 30. Professor Watson agreed that this tells you that there is some kind of cognitive problem going on, but not its extent. Professor Watson also accepted that there may be other reasons why a person scores poorly on such a test not related to cognitive dysfunction.

Gail was admitted to Manly Waters Private on 21, 25 and 27 February and 3, 5, 10, 12 and 17 March 2020 for “management of wound breakdown” after “L4/L5 Decompr”, which involved physiotherapist sessions.

Gail was again admitted to NBH on 3 May 2020 and remained there until 7 May 2020. She presented from home via ambulance after recent falls. The Case Description records that Gail is unable to complete activities of daily living (ADLs) with Mr Bone at home.

The social history recorded includes “2-3 bottles of wine per day”. In the Discharge Summary it is noted that:

Gail’s blood alcohol concentration on admission was 0.354g/100mL, some seven times the legal driving limit.

She was discharged to Manly Waters for rehabilitation.

The Occupational Therapy Discharge Referral Summary prepared by NBH included the following in relation to cognition:

A further MOCA was performed on 3 May 2020 and Gail scored 20 out of 30. The Discharge Summary records “MOCA on admission 20/30 however significant BAC at the time”. Professor Watson admitted that such a significant blood alcohol concentration would have an impact on Gail’s cognition at the time of the test. Professor Watson said that his failure to refer to blood alcohol concentration in his report was an oversight. The Progress Notes in relation to that MOCA include:

Professor Watson placed some reliance on the references to confabulation in the records. He did not agree that you could not place significant weight on this record because of the alcohol in Gail’s system at the time. In his opinion, you could place some significance on the record “because [the reporting doctor] speaks about a mode of memory dysfunction in the form of confabulation.”

Under the heading “Impression”, the Progress Notes state:

Another CT scan of Gail’s head was performed on 3 May 2020. The conclusion includes:

The Progress Notes for 4 May 2020 report a “Lateral nystagmus”. According to Professor Watson in cross-examination, this was an important observation. It is possible that it could be the nystagmus that is associated with the classic triad of Wernicke encephalopathy, where a nystagmus is generally only present in the early stages.

A spinal tap was undertaken whereby 33mL of spinal fluid was drained from Gail’s spine, which is noted as being a “high volume CSF drainage”. There is a dispute in the evidence as to whether this led to any obvious improvements. The Discharge Summary records that Gail’s gait was assessed prior to the procedure and two hours after, with “nil obvious improvements noted”. Mr Bone gave evidence that he observed some improvement. Professor Watson agreed that Mr Bone’s observations of some improvement makes the diagnosis of normal pressure hydrocephalus more likely or stronger.

The Progress Notes in relation to a neurological consultation on 4 May 2020 record a history given of poor nutrition:

Mr Bone is also recorded as saying:

On 5 May 2020, the Progress Notes record that Gail gave a different history for her diet to that which she gave on 4 May 2020, suggesting she has breakfast, “‘not much’” lunch due to having breakfast late, and a hot meal for dinner.

The nutrition diagnosis was in the following terms:

Professor Watson accepted that if Gail was to be accepted as to her diet, it suggests she was not receiving all of her calorie intake from alcohol. He said however, he was circumspect about whether Gail was telling the truth because of her long term alcoholism. He did not give it significant weight.

An Occupational Therapy Initial Assessment dated 7 May 2020 records, under the heading “Previous Function”, “Cognition- ETOH cognitive deficits evident, pt reports poor memory and recall”. Under the heading “Current Function”, the notes record “Cognition- Evident throughout Ax that pts memory and recall was poor, pt reports this is due to ETOH abuse. She reports its [sic] better when she is not drinking, but pt declines to give up on ETOH.”

Gail was transferred to Manly Waters Private Hospital and admitted on 7 May 2020. The Medical Admission History and Discharge Summary states as the Admitting Diagnosis: “Cerebral & Cerebellar Atrophy”. The secondary diagnosis included “Normal Pressure Hydrocephalus” and “Malnutrition due to ETOH abuse”.

On 8 May 2020, a further Mini-Cog assessment was performed at Manly Waters Private Hospital. Gail scored one out of five.

Gail was discharged on 21 May 2020.

On 16 September 2020, Gail, Mr Bone and Ms Turner had lunch at Clonny’s at Clontarf. According to Ms Turner, she observed that Gail needed assistance walking, but mentally she did not appear to be affected. Ms Turner also observed that Gail appeared to be in pain and “frustrated with it”. Regardless, they were able to have a normal conversation.

Gail was re-admitted to NBH on 9 October 2020 and remained there until 13 October 2020. Again, she presented after a fall at home. The ambulance record refers to five falls in the past 24 hours and “Fluid on the brain with neuro interventions and hx alcohol related dementia”. Having regard to the Progress Notes dated 9 October 2020, Mr Bone likely told the ambulance officers of a concern of a buildup of fluid on the brain again. He told hospital staff of the previous spinal tap “with some improvement in symptoms”. No further detail was provided as to the nature of the improvement.

The Progress Notes for 10 October 2020 state “Admitted due to ETOH excess related to Dementia, however, patient not scoring in AWS.” There are also various references to Mr Bone not coping at home in the background of Gail’s alcohol excess. The 11 October 2020 Progress Notes report “Admitted due to ETOH excess related to dementia”, which Professor Watson interpreted as meaning “alcohol-related dementia”, a term which has “fallen out of favour”, but refers to the loss of cognition over at least two domains of cognition.

A report of a Social Worker at NBH dated 12 October 2020 includes a reference to “discussion with MO who advised unclear re Ms Thelen’s capacity for decision making.” The Medical Progress Notes for 12 October 2020 contain the following entries – apparently based on a discussion when both Gail and Mr Bone (wrongly referred to as Simon) were present:

She was discharged to Manly Waters Private on 13 October 2020. The Admission History records frequent falls, five falls in four hours, chronic alcohol abuse and cerebellar degeneration due to alcohol, and normal pressure hydrocephalus. She was discharged home on 26 October 2020.

A Mini-Cog assessment was performed on 13 October 2020 – Gail scored two out of five. She was able to recall two of the words and was able to do the numbers on the clock but not the hands.

Anne Petith gave evidence that during 2020, Gail often rang her on her mobile phone. Her speech was often slurred, indicating she was intoxicated. There were, however, occasions during 2020 when Anne had a conversation with Gail and Gail would ask about Anne’s family and seemed caring. Her speech seemed more normal in these conversations.

The evidence of others, including Wessel Wessels and his wife Nicky, also paints a picture of a significant decline in Gail’s health in 2020 with increased falls.

A satellite factual issue that emerged during the hearing was whether Gail was not invited – or more accurately was uninvited – from attending Christmas in 2020 with Mr Petith and Anne Petith and their family. Some evidence was led on behalf of Mr Bone, including from Ms Tracey Wells, that Gail had told them that she had been uninvited from attending Christmas in 2020 and that this had caused Gail some upset. Anne Petith and Mr Petith both gave evidence to the effect that Gail was not uninvited. Rather, Anne simply told her there was a particular day when one of Anne Petith and Mr Petith’s two daughters was attending and Gail may wish to come on that day.

Senior counsel for Mr Petith sought to rely on the issue as an example of confabulation by Gail whereas Mr Bone said it went to the relationship between Gail and Mr Petith, demonstrating a breakdown between the two.

It is not necessary to resolve this factual issue. At best, it is a single instance of conduct and is not of much significance in the overall scheme.

Ms Tracey Wells, Gail’s long term hairdresser, gave evidence that she last saw Gail on 16 December 2020 when Gail apparently told her that she had spoken to her solicitor and that Mr Bone would be okay. This was apparently in response to a discussion earlier in 2020 – either 10 September or 28 October – where Gail had said to Ms Wells she was worried about her health and wanted to talk to her solicitor to make sure Mr Bone had a roof over his head and was looked after.

The objective evidence – and in particular the absence of any discussions with Mr Lakos during this period – makes it very difficult to accept this evidence which is uncorroborated by anything. I do not accept it as recording a discussion in 2020. If it occurred, it is more likely to have taken place in 2019 and after the making of the 2019 Will. Ms Wells admitted she was not good with dates.

Gail’s next admission to hospital was to NBH on 14 January 2021, where she remained until 20 January 2021. This time the admission was not due to a fall but to symptoms which were ultimately diagnosed as related to ovarian cancer. The hospital records note:

As Professor Watson admitted, the entry does not tell what part of the history was vague or what aspects of the memory were vague. He agreed that he was not able to tell from these types of entries what the extent of the problem was.

Gail reported loss of appetite, recent vomiting and intermittent pain in lower abdomen. Mr Bone agreed that Gail had experienced a loss of appetite but did not agree with the record that Gail has poor memory from long term alcohol excess.

Gail was discharged to Manly Waters Private on 20 January 2021. The Manly Waters admission notes record, quite understandably, that Gail was depressed. She remained at Manly Waters until about mid-February 2021.

A Mini-Cog assessment was performed on 21 January 2021 – Gail scored three out of five. She was able to recall three words but got the clock drawing wrong again. Professor Watson agreed that getting the clock wrong says nothing about whether Gail could call to mind friends or family she would like to benefit from her estate. In relation to Gail’s ability to recall the three words, Professor Watson accepted that if the test was properly administered and in particular there being a delay before the patient is asked to recall the three words – you would think that, based on the test results, Gail may not be at the severest end of the Korsakoff spectrum.

The Rehab Progress Notes for 28 January 2021 record Gail as telling Manly Waters staff that she was going out to see her cancer specialist for a 3pm appointment with her partner. The notes also record that she subsequently returned from the specialist appointment in time for dinner and was “teary and distressed” and then gave a detailed recount of what treatment she was to receive for her cancer. Professor Watson agreed that if this record is accurate it demonstrates a level of short term memory, an ability for Gail to hold concepts in her mind and an ability to relay those concepts. Her level of cognition was up to the task on that day.

Nicky Wessels, Gail’s neighbour at Clontarf, gave evidence that prior to the end of January 2021 she had received emails from Gail, but the last of these was received at the end of January 2021. The prior emails had contained jokes but these stopped at the end of January 2021.

Ms Pizem gave evidence of a number of discussions with Gail in early 2021. They apparently spoke at least weekly. On more than one occasion, including during her final illness in early 2021, Gail said to Ms Pizem that she had left Mr Bone money and also wanted to leave him the house but did not know how to do this because it could cause him complications in America with taxes.

On 29 January 2021, Mr Bone sent an email to Jessie Xu, Gail’s long term financial advisor. In that email, Mr Bone advised Jessie Xu that Gail had been diagnosed with cancer and that she would need to have chemotherapy for about nine weeks.

Gail was readmitted to NBH on 22 February 2021. She presented with pain in her back. She was undergoing chemotherapy at this time. She was again discharged to Manly Waters on 26 February 2021.

A Consultation Request dated 6 March 2021 refers to an MMSE memory test having been performed on Gail in which she scored 16 out of 30 with the medical officer stating they were “suspicious of neurology impairment”. Professor Watson said the result was “pretty bad”, suggestive of moderate dementia.

Mr Ransfield visited Gail at Manly Waters on 6 and 7 March 2021. He says that they had a normal conversation in which Gail actively engaged. No detail was given as to what was discussed.

As Gail’s condition worsened in the first quarter of 2021, Dr Lim apparently told Gail and Mr Bone to get Gail’s affairs in order. Mr Bone says that this caused Gail and him to have a conversation about where Mr Bone was going to live if Gail was to die. He says that by the time of this conversation he had made the commitment to live in Australia and had applied for his partner visa. He admitted in cross-examination that it was his wish that Gail would change her will to look after Mr Bone by enabling him to continue living in the Clontarf Property.

The only such conversation Mr Bone deposed to in his affidavit was on 12 April 2021. In cross-examination he agreed, however, that there must have been a discussion before 8 March 2021 because on that date, he sent an email to Mr Lakos with the subject “Question about possible change to Gail will and trust” where he asked Mr Lakos whether he was “willing to make hospital/house calls to Manly/Clontarf” if Gail remained unable to walk, must be confined to her hospital bed and wants to make additional changes to her will and trust. The email stated that Gail had told Mr Bone and Mr Ransfield that she was thinking about it. Mr Bone asked Mr Lakos to advise regarding the procedures he would require in order to draft and execute amendments if Gail decides to make them. There were various anomalies in Mr Bone’s evidence in relation to this period which I deal with later in the chronology.

Mr Lakos responded later that day to the effect that having regard to his long association with Gail, he would make an exception to his usual no house calls practice. His email went on:

Mr Bone admitted in cross-examination that at this time it was basically his belief that a doctor was the only person who could assess Gail’s medical condition as referred to by Mr Lakos. It is also of some significance that Mr Lakos had not seen Gail since late 2019 and there is no suggestion that he had any detailed knowledge of Gail’s medical history since late 2019, including her fall where she fractured her lumbar spine and her frequent falls and hospital admissions thereafter. His concerns about Gail’s capacity seem to have been driven only by what he had been told about her recent diagnosis and potentially being confined to bed.

Mr Lakos’ file also contains copies of articles from the February 2021 edition of the Law Society Journal in relation to superannuation death benefit claims where there is no Binding Death Benefit Nomination, and testamentary capacity.

On 10 March 2021, Mr Bone responded to Mr Lakos. His email included:

On 11 March 2021, Mr Lakos appears to have had a telephone discussion with Mr Ransfield. It appears Mr Ransfield called Mr Lakos. The discussion included Gail’s desire to be cremated and for Mr Petith to have nothing to do with her funeral. It also included Gail’s desire to transfer the 2008 Toyota Corolla, which Gail had used when at the Gold Coast, to Mr Ransfield and that he – Mr Ransfield – had sent the transfer papers to Mr Bone for Gail to sign.

On 17 March 2021, Mr Bone sent a further email to Mr Lakos and Gail raising issues regarding taxation of income from testamentary trusts and whether Gail should be designating a beneficiary of her superannuation.

Mr Bone admitted in cross-examination that he was trying to understand who would get the benefit of Gail’s superannuation in the event she passed away.

Mr Lakos responded later that day. His email suggested Mr Bone contact Jessie Xu in relation to whether a death benefit nomination had been signed and included:

On 18 March 2021, Mr Bone stated in an email to Mr Lakos:

Mr Bone agreed in cross-examination that one of the matters at the forefront of his mind was for Gail to sign a Binding Death Benefit Nomination if she had not signed one. Determining competency was not his call, it was Mr Lakos’ although he agreed that Mr Lakos had not seen Gail for over a year and therefore had no up-to-date personal contact to observe any deterioration. Mr Lakos observed as much in his email back to Mr Bone on 18 March 2021.

On 22 March 2021, Mr Bone sent an email to Mr Lakos attaching a service agreement which Carers and Companions wanted executed. Mr Bone had arranged for Carers and Companions to provide in-home care for Gail. Mr Bone stated that he had received the agreement and did not see anything out of the ordinary with it. Mr Bone stated that he believed that his appointment as Enduring Guardian gave him authority to sign the document “even if she can’t fully understand it (almost a certainty) and balks.”

It was put to Mr Bone in cross-examination that the reason why Mr Bone thought that Gail would not be able to understand the agreement was because he was concerned with her cognitive abilities. Mr Bone did not agree and said that it was because the agreement was written in “legalese” and he would have done the same thing even if Gail had been alcohol-free her whole life.

He then asserted that Gail was experiencing “chemo fog” and this affected her cognition.

I do not accept this evidence from Mr Bone. The reality likely was that Mr Bone was dealing with all matters on behalf of Gail because she was wholly incapable to managing her affairs at the time. As set out below, Mr Bone admitted in the context of his role very shortly thereafter in ensuring that a Binding Death Benefit Nomination form was executed by Gail that she wasn’t in a position to be dealing with professionals about anything, other than her doctors.

It soon became clear that Gail had not signed a Binding Death Benefit Nomination. On 19 March 2021, Mr Lakos emailed Mr Bone, copying Ms Xu, stating:

Gail was copied on a number of these emails although Mr Bone said that he suspected that Gail was not reading them.

Mr Bone admitted he was the person with the job of ensuring that the Binding Death Benefit Nomination form was obtained and made available for Gail’s signature because she wasn’t in a position to be dealing with professionals about anything, other than her doctors.

On 24 March 2021, Gail had been discharged from Manly Waters and was at home. Mr Bone emailed Mr Lakos, attaching a copy of the Manly Waters Discharge Summary, noting that Gail’s “depression is severe and we can only hope that she’ll start to feel better emotionally after she’s home a little longer”.

A Hammond Care report dated 28 March 2021 of a visit to Gail at the Clontarf Property records that Gail has remained cared for in bed for the last three weeks and she is not able to mobilise. Gail acknowledged previous excess alcohol use and continues to drink wine at home daily, "but states that Steve has restricted her intake to two glasses of wine a day". The report does not note any issues with Gail's cognition at the time.

On 31 March 2021, Mr Bone observed in an email to Mr Lakos “We’re both dealing with depression but are hanging in there”. Mr Bone suggested in cross-examination that Gail’s depression, which he noted in his 24 March 2021 email to Mr Lakos, lifted shortly thereafter. This was obviously not correct.

Mr Wessel Wessels gave evidence that in about March 2021 he went to see Gail with his wife Nicky, as Nicky had said to him that Gail was close to dying. Gail was in bed. She smiled. When she spoke, her speech was very slow. When Mr Wessels asked her how she was, she nodded. He did not recall her responding verbally.

It was at about this time – a month before Gail died – that she and Ms Turner last spoke by phone. Gail was apparently able to converse and she was engaged in their conversation. Based on Ms Turner’s affidavit, the discussion was brief and concerned the need for ramps in the house. In her interactions with Gail, Ms Turner did not observe anything to suggest that Gail was adversely affected by alcohol, despite being aware that Gail was suffering from falls at home and suspected these falls to be a result of Gail’s alcohol consumption.

Mr Lakos wrote a detailed email to Mr Bone, copying Ms Xu dated 1 April 2021, which dealt in part with Mr Lakos’ review of the rules of the super fund. Mr Lakos pointed out that in the absence of any financial dependants, a trustee is generally expected to exercise its discretion in favour of a spouse, and that it appeared to Mr Lakos that Mr Bone satisfied the requirements of “spouse”.

Significantly, the email continued as follows:

Mr Lakos, having been provided with the Discharge Summary, obviously had serious reservations about Gail’s cognitive ability.

Nicky Wessels visited Gail on 5 April 2021. She stayed for only 5 minutes and observed Gail to be tired and pale. They spoke briefly.

Gail was admitted to NBH between 8 and 10 April 2021 for her third chemotherapy treatment. She was also experiencing abdominal discomfort at the time. At the time of her discharge, she was prescribed a number of medications including diazepam, 5mg each night. The medications Gail may have been taking at this time – particularly when she gave instructions for her new will on 15 April 2021 and when she executed this will on 20 April 2021 – have some relevance to her cognitive state on each of those dates.

The next significant event appears to be the discussion between Mr Bone and Gail on or about 12 April 2021. Mr Bone set out a version of the conversation in his affidavit. He was heavily challenged on aspects of that version. This challenge was principally by reference to the emails sent at the time (together with emails sent in 2019) and so it is convenient to set out those 2021 emails before returning to Mr Bone’s affidavit account and the challenge to Mr Bone’s evidence.

Throughout this period, it would appear that Mr Bone was providing regular updates on Gail’s condition via Facebook. These updates provide some contemporaneous evidence of Gail’s condition. One such update was posted on 12 April 2021, where Mr Bone stated:

Mr Bone admitted in cross-examination that Gail’s condition was deteriorating during this period.

Mr Bone’s email of 13 April 2021 to Mr Lakos stated, in part:

On 14 April 2021, Mr Lakos sent an email to Ms Xu, copied to Mr Bone, which was as follows:

On 14 April 2021, Mr Bone sent a lengthy email to Mr Lakos and Ms Xu. Although signed off “Steve and Gail”, it was written by Mr Bone. I set it out in full:

On 15 April 2021, in one of his regular Facebook updates, Mr Bone stated:

Having set out Mr Bone’s email of 14 April 2021 and his Facebook update of 15 April 2021, it is convenient to now consider the evidence in Mr Bone’s affidavit of a conversation which is alleged to have taken place on 12 April 2021. Mr Bone admitted in cross-examination that in the discussion he was trying to convince Gail to leave him a life estate in the Clontarf Property. According to Mr Bone, the conversation took place at Gail’s bedside at the Clontarf Property and was to the following effect:

Mr Bone agreed in cross-examination that there were two fundamental things that were being discussed at the time – namely what was to happen to the super fund in the event of Gail’s death and what was going to happen to the Clontarf Property and Mr Bone’s ability to live there. Mr Bone was apparently to get a life estate and Gail’s superannuation was to be paid to her estate.

It was put to Mr Bone that contrary to his account of the conversation in his affidavit, he did not in fact speak to Gail on 12 April 2021 about the Clontarf Property. They only spoke about the super fund. Had the Clontarf Property been spoken about, Mr Bone would have referred to that fact in his email to Mr Lakos of 13 April 2021, which only refers to the super fund.

I am not sure that much turns on this, as the email the next day from Mr Bone – 14 April 2021 – does make reference to Mr Bone continuing to live in the Clontarf Property and this being unlikely without a revision to Gail’s will and that this was discussed with Gail. I am satisfied that both issues – the Clontarf Property and Gail’s superannuation – were likely discussed on 12 April 2021.

A significant challenge was made to Mr Bone’s contention that his circumstances had changed significantly between the 2019 Will and 1 April 2021. This was a matter referred to in both the 13 April and 14 April emails from Mr Bone to Mr Lakos. Mr Bone repeatedly denied the proposition that at the time of the 2019 Will, he was committed to living in Australia.

Mr Bone’s request for Mr Lakos to refer Mr Bone to a migration lawyer shortly after the execution of the 2019 Will suggests quite strongly that Mr Bone was at least contemplating staying in Australia at the time. As set out above, he admitted as much in at least one answer in cross-examination. I do not accept Mr Bone’s evidence that his circumstances had changed.

Another significant challenge concerned Mr Bone’s contention in his 14 April 2021 email that Gail had previously bequeathed the Clontarf Property to him in her will. This was obviously not correct. As set out above, whilst instructions were provided to Mr Lakos for the Clontarf Property to be left to Mr Bone, that never proceeded.

Of more significance, in my view, was the challenge to the reasons given by Mr Bone in his 14 April 2021 email to Mr Lakos, as apparently discussed with Gail on 12 April 2021, for Gail deciding not to leave the Clontarf Property to Mr Bone. As set out in the email, Mr Bone contended that he previously researched the negative/unreasonable tax consequences for doing this and asked Gail to replace the gift with a one third income interest in the testamentary trust.

The objective and other material suggests this is not correct. The reason why Gail decided not to leave the Clontarf Property to Mr Bone in the 2019 Will was because Mr Bone explained to Gail that leaving it to him outright would mean it would pass under Mr Bone’s will on his death, which was something that Gail did not want. Further, Mr Bone’s Facebook post of 15 April 2021 suggests that it was only in recent times (in the week prior to that Facebook post) that Mr Bone had researched the US tax position, not in 2019.

I am satisfied that Mr Bone’s account of his conversation with Gail contained a number of matters that were not true. These matters were largely repeated in Mr Bone’s long email to Mr Lakos dated 14 April 2021. The issue then is whether this matters in the resolution of the issues in the proceedings. I deal with this below when I deal with the determination of the substantive issues. One immediate observation is that there is a real issue as to whether Gail was actively involved in any of these discussions at the time – in short, whether she paid any attention. A number of contemporaneous documents suggest, perhaps quite understandably, given her condition at the time, that Gail did not have much interest in this.

What is clear from the 14 April 2021 email is that a key or fundamental aspect of what was being proposed to be incorporated into Gail’s estate planning was provision of a life estate in the Clontarf Property to Mr Bone in circumstances where the entirety of the super fund was to be paid to the estate. As Mr Bone recorded in his 14 April 2021 email, if no Binding Death Benefit Nomination was signed, the entirety of the superannuation would be paid to Mr Bone which would make him very wealthy, but this is not what Gail or he intended. The two aspects were part of the one plan or package.

It is also readily apparent that the 14 April 2021 email contains a number of matters that, even on Mr Bone’s version of events, were not discussed with Gail. This is despite the fact that he ended the email “Steve and Gail” even though he drafted it. One example was requesting that the testamentary trust be 20 years, or on Mr Bone’s death, whichever came later, and for Mr Bone to become a co-trustee of the Thelen Trust. Mr Bone’s position appears to have been that if there were matters that he wanted included that he (Mr Bone) had not discussed and agreed with Gail, it was a matter for Mr Lakos to work out “what the heck to do” as he (Mr Bone) was not Gail’s lawyer.

Mr Lakos and Ms Xu conferred with Gail on 15 April 2021 at her Clontarf Property. Mr Lakos’ file note records that the conference lasted two and a half hours. Other evidence suggests that it may have been shorter – one and half hours. Not much turns on this difference, save that it may cast some doubt on the accuracy of Mr Lakos’ file note. His handwritten file note includes “assessed cognition-good”; and

There was no evidence as to what steps Mr Lakos took to verify Gail’s comprehension and to enable him to conclude that Gail’s cognition was clear.

Mr Bone gave evidence that at the time of the conference, Gail was not affected by alcohol and was sober. Mr Bone explained in evidence-in-chief that this was because he did not give her any alcohol and he also observed her two carers and they did not give her any.

Later on 15 April 2021, Mr Lakos sent an email to Mr Bone, copying Gail and Ms Xu. He pointed out that he had obtained instructions from Gail to revise her will. The email requested Ms Xu to check certain matters “with your superannuation specialist”. The email concluded with the observation that Mr Lakos had made an appointment with Gail at her home at 1pm next Tuesday 20 April 2021 to explain to her the revised will and subject to her approval, to arrange her execution.

It appears that it was around this time, or perhaps a little earlier – “about two weeks” prior to Gail’s death – that Gail last spoke to her sister-in-law, Ms Quintus.

According to Ms Quintus, Gail sounded weak, but she was clear. On her affidavit evidence, the discussion was quite short, with Ms Quintus asking Gail how she was doing, to which Gail said “I’m very tired”.

Ms Pizem gave evidence of a conversation with Gail – which must have been on 15 April 2021 – where Gail said to her that “The solicitor’s here. I want to do some last minute changes and tidy up the will” and “A physiotherapist is coming to see me”. A physiotherapist did in fact come later that day, as recorded in the carer’s notes.

On 16 April 2021, Gail again attended NBH emergency department with constipation. The hospital records state that “Gail had not opened her bowels well for 3-4 days with associated bloating and abdominal discomfort.”

On 16 April 2021, Mr Bone sent a lengthy email (around 10 pages when printed) to Mr Lakos, copying Ms Xu. It is apparent from the end of the email that, although it was sent at 10.17 am on 16 April 2021, Mr Bone had finished drafting it at 1.30 am that morning. Conscious of the urgency given Gail’s condition, Mr Bone had immediately considered Mr Lakos’ email of 15 April 2021.

Mr Bone’s email stated, inter alia:

Mr Bone raised a number of questions for Mr Lakos to consider. It is apparent that a number of the matters raised were advancing Mr Bone’s personal position. The questions included a question in relation to the taxation of trusts in Australia. He also questioned why Mr Lakos had not said whether he will be changing the trust term as requested by Mr Bone. In this regard he said “For what reasons, if any, did Gail (or do you) object to this?”

One of the matters raised (number 7) concerned what Mr Lakos had described, in his email of 15 April 2021, as Mr Bone’s “right to occupy” the Clontarf Property as opposed to a “life estate” in the property. Mr Bone said this came as a surprise to him and raised a number of questions and concerns which he set out. The matters raised included that, according to Mr Bone’s research, a life estate could be “portable” which Mr Bone said would be “ideal”. Mr Bone saw a right to occupy as something different (lesser) to a life estate. Mr Bone also wanted to ensure that he was not responsible for payment for upkeep of the Clontarf Property.

Mr Lakos responded to Mr Bone’s email later on 16 April 2021. In relation to the right to occupy, Mr Lakos said that it would be a portable life estate. There does not appear to have been any further discussion between Mr Lakos and Gail prior to this email. Indeed, the only other occasion, on the evidence, when there was any discussion between Mr Lakos and Gail was when he attended NBH on 20 April 2021. Further, Mr Bone admitted that he did not have any further discussions with Gail. It would appear that all of the changes requested by Mr Bone were all made in the final will executed on 20 April 2021.

Gail was readmitted again on 17 April 2021, suffering aspiration pneumonitis having ingested some food into her lungs. She remained at NBH until 26 April 2021 when she was discharged home, where she passed away on 27 April 2021.

In one of his regular Facebook updates on 17 April 2021, Mr Bone referred to Gail having to be rushed to emergency. He said, among many things that Gail’s “condition is very frightening and serious. She was already extremely weak from Chemo #3 and this past week’s serious bout with constipation.”

On 18 April 2021, Mr Bone sent an email to Mr Lakos and Jessie Xu telling them that Gail had been taken to hospital the previous day and was currently in intensive care.

In another Facebook update posted on 18 April 2021, posted at 7.17pm, Mr Bone reported that he had called the hospital that morning and was allowed to speak briefly with Gail. Her voice was very weak and she had little to say other than “I’m done”. He further stated that Gail, “appeared to be 98% “out-of-it” when I first arrived.” She was later woken and aware of where she was and Mr Bone’s presence.

The NBH Progress Notes record a palliative care consultation with Gail on 19 April 2021. The notes record, under the heading “Alcohol dependence”:

An earlier note entered on that day records that:

The nursing assessment Progress Notes shortly thereafter record that Gail was “alert and oriented” and that her “mood fluctuates, from very polite and obeys commands to refusing care and verbally aggressive”.

She was discharged from the Intensive Care Unit to a ward on 19 April 2021. At 3.57 pm on 19 April 2021, the Progress Notes record that Gail was “alert, oriented” and stated “I just want to go to sleep and not wake up”.

The Oncology Progress Notes for 4.18 pm on 19 April 2021 include:

At 2.22 am on 20 April 2021, the Progress Notes record “Patient is alert” and then a little later “Patient is drowsy”. At 9.33 am, on examination Gail, was “Awake and alert” and “Oriented to place”.

The entry in the Progress Notes at 8.28 pm say that care was taken over at 1.30 pm and that Gail was “alert and oriented”.

At 10.20 pm, an entry was created by Almas Wahab (Registrar) which is said to be “Documented in retrospect”. The entry includes:

A report titled “Medical Orders for Life-Sustaining Treatment” dated 20 April 2021 recorded that Gail did not participate in the medical planning discussion due to “delirium, poor baseline cognitive state” and Mr Bone was recorded as the “person responsible” who will have the discussion when able to do so.

Mr Lakos attended NBH on 20 April 2021. His handwritten file note records that two hours and fifteen minutes was spent on the matter, although it is not entirely clear whether all of this time was spent with Gail or whether this may also include some travel time. Prior to attending, Mr Lakos sent a draft of the will by email to Mr Bone and Ms Xu, but Mr Bone says he did not see the email until after Gail signed the 2021 Will. The draft was not in evidence.

It appears that Mr Bone was present throughout the time that Mr Lakos was with Gail.

Mr Lakos’ file note reads as follows:

Gail apparently executed a Binding Death Benefit Nomination, her signature was witnessed by Mr Lakos. I say “apparently” because Mr Bone did not recall it being executed at all.

The 2021 Will was executed on the first and last pages by Gail and two witnesses – Ms Julia Hewlett and Ms Renee Emanuel. Both Ms Hewlett and Ms Emanuel swore affidavits and were briefly cross-examined. They were both workers at the NBH at the time. Understandably, neither had any detailed recollection of precisely what was said in Gail’s room at the time of execution of the 2021 Will, although each had a recollection of witnessing its execution because it was an unusual event for each of them. Ms Emanuel did say in cross-examination that Gail mumbled, just quietly, about the 2021 Will.

Each did say, however, contrary to the evidence of Mr Bone, that the 2021 Will was placed in front of Gail on a table at the time she executed it and she did not have to reach across her body. They also both gave evidence that they were only in Gail’s room for a short period, between two and five minutes.

Mr Bone said that Mr Lakos arrived at NBH at about 1 pm and that Gail was awake and alert and did not appear to be affected by alcohol or any drugs. Mr Bone was not able to recall any of the discussion that occurred other than to say that Mr Lakos spoke about the differences between this 2021 Will and the 2019 Will. Significantly, on Mr Bone’s evidence, this occurred whilst the two witnesses were in the room with Gail. Having regard to the evidence of the witnesses, this was only for no more than five minutes which suggests only a very brief discussion in relation to the new 2021 Will. Mr Bone could not recall whether Mr Lakos handed the will to Gail to read or whether she read it. He also could not recall Gail asking any questions about the will. He could not recall whether Gail was verbally responsive at all to what was being said about the 2021 Will.

Mr Bone also recalled, contrary to the recollection of the witnesses to her signature, that Gail was not very comfortable when she signed the will and had to reach across her body from right to left to sign.

Later that evening, at 5.50 pm, Mr Lakos sent an email to Mr Bone, copied to Ms Xu, which attached a copy of the signed will and the Nomination.

The Progress Notes at 8.53 am on 21 April 2021 includes:

A palliative care review conducted at 11.31 am on 21 April 2021 noted “cognitive impairment long term MMSE 16/30 3.21” and “severe peripheral neuropathy mutlifactorial [sic] including etOH”. A current main issue that was noted in the review was “Delirium on background long term cognitive dysfunction”.

Later that day, it appears to have been decided that there was little more treatment that could be given to Gail. Mr Bone said that he would like to take Gail home.

On 22, 23, 24 and 25 April 2021, the Progress Notes record that Gail was “alert and orientated”. It appears that Gail’s return to her home was delayed by reason of transport issues. She was ultimately transported home in the afternoon of 26 April 2021.

There was in evidence a Complete Medication Record of Inpatient Stay, which identifies the medications that were administered to Gail whilst she was at NBH between 17 and 26 April 2021. This has some relevance to her cognitive state during this period. Of relevance, she was given mirtazapine at 8 pm on each of 19 to 25 April 2021, diazepam at around 10 pm on 17 and 18 April 2021, but diazepam was withheld on 19 and 20 April 2021 because Gail appeared drowsy. She was also given an injection of clonidine on 18 April 2021. Morphine was administered on 23 and 26 April 2021. Professor Watson opined that diazepam is a long-acting drug which can persist, although on the day that Gail executed the 2021 Will, she had not had diazepam for two days, since 9.47 pm 18 April 2021.

Mr Bone’s Facebook update for 22 April 2021 painted a further grim picture, to the effect that Gail was close to death and “past wishing to talk in complete sentences. When she does speak, she was refusing to say much of anything other than, ‘just let me die’.” As Mr Bone said in cross-examination, Gail had pretty much thrown in the towel at that point.

About three days before Gail died, Ms Pizem gave evidence of a phone discussion with Gail in which Gail told her that Bishop Bob McGuckin was trying to make it down to see her and that she was excited and grateful.

Ms Pizem also gave evidence that the last couple of times she spoke to Gail, she observed that Gail was quite breathless but she could manage a short conversation slowly. Gail said that she was tired and sad because she would not be able to continue her relationship with Mr Bone. Gail had apparently told Ms Pizem that she wanted to look after Mr Bone.

On 24 April 2021, Bishop Bob McGuckin visited Gail at NBH. Bishop McGuckin had known the Petith family, including Gail, for many years and had officiated at Gail’s wedding in 1988 and at her husband’s funeral in 2014. Bishop McGuckin has held a number of judicial appointments within the Catholic Church.

Bishop McGuckin drove from Toowoomba to visit Gail on 24 April 2021. Prior to then, he had been speaking with Gail on the telephone on about a monthly basis, including about her cancer diagnosis. He had not seen Gail since 2015.

Bishop McGuckin spent about an hour with Gail on 24 April 2021. He says that she was “conscious, aware and composed” and “clear and lucid”. He spoke with her about a number of matters for 30 to 45 minutes before Mr Bone arrived. He then gave her the last rites.

In oral evidence, Bishop McGuckin also added that when he was talking with Gail on 24 April 2021, her answers were not just “yes/no” but became a little bit of a conversation, and that her voice “seemed quite strong”. Apart from conversing about shared memories, Bishop McGuckin agreed that Gail did not to talk about any things she had partaken in herself.

Professor Watson indicated that he was somewhat surprised by that evidence of what transpired between Bishop McGuckin and Gail on 24 April 2021. It indicates that Gail was doing well in terms of her cognition on that day.

Mr Petith and Anne Petith visited Gail in hospital on 25 April 2021. Anne stayed for about 10 minutes and Mr Petith another 10 to 15 minutes. Gail appeared to be completely unconscious. Nicky Wessels visited Gail at home on 26 April 2021. Gail appeared unconscious.

Gail passed away at home on 27 April 2021. Her Death Certificate noted three causes of death – aspiration pneumonia (10 days), metastatic adenocarcinoma of ovaries (3 months) and severe alcohol abuse (years).

Gail’s funeral took place on 6 May 2021 and Bishop McGuckin officiated.

On 16 August 2021, Mr Bone’s partner visa was granted.

On 13 August 2021, solicitors for Mr Petith wrote to Mr Lakos to the effect that Mr Petith and Anne Petith were “very concerned that Gail did not have testamentary capacity at the time Gail’s will was apparently signed, being 20 April 2021.” Several matters were set out in the letter as providing a basis for the concerns. The letter requested Mr Lakos to respond to six matters in relation to the circumstances surrounding the execution of the will and what steps were taken by Mr Lakos to be satisfied that Gail had testamentary capacity.

Mr Lakos retained Teece Hodgson & Ward to act for him.

A caveat was lodged by Mr Petith and Anne Petith on 26 August 2021.

On 14 October 2021, Teece Hodgson & Ward provided a substantive response to the 13 August 2021 letter. The letter relevantly stated:

Mr Lakos passed away on 23 December 2021.

Mr Petith commenced the Probate Proceedings on 23 December 2021. He sought to propound the 2019 Will. It was not until the filing of a second further amended statement of claim filed in December 2022 that Mr Petith contended that Gail lacked capacity at the time she made the 2019 Will, the Codicil and the 2018 Will.

On 8 March 2022, an interim grant of administration was made to the NSWTAG.

Mr Bone commenced the Provision Proceedings on 26 April 2022.

Mr Bone made two affidavits setting out his financial position in support of his claim for provision/further provision – the first dated 2 June 2022 and then an updating affidavit made 2 September 2024.

As at 2 June 2022, Mr Bone contended his assets totalled $3,452,294 in AUD, made up principally of securities held with Merrill Lynch Brokerage and Retirement Accounts and Fidelity International Retirement and Profit Sharing Accounts (approximately $2.9 million) and a two thirds interest in a condominium located in Santa Fe ($465,300), the other one third interest apparently being owned by Mr Bone’s sister.

Against these assets he had no liabilities.

As at 2 September 2024, his assets totalled $5,173,658 – the securities now totalled approximately $4.4 million and the two thirds interest in the Santa Fe condominium was now estimated to be worth $600,000.

It emerged in the cross-examination of Mr Bone that his sister no longer had a one third interest in the Santa Fe condominium and had not done so for some time. Rather, Mr Bone had transferred a 19% interest to a trust associated with his father, such that Mr Bone now has an 81% interest in the property. On this basis, the estimated value of Mr Bone’s interest should be $729,000.

Adding to these figures, at a minimum, is the one third value of the Fund which Mr Bone will now receive, although it appears that Mr Bone has an outstanding liability for legal fees in relation to the separate proceedings associated with the Fund. This will likely add approximately $2 million to Mr Bone’s financial position.

Mr Bone contends that his monthly expenses total approximately $10,427. All of his income is derived from his US Social Security pension and his US investment portfolio. His current monthly income, net of US tax and converted to AUD, is $6,897.

Against these assets, Mr Bone has liabilities of approximately $2,763, which is comprised of balances owing on his BAC Mastercard and BAC Visa.

Mr Bone also agreed in cross-examination that Gail effectively paid most of living expenses, enabling him to increase his personal wealth.

Mr Petith and Anne Petith, together with their children, Chantelle and Elise, all put on unchallenged evidence as to their financial position and needs. I do not need to summarise that evidence. It suffices to observe that they are each in a substantially worse financial position than Mr Bone. They each receive less by way of provision than Mr Bone under all of Gail’s testamentary instruments, with the exception of the 2014 Will.

Each of the charity beneficiaries filed evidence concerning their respective causes, the work they fund, and their financial restraints.

None of this evidence was challenged. In essence, Mr Bone’s contention was that the estate was large enough to make the order for provision/further provision sought.

As set out above, Professor John Watson AM, a highly respected neurologist, was jointly retained by the parties to provide a retrospective opinion on Gail’s testamentary capacity at the time of the 2018, 2019, and 2021 Wills. Professor Watson provided four reports and was cross-examined for nearly a day. The process was highly efficient and of great assistance to the Court, to the parties’ credit.

In substance, Professor Watson was given all of the available medical records and all of the lay evidence.

In his first report dated 9 November 2022, Professor Watson was asked a number of questions. Before answering each of the questions, Professor Watson made the following general comments:

The first question Professor Watson was asked was, “[w]hat medical condition(s), including any neurological injuries, was Gail suffering from at the time of the giving of instructions on 15 April 2021 and at the time of the making of the 20 April 2021 Will”?

Professor Watson’s response was:

Second, “[w]hat medication was being administered to Gail at or around the time of the giving of instructions on 15 April 2021 and at the time of the making of the 20 April 2021 Will, and please identify any short or long term effects of that medication on cognition”.

Professor Watson identified morphine, midazolam, diazepam, and haloperidol. It is not known what medication Gail took at home. These medications have powerful effects on cognition both in the short and medium term and powerful interaction effects with mutual increase in their toxicity.

Third, “[h]ow, if at all, what each relevant medical condition and/or medication administered to Gail have affected Gail’s understanding and appreciation of the act of making a Will?”.

In Professor Watson’s opinion, the first test for will making – the act of making a will – would probably still have survived for the most part, but perhaps intermittently, in terms of Gail’s ability to understand and appreciate the act of making a will.

Fourth, “[h]ow, if at all, would each relevant medical condition and/or medication administered to Gail have affected Gail’s appreciation of the nature and value, in general terms, of her estate?”.

In Professor Watson’s opinion, any and all of the above medical conditions and/or medications were likely to have affected Gail’s appreciation of the nature and value of her estate. To answer this question in real time, the professional legal or medical assessor would have had to use open questions (and not lead Gail) to ask her to go through the property that she owned etc and there is no evidence that this happened.

Fifth, “[h]ow, if at all, would each relevant medical condition/s and/or medication administered to Gail have affected Gail’s ability to identify the natural objects of her testamentary affection?”.

Professor Watson’s opinion was that more probably than not, any and all medical conditions or medication administered would have affected Gail’s ability in this regard. Professor Watson added that Gail was in such a parlous and vulnerable state that she was likely to have been susceptible to the influence of whoever was with her at the time.

Sixth, “[h]ow, if at all, would each medical condition and/or medication administered to Gail have affected Gail’s ability to comprehend and appreciate the claims which she ought to give effect?”.

Professor Watson’s opinion was, again, that any and all would have affected Gail’s ability in this regard.

Professor Watson also included, as an appendix to his first report, a detailed review of the material provided to him, including documents, lay evidence and radiology.

In his second report dated 28 June 2023, Professor Watson, having been given some further material, was asked to answer the same six questions by reference to the 2019 Will, the 2018 Will and the Codicil.

As an overarching response, he expressed the opinion that the degree and duration of Gail’s drinking was so excessive that, more probably than not, she was affected in her cognition to the same degree as set out in his first report, and probably well before the 2019 Will.

Professor Watson further said:

Save for the second question – dealing with medications – his answers to the other five questions were essentially the same in relation to the earlier wills as they were in relation to the 2021 Will.

In his third report dated 28 August 2023, Professor Watson answered nine further questions asked. These further questions were essentially raising questions in relation to particular opinions expressed in his earlier reports. A critical aspect of these further questions was seeking further detail as to what understanding Professor Watson had, from the materials with which he was briefed, as to the “degree and duration” of Gail’s excessive drinking. Most of these matters were returned to in the cross-examination of Professor Watson and I deal with them below.

Professor Watson’s fourth report, dated 24 November 2023, was provided in response to a joint letter which advised as to the medication Gail was prescribed and asked him to comment on their impact on each of the issues relevant to testamentary capacity for each of the Wills.

Understandably, given his opinions, the principal cross-examination of Professor Watson was by senior counsel for Mr Bone.

I have dealt with above, at the appropriate juncture in the factual chronology, the evidence of Professor Watson in respect of particular documents or aspects of the evidence. I set out below a summary of the principal matters which emerged from the cross-examination of Professor Watson;

Counsel for the NSWTAG asked Professor Watson, at the conclusion of his cross-examination, the following question to which he got the following answer:

Not unsurprisingly, the parties were not aligned as to what I should make of Professor Watson’s evidence. At one end, counsel for Mr Petith essentially embraced Professor Watson’s opinions. At the other end, counsel for Mr Bone contended that Professor Watson’s opinions must be approached with some caution having regard to the fact that he never had the opportunity to see or examine Gail. Allied to this contention was the contention that, in a number of respects, the opinions expressed by Professor Watson were based on assumptions that he made as to the behaviour of long term alcoholics. Lack of nutrition is one example of this.

As set out below, the Court’s task is to reach a view as to whether Gail had capacity at the relevant times based on all of the evidence, both lay and expert. The opinions expressed by Professor Watson are thus relevant but certainly not determinate. Professor Watson acknowledged that he was at a significant disadvantage in not having examined Gail. Professor Watson also acknowledged that none of the material with which he was provided enabled him to reach a definitive view as to the extent of the cognitive problems which Gail was experiencing. Whilst there were many documents – particularly in the period post 2021 – which suggested that Gail had cognitive issues, none of this material demonstrated the extent of those problems and importantly none of them addressed capacity in the context of making a will. To quantify the extent and severity of the problem is tricky and the lay evidence provides guidance.

The real issue in the case was the extent of the cognitive problems being experienced by Gail.

Given this, and as it apparent below, I place primary reliance on the lay evidence and contemporaneous documents, rather than giving primacy to Professor Watson’s opinions.

In a number of respects, the lay evidence and documents were somewhat at odds with Professor Watson’s opinions. For example, there is little in the material to suggest problems with malnutrition or cognition prior to the making of the 2018 Will. The material from 2020 onwards is inconsistent with Gail suffering from severe Korsakoff syndrome and includes frequent references which demonstrate that Gail had, on a number of occasions, a functioning working memory.

None of this is intended as a criticism of Professor Watson. His task is an extremely difficult one with significant limitations, which Professor Watson frankly acknowledged.

Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder. The propounder must prove that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution: see Veall v Veall (2015) 46 VR 123 at [166] per Santamaria JA (Beach and Kyrou JJA agreeing). The two are linked and such evidence will be relevant in both issues: see Mekhail v Hana [2019] NSWCA 197 (Mekhail) at [136] per Leeming JA.

In the context of capacity, in Lim v Lim [2023] NSWCA 84 (Lim v Lim) at [7]-[9], Kirk JA stated in a passage recently approved by the Court of Appeal in Anderson v Yongpairojwong [2024] NSWCA 220 (Anderson v Yongpairojwong):

In the context of knowledge and approval, Kirk JA stated in Lim v Lim at [10]:

At [11] – [15] in Lim v Lim, Kirk JA made the following observations:

Of relevance in the present case are the remarks of Leeming JA in Mekhail at [131]-[132]:

The present case also involves the not uncommon situation of real time observational evidence and also past medical evidence – this time from a world-renowned neurologist Professor Watson. The present case is somewhat complicated by the fact that two of the key observers – Mr Lakos and to a lesser extent Dr Lim – are now deceased.

In this regard, I bear in mind what was said by Young JA in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas) at [89]:

Hodgson JA in Zorbas said at [65] that the criteria in Banks v Goodfellow are matters for “commonsense judicial judgment on the basis of the whole of the evidence”.

To similar affect, Vickery J observed in Nicholson v Knaggs [2009] VSC 64 at [41] in a passage recently approved by Bell CJ in Anderson v Yongpairojwong at [140]:

In the present case, an aspect of the evidence is the not uncommon situation that Gail was subject, at various points in time, to various cognitive tests, including various Mini-Cog assessments and various MOCAs. I bear in mind when considering this material, as Professor Watson admitted, that such tests are essentially a screening tool for cognitive impairment and provide some basis for assessing memory recall: see, for example Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [141] – [145] per Meek J. They do not, however, in and of themselves, establish the nature and extent of any cognition problems.

In the context of the 2021 Will, an issue was also raised as to whether the critical date for the assessment of testamentary capacity was 20 April 2021, the date on which the Will was executed, or 15 April 2021, when Mr Lakos saw Gail at home to take instructions. In this regard, Mr Bone contended that the relevant date was 15 April 2021. Reliance was placed on the following well-known statement of Sir James Hannen P in Parker v Felgate (1883) 8 PD 171 at 173-174:

The principle is obviously well understood, having been applied on various occasions: see Briton v Kipritidis [2015] NSWSC 1499 at [37]. A key aspect of the principle, relevant in the present case, is that there have been no substantive changes to the will between the taking of instructions and the execution of the will.

I now consider which of the Wills should be admitted to probate, beginning with the 2021 Will.

As set out above, the onus is on Mr Bone to prove that Gail had testamentary capacity and knew and approved the contents of the will at the time of its execution. For the reasons set out below, and being acutely conscious that to invalidate a formally valid will is a grave matter, I am not satisfied that Mr Bone has discharged his onus on either count. I am not affirmatively satisfied that Gail had capacity at the time of making the 2021 Will or knew and approved the contents of that will.

In considering the issue of testamentary capacity, it is useful to bear in mind what has been said in the cases about how a solicitor should go about ensuring that a testator has testamentary capacity.

Counsel for the NSWTAG referred to two cases in this regard. First, in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 (Petrovski v Nasev) at [89], Hallen AsJ (as his Honour then was) referred to what Santow J had earlier said in Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported) as follows:

Second, in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J said at [106]-[107]:

It is immediately apparent that what Mr Lakos did in 2021 left a lot to be desired:

The deficiencies in what Mr Lakos did, and his unavailability to provide any further evidence, make it difficult, if not impossible, for me to have any confidence to conclude that he was satisfied that Gail had capacity at the time of making her 2021 Will. There is little other evidence to suggest that Gail had capacity and much to cast doubt on whether she did.

Counsel for Mr Bone placed principal reliance on the evidence of Gail’s friends and family from 2020 to April 2021, contending that this evidence demonstrated that Gail was able to engage coherently and rationally, ask sensible and genuine questions and to recall and communicate information. In considering this evidence, it is important to bear in mind that the relevant time that Gail had to have capacity was between 15 and 20 April 2021.

Quite a lot of the evidence relied on by Mr Bone concerned interactions with Gail in 2020. I find this material to be of quite limited relevance in circumstances where Gail appears to have been in significant decline in 2020 – evidenced by the increase in the number of falls.

More importantly, Gail was diagnosed with ovarian cancer in late January 2021 and this appears to have had a profound impact on her mood, general outlook on life and willingness to actively engage in matters such as her estate planning.

There are frequent references to Gail being depressed after the diagnosis. There also do not appear to be any written communications from Gail (as opposed to the emails drafted by Mr Bone purportedly on behalf of Gail) during the first quarter of 2021 to suggest that she was still actively engaged in life. This appears to be a change from December 2019 and earlier.

The evidence of interactions with Gail in 2021 came from (apart from Mr Bone) Wessel and Nicky Wessels, Jennifer Turner, Alice Quintus, Patricia Pizem and Ronnie Ransfield.

The closest in time to mid-April 2021 is the evidence of Nicky Wessels (who visited Gail on 5 April 2021), Alice Quintus (who last spoke to Gail about two weeks before she died) and Patricia Pizem (who spoke to Gail on 15 April 2021).

The evidence of all but Patricia Pizem is quite general about Gail engaging in conversations. It does not go too far on the question of capacity. Patricia Pizem’s evidence is more relevant and establishes that on 15 April 2021, Gail was aware that her solicitor was at her house to do some last minute changes and tidy up the will. In and of itself, this evidence does not, however, establish capacity on 15 April 2021. There is little by way of objective evidence to establish capacity on 15 April 2021. Mr Lakos’ file note of the conference on 15 April 2021 does not assist on capacity for the reasons set out above.

Mr Bone’s evidence also does not take matters too far on the question of capacity on 15 April 2021. He was not present in the room with Mr Lakos, Jessie Xu and Gail.

Mr Lakos recognised in early March 2021 that there were likely to be issues with Gail’s cognition in light of her recent medical issues. As he became more aware of those issues, he appears to have become even more aware of an issue as to her capacity, even observing on one occasion that it is unlikely that any Binding Death Benefit Nomination would be effective if executed. Mr Lakos was only aware of Gail’s recent medical issues, not her immediate history of an increasing recurrence of falls, poor cognition test results and the like.

The evidence in relation to capacity on 20 April 2021 is even less satisfactory. Mr Lakos’ file note suggests that he did not test for capacity on 20 April 2021. Whilst it appears that Mr Lakos and Mr Bone were with Gail for at least an hour and a half (arriving at 1pm, with the will being executed at about 2.30pm) there is no probative evidence about what was discussed during that period. There is nothing for the Court to be satisfied that Gail had capacity. Mr Bone’s evidence was that the discussion in relation to the will took place in the presence of the witnesses, yet they were only in Gail’s room for a few minutes. Mr Bone had no recollection as to what was said. There is also no evidence to suggest that Gail was engaged in the process in the sense of asking questions or responding verbally to questions. The highest the evidence really goes is Gail perhaps nodding or mumbling a few words. Precisely what she was “responding” to by mumbling or nodding is not clear.

The hospital records during this period also cast considerable doubt on Gail’s capacity. The clear evidence is that Gail was in a very bad way physically on 20 April 2021, having experienced significant problems in the preceding days since she was rushed to hospital on 17 April 2021. Mr Bone’s Facebook updates paint a very grim picture of Gail’s heath during this period. This evidence falls well short of satisfying me that Gail had capacity on 20 April 2021.

Measured against what Professor Watson said should be done to establish capacity, which is consistent with the statement by Kunc J in Ryan v Dalton that I have extracted above, there is simply no probative evidence to establish that Gail had capacity on 15 April 2021 and, perhaps more importantly, on 20 April 2021.

I do not accept the contention – based on Parker v Felgate – that the relevant date for assessing capacity is 15 April 2021. Counsel for Mr Bone accepted that the principle would only have application if I was satisfied that there was no substantive change between the instructions provided by Gail on 15 April 2021 and the will as executed on 20 April 2021. This is clearly not the case. Mr Bone raised a number of matters – by email post 15 April 2021 in his own interest resulting in a number of changes, particularly in relation to the life estate.

Gail needed to have capacity in order to understand these changes. This is also against a backdrop of Mr Bone admitting that Gail did not understand the concept of a life estate at the time of the 2019 Will. Her health generally, and more importantly her cognition, significantly deteriorated after the 2019 Will was made. She would not have understood what a life estate was even if someone explained it to her.

I am not satisfied that Gail had capacity on either 15 or 20 April 2021.

I turn now to consider whether, assuming (contrary to what I have just found), that Gail had testamentary capacity at the time that she made her 2021 Will, whether I am satisfied that Gail knew and approved of the contents of the 2021 Will. For the following reasons I am not so satisfied.

Given my assumption is that Gail had testamentary capacity, and there was no issue that the 2021 Will was validly executed, there is a presumption of knowledge and approval of the contents of the will at the time of execution, which presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator: see Tobin v Ezekial at [46] per Meagher JA.

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances, it is said that such a person has the onus of showing the righteousness of the transaction: see Tobin v Ezekial at [47].

In Petrovski v Nasev at [259] Hallen As J stated:

The relevant circumstances are as follows:

Having regard to these circumstances, I am far from satisfied that Gail knew and understood the terms of the 2021 Will. This is a conclusion that I reach having regard to all of the evidence admitted at the hearing. One does not need to linger on questions of onus: cf Dedakis v Deligiannis; The Estate of Rebecca Deligiannis [2024] NSWSC 1018 at [10] – [15] per Leeming JA; Anderson v Yongpairojwong at [184] per Leeming JA.

I have set out above the chronology of the dealings leading up to the making of the 2019 Will.

The relevant starting point is Gail conferring by telephone with Mr Lakos on 22 November 2019. It would appear that Gail conferred with Mr Lakos alone, i.e. without Mr Bone being present at the time of the call. She instructed Mr Lakos relevantly of two changes she wanted to make to her will:

There is some suggestion in the evidence that Gail may have previously raised the idea of ensuring that Mr Bone has a roof over his head if Gail was to die with her hairdresser, Tracey Wells. In her affidavit, Ms Wells suggested that the conversation occurred in 2020 but accepted in cross-examination that it could have taken place in 2019. Given the uncertainty as to dates and the fact that it only appears to have been one conversation, I do not place too much reliance on this point. Of more relevance is that Gail likely spoke to Mr Lakos alone and gave him her instructions.

This starting point in the instructions is significant. It provides some clear evidence of Gail’s capacity at the time, demonstrating her ability to identify a substantial asset of her estate and weigh the interests of her de facto partner. The instructions provided in relation to Mr Petith obviously involve Gail appreciating an important aspect of her existing will – namely the testamentary trust and weighing up whether she wanted him to benefit any more, which she did not. The communication also provides evidence of Gail’s capacity to understand the nature of the act of seeking a will and its effects.

Thereafter, there are a series of emails, involving Mr Lakos and either or both of Gail and Mr Bone. It was not in dispute that the emails which were purportedly sent by Gail were in fact drafted by Mr Bone in consultation with Gail. At least one of the emails – dated 29 November 2019 – expressly states that Mr Bone helped Gail write the email.

Mr Bone communicated directly with Mr Lakos (copying Gail) on 7 December 2019, advising Mr Lakos that Gail had asked Mr Bone about the ramifications of gifting the Clontarf Property to Mr Bone “outright and absolutely”. Once it was explained to Gail that this meant that the property would pass under Mr Bone’s will, she indicated that she did not want this to occur. The email from Mr Bone went on to record that the only solution “acceptable to both of us”, ie both Gail and Mr Bone, instead of the outright gift was a one third interest in the income of the testamentary trust.

I accept the contention advanced by Mr Bone that this email faithfully relayed Gail’s instructions as it was against Mr Bone’s interests. The position also has a ring of truth about it from Gail’s perspective – not wanting a significant asset to pass pursuant to Mr Bone’s will but instead she was happy to provide Mr Bone with income during his lifetime but no substantial asset to pass under Mr Bone’s will.

I am not overly troubled, in the circumstances, by Mr Bone’s concluding words:

I do not read the first sentence as suggesting some cognitive issues at the time. It simply suggests that Gail was not in a position to consider any more legally complicated solutions than giving Mr Bone a one third share of the income from the testamentary trust instead of an outright gift of the Clontarf Property. Testamentary capacity does not involve the testator being able to consider all possibilities for dealing with their estate, no matter how complex.

Mr Lakos responded to Mr Bone to the effect that he would explain to Gail in detail the meaning of each provision and will “verify that she fully comprehends all provisions and that these accurately reflect her wishes”.

Mr Lakos’ file contained an article from the December 2019 Law Society Journal entitled “Practical tips for dealing with knowledge and approval of a will”, suggesting he was at least conscious of this issue at the time.

The confirmatory email from Gail alluded to in Mr Bone’s email to Mr Lakos dated 7 December 2019 was sent, purportedly from Gail, on 9 December 2019, although this was drafted with the assistance of Mr Bone. I do not accept that Mr Bone was acting on some frolic of his own in drafting and sending this email and am satisfied that Gail was in fact consulted and approved the email. The email does not only deal with new gifts to Mr Bone, it also clarifies the gifts to other beneficiaries.

Gail met with Mr Lakos on 13 December 2019 to execute the will. According to Mr Lakos’ file note Mr Bone was also present during the conference at which the will was executed. Whilst this was far from ideal, it does not, in and of itself, bear on capacity or knowledge and approval.

According to Mr Lakos’ file note, the conference lasted for one and a quarter hours. It likely took place at Mr Lakos’ office. The note records that Gail has read the latest version of the will “in detail”. In contrast with what occurred in April 2021, there is no suggestion in the contemporaneous material including her dealings with others, that in December 2019, Gail’s health was such that she was not able to read the will. Having read it in detail, Gail indicated that she fully understood it. It then appears that Mr Lakos separately read to Gail each of the clauses and she (Gail) fully comprehended and approved the provisions. This is the very thing that Mr Lakos told Mr Bone that he would do in his email of 7 December 2019.

There is considerable lay evidence to suggest that, at this time, Gail was continuing to converse with friends and family in a way that suggested she did not have any significant cognitive issues. All of the witnesses called by Mr Bone spoke with the one voice on this. The evidence paints a picture of Gail declining in 2020 after her bad fall in late December 2019.

Gail’s brother, Mr Petith, spoke to Gail regularly and saw her on about five or six occasions after she met Mr Bone. He did not raise any issues with Gail’s capacity in relation to this will (and the earlier wills) until December 2022. His initial concern was only in relation to Gail’s capacity at the time of making the 2021 Will. Mr Petith did not give evidence of any significant events prior to the 2019 Will that would raise significant questions in relation to Gail’s cognition. His first affidavit made 23 December 2021 deals only with Gail’s health and cognition at the time of making the 2021 Will. At the time he made this affidavit, he also filed a summons seeking a declaration that the 2021 Will is void and that the 2019 Will is Gail’s last will. Anne Petith also gave evidence of speaking to Gail in 2020 during which Gail asked after her nieces. This all goes to paint a picture of Gail having capacity at the time of the making of the 2019 Will.

The opinions expressed by Professor Wason do not lead me to fail to be satisfied that Gail had capacity. As set out above, a number of Professor Watson’s opinions on Gail’s capacity at this time were based on Professor Watson’s assumptions as to the effect of long term alcohol abuse based on his many years’ experience. They were, in effect, his well-educated guesses. There was, however, little in the actual evidence concerning Gail to support those opinions. The evidence of Gail’s dealings suggest quite strongly that she did have capacity.

I am satisfied that Gail had capacity at the time of making the 2019 Will. The evidence demonstrates that she had the capacity to understand the nature of the act of making a will and its effects, to understand the extent of the property the subject of her will and to comprehend moral claims of potential beneficiaries.

I turn now to consider the issue of knowledge and approval. Being satisfied of capacity and there being no question about due execution, a presumption of knowledge and approval arises. The involvement of Mr Bone in the dealings with Mr Lakos and his presence at the conference on 13 December 2019 when the will was signed, against the background of him being the beneficiary of the amendments made in the will, however, displaces the presumption. Mr Bone must therefore prove affirmatively that Gail knew and approved of the contents of the 2019 Will.

I am affirmatively satisfied that Gail knew and approved of the contents. Having regard to Mr Lakos’ file note of the conference on 13 December 2019, I am satisfied that Gail read over the will in detail. This is the most satisfactory evidence: see Tobin v Ezekial at [47] per Meagher JA.

Counsel for Mr Petith contended that the Court could not be satisfied that Gail knew and approved the contents of the 2019 Will. Reliance was placed on the fact that Mr Bone was the instigator of the will, having spoken to Dr Lim without Gail and that he was, as emerged in cross-examination, then the author of all the written instructions to Mr Lakos and was also present at the conference on 13 December 2019.

I deal with each of these matters in turn.

First, as regards the discussion with Dr Lim, it is clear that Dr Lim was also Mr Bone’s general practitioner and there is nothing in the evidence to suggest that Mr Bone deliberately met with Dr Lim to discuss Gail’s condition and that this was somehow part of a plan on Mr Bone’s part. There was no secret as to Gail’s declining health. Dr Lim had previously told both Gail and Mr Bone.

Second, I do not regard the fact that Mr Bone did not volunteer in evidence-in-chief that he was the author of the email communications in Gail’s name with Mr Lakos as telling against Gail knowing and approving the contents of the 2019 Will. Mr Bone readily admitted his involvement in cross-examination. One of Gail’s early emails clearly states that Mr Bone had helped Gail write the email. Mr Bone was also openly writing to Mr Lakos in his own name. Mr Lakos’ response on 7 December 2019 to Mr Bone was that he (Mr Lakos) would verify that Gail fully comprehends the provisions and that they accurately reflect her wishes. His file note records that he did this.

Given these matters, it cannot seriously be contended that Mr Lakos was somehow misled into thinking that emails were drafted by Gail and as such did not take steps to be satisfied that Gail knew and approved the contents of the 2019 Will.

Third, Mr Bone’s attendance at the 13 December 2019 conference should not have occurred but in the circumstances, particularly the clear entries in the 13 December 2019 file note of Mr Lakos, which (by contrast with April 2021) are not called into doubt by Gail’s physical condition and circumstances.

I am satisfied that Gail knew and approved of the contents of the 2019 Will.

In light of my conclusion that Gail had testamentary capacity and knew and approved of the contents of the 2019 Will, it is strictly unnecessary for me to consider any of the earlier testamentary dispositions – the Codicil and the 2018 Will. Against the possibility that I am wrong in relation to the 2019 Will, I deal with each of these two documents.

Putting to one side the medical opinion of Professor Watson, there is little to suggest that Gail did not have capacity at the time of the making of the Codicil on 30 May 2019. There is a generalised comment of Mr Bone, recorded in the medical records on 1 December 2018, that Gail’s short term memory was “not the best”.

I have set out above the circumstances leading to the execution of the Codicil.

Gail and Mr Bone met with Mr Lakos on 17 May 2019. Mr Lakos was instructed that Gail wished to amend her will to include a legacy to Mr Bone of $1 million.

Mr Lakos confirmed those instructions by email to Gail on 20 May 2019, providing a draft codicil to Gail.

Gail was obviously personally interested to review the draft codicil because she emailed Mr Lakos on 22 May 2019 stating that she could not download the codicil and she asked him to send it in another form. Mr Lakos did that and it seems clear that Gail read the draft, as she emailed Mr Bone on 22 May 2019, in effect noting that Mr Lakos had included the wrong address for Mr Bone, and asking for Mr Bone to email Mr Lakos to correct the error. Mr Bone was not with Gail at the time, having returned to Santa Fe.

By email dated 23 May 2019, Mr Bone advised Mr Lakos, copied to Gail, his correct address. Mr Lakos then sent a revised draft to Gail, copied to Mr Bone dated 23 May 2019, in which he requested that Gail schedule a conference to meet so that she could execute the Codicil.

Gail met with Mr Lakos on 30 May 2019 and executed the Codicil. Mr Bone was not present at that conference. It also appears that Gail paid Mr Lakos for his services on 30 May 2019.

This chronology demonstrates, quite clearly, that Gail had capacity in the relevant sense. She obviously reviewed the draft and corrected an error. I also do not regard anything in the Codicil as inefficacious. It cannot be said to be irrational for someone in Gail’s position to want to make provision for Mr Bone in circumstances where she had not previously made any provision for him, and they had been in a relationship for some four and a half years. There is also the evidence that Gail subsequently told Nicky Wessels that she had left $1 million to Mr Bone in her will.

There is nothing in the opinions expressed by Professor Watson to lead to a different outcome. The lay and other evidence is more powerful than the educated assumptions made by Professor Watson.

Given that Gail had capacity and again there is no suggestion that the Codicil was not duly executed, a presumption of knowledge and approval arises. Whilst Mr Bone was obviously in attendance at the initial conference with Mr Lakos and Gail on 17 May 2019, he thereafter was overseas. His early involvement and obvious gain from the Codicil may be said to displace the presumption. In any event, I am comfortably satisfied on the evidence that Gail knew and approved of the contents of the Codicil. No other conclusion is reasonably open on the evidence, particularly Gail’s email of 22 May 2019 where she picked up on the error in relation to Mr Bone’s address and asked for him to correct it. The Codicil is also only half a page in length, consisting of three clauses. The subsequent statement by Gail to Nicky Wessels that she had left $1 million to Mr Bone in her will also evidences knowledge and approval.

I am therefore satisfied that Gail had capacity and knew and approved of the contents of the Codicil.

Again, putting to one side the retrospective medical opinion of Professor Watson, there is little in the evidence to suggest that Gail did not have capacity to make a will prior to 2018. There is nothing in the medical records identifying concerns as to memory prior to then.

On the evidence, the suggestion of amending her will was raised first by Gail. It was Gail that raised with Mr Bone the possibility of her providing for him in the will, which he declined. Gail then decided to gift $100,000 to Mr Bone’s daughter.

The initial conference with Mr Lakos was on 17 May 2018 and was attended by both Gail and Mr Bone. It is clear that Gail was actively engaged and following what was required of her, because on 19 May 2018 she sent an email to Mr Lakos providing further details of addresses of the beneficiaries in her will. This suggests that she was obviously aware of what was occurring as she needed to provide details of the beneficiaries of her will. It also demonstrates that she was able to call to mind her beneficiaries.

The inescapable inference from this email is that Gail had provided instructions to Mr Lakos two days’ earlier as to who were to be her beneficiaries. Relevantly, Mr Lakos sent a further draft of the will to Gail on 30 May 2018. He then had a telephone discussion with Gail on 1 June 2018. Further drafts were then sent on 1 June 2018 and 13 June 2018.

An appointment was then made for Gail to execute her will at Mr Lakos’ offices on 15 June 2018. One of the witnesses was an independent solicitor, Jessica Swain. She gave unchallenged evidence of her usual practice in relation to satisfying herself that the testator had capacity. She gave unchallenged evidence that she had no concern as to Gail’s capacity at the time of the meeting. There is nothing to cast doubt on this evidence.

There is considerable other evidence from around this time of Gail interacting with others in a way which suggested that she was aware, for example, of her asset position and was otherwise in complete control of her faculties. One example is evidence given by her sister-in-law, Anne Petith of a conversation that she had with Gail in around 2018 in which Gail referred to her ownership of a 7-11 store, that she had purchased for $5.2 million.

A further important indicator of Gail’s capacity at the time is that shortly after executing the 2018 Will, she went to join Mr Bone in Santa Fe. On 26 June 2018, Mr Lakos sent an email to Gail reporting on the outcome of the meeting of 15 June 2018, and attaching his tax invoice for the legal work that he had carried out. Gail responded to that email on 1 July 2018, stating that she was overseas and would not be able to pay his tax invoice until her return. On her return to Sydney Gail paid that invoice on 21 September 2018. This conduct demonstrates that Gail understood what was being asked of her by Mr Lakos, understood the way in which bills were being paid while she was away and as such, that it would not be possible to pay Mr Lakos’ invoice until her return. She was acting in a coherent and logical way.

Turning now to whether Gail knew and approved of the contents of the 2018 Will, in circumstances where I am satisfied that Gail had capacity at the relevant time and the will was duly executed, a presumption of knowledge and approval arises. There is little in the circumstances, surrounding the lead-up to and making of the will to arouse suspicion. It appears that the idea of changing her will was first raised by Gail. The only change of any substance from the earlier 2014 Will was a gift of $100,000 to Mr Bone’s daughter. There is nothing unusual in the evidence as to how this came about. By this time, Gail and Mr Bone had been a couple for approximately three and a half years.

Mr Bone was not present in Australia at the time that the 2018 Will was executed. Further, the evidence of Ms Swain as to her usual practice and the fact that she followed that practice on 15 June 2018, also strongly supports a finding that Gail knew and approved of the contents of the 2018 Will.

I am satisfied on the evidence that she did.

The applicable legal principles were, understandably, not in dispute. They were summarised for example in Petrovski v Nasev at [263]-[277] per Hallen AsJ.

Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. It requires actual coercion, not simply the influence of affection and attachment or the desire to gratify the wishes of another. The coercion must overpower the volition of the deceased. It is to be distinguished from mere persuasion, appeals to the ties of affection or pity for future destitution, all of which are legitimate.

In Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136, Ipp JA observed at [63] that the circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix and that the volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will.

In closing submissions, senior counsel for Mr Petith, made it clear that the allegations of undue influence were not pursued in respect of the 2018 Will or the May 2019 Codicil. The allegations were maintained in respect of the 2019 Will and the 2021 Will, to which I now turn.

I deal first with the 2021 Will.

The alleged undue influence, as I understand the closing submissions of senior counsel for Mr Petith, centres on two matters. First, that Gail was misled by a Mr Bone in entering into the 2021 Will. Second, that central to the 2021 Will was the fact that in return for Mr Bone receiving the life estate in relation to the Clontarf Property, the entirety of the balance of Gail’s self-managed superannuation fund was to be paid to her estate, with a Binding Death Benefit Nomination being executed by Gail to give effect to this, with Mr Bone being responsible for ensuring that the wishes of Gail were given effect to in this regard. In circumstances where the Nomination that was executed is not effective, Mr Bone has therefore failed in the task that he was responsible for yet he still seeks to retain all, or now part of the self-managed superannuation monies.

It is strictly not necessary and somewhat artificial to consider whether Gail’s will was overborne in circumstances where I have found that Gail did not have capacity at the time of making the 2021 Will and did not know and approve of its contents. I consider the contention briefly on the assumption that Gail did have capacity.

For the reasons set out above, I am satisfied that if the 12 April 2021 conversation that Mr Bone deposes to having had with Gail occurred in the manner in which he contends it did, it contained at least two errors. First, as to Mr Bone having recently decided to remain permanently in Australia. He had decided this already in 2019. Second, as to the reasons why Gail decided not to leave the Clontarf Property to Mr Bone outright. It had nothing to do, as Mr Bone contended, with any issue in relation to taxes. Rather, as the contemporaneous emails at the time make clear, Gail did not want the Clontarf Property to pass under Mr Bone’s will.

Notwithstanding these errors, I am far from satisfied that Gail’s will was overborne in the relevant sense. Mr Lakos and Jessie Xu conferred with Gail in the absence of Mr Bone on 15 April 2021. Mr Lakos confirmed Gail’s instructions. He was clearly acting for Gail. Thereafter, there were communications between Mr Bone and Mr Lakos where it was clear that, at least in part, Mr Bone was seeking to advance his own interests as to the nature of the life estate to be left to him. Those changes requested by Mr Bone were considered by Mr Lakos (acting for Gail) and were very briefly dealt with in the conference with Gail on 20 April 2021. In these circumstances, there is no basis to conclude that Gail’s will was overborne by Mr Bone. Assuming she had capacity, Gail’s actions are readily explainable by reason of a desire to provide more for Mr Bone.

The second of the two matters relied upon also does not lead to a conclusion of any undue influence. Whilst it is clear that Mr Bone understood the key aspects of Gail’s apparent testamentary intentions – namely a life estate to Mr Bone in circumstances where the entirety of her self-managed superannuation would be paid to the estate – and that Mr Bone admitted that, because of Gail’s incapacity, it was he that was driving the execution of the Nomination, there is nothing to suggest that Mr Bone was in any way, shape or form, aware that the Binding Death Benefit Nomination that Mr Lakos had prepared was likely to be ineffective. Mr Bone’s evidence was that he could not recall the Nomination being executed on 20 April 2021. There is nothing in these circumstances to conclude, again, that Gail’s will was somehow overborne by Mr Bone.

All that could be said is that Mr Bone was now seeking to take advantage of the ineffective Nomination by not only maintaining the claim to the life estate, but also making a claim on the self-managed superannuation. That, however, is not undue influence.

I am thus not satisfied that there was any undue influence exerted by Mr Bone in relation to the 2021 Will.

In relation to the 2019 Will, senior counsel for Mr Petith’s argument centred on Mr Bone’s involvement in the preparation of the 2019 Will. It was contended that Mr Bone provided all the instructions to Mr Lakos under Gail’s name, that he was the instigator of the will in circumstances where Gail did not clearly understand fundamental aspects of what was being discussed.

I have set out above my findings in relation to Gail’s capacity and knowledge and approval of the 2019 Will. I have concluded that Gail had capacity at the time and further that she knew and understood the contents of the will. The contentions advanced by senior counsel for Mr Petith do not, as I understand it, raise any different factual allegations. There is nothing in the circumstances of the dealings between Gail, Mr Bone and Mr Lakos leading up to the making of the 2019 Will, to suggest that Gail’s will was in fact overborne by Mr Bone. Whilst Mr Bone was heavily involved, the changes that occurred after the initial instructions were provided by Gail to Mr Lakos, were to the detriment of Mr Bone. He was no longer to receive the Clontarf Property outright but rather was to receive a one third interest in the income of the testamentary trust. Gail’s actions are, again, readily explainable by reason of a desire to provide more for Mr Bone having regard to the development of their relationship.

Mr Bone’s claim for further provision under the Act was only advanced if the 2021 Will is not admitted to probate. I have found above that the 2021 Will should not be admitted to probate because Gail did not have capacity at the time and did not know and approve of the contents of the 2021 Will. The claim for further provision therefore arises for consideration.

It is important to appreciate at the outset that the claim for further provision arises in circumstances where I have determined that the 2019 Will should be admitted to probate, or more accurately, given that the original will was destroyed, a copy of it. Under the 2019 Will, Mr Bone receives not only the $1 million legacy introduced by the Codicil but also one third of the income of the testamentary trust.

In circumstances where the Clontarf Property will not be subject to a life estate in favour of Mr Bone, there is no reason why the Clontarf Property should not be sold and the proceeds form part of the residue. It seems to be clear that the market value of the Clontarf Property is in the order of $12 million. The income earnt by the testamentary trust would be significantly increased by the addition of approximately $12 million to it and Mr Bone would benefit accordingly by virtue of his one third share of the annual income.

In addition, Mr Bone will receive in the order of $2 million from the self-managed superannuation fund with the remaining $4 plus million (after tax is taken out) forming part of the residuary estate. The annual income of the testamentary trust will be correspondingly increased as a result with Mr Bone receiving a third of that income.

Mr Bone also has substantial assets in the United States. I have set these out above.

Mr Bone was cross-examined by counsel for the NSWTAG in relation to his asset position and his likely annual income. Ignoring the value of his property in Santa Fe, Mr Bone’s assets, including the $1 million legacy under the 2019 Will and the $2 million likely to be received from Gail’s self-managed superannuation fund, are in the order of $7.3 million. If these assets earn a five percent return annually, Mr Bone will earn approximately $365,000 per annum. Mr Bone’s expected return was in fact higher – in the order of eight to ten percent.

A rough estimate of the value of the testamentary trust, assuming the Clontarf Property is sold, and its proceeds invested, is in the order of $19 million. If this earns a five percent return, the annual income will be approximately $960,000 and Mr Bone’s share in the order of $320,000. These figures do not take account of the $4 million injection into the testamentary trust from Gail’s self-managed super fund.

It was put to Mr Bone in these circumstances that he would be well able to buy a suitable property in Sydney or alternatively rent one. A number of properties were identified to Mr Bone in cross-examination. He did not agree that any of the properties would be suitable. As set out above, this was an example of Mr Bone’s intransigence.

Mr Bone’s claim for further provision is also to be considered in circumstances where he is now 74 years old. His relationship with Gail began in late 2014 and obviously ended when Gail died in April 2021 – a period of a little over six years. At least during the period from September 2019 until Gail passed away in April 2021 when the couple were living in Australia due to COVID restrictions, Mr Bone admitted that Gail paid for almost the entirety of his living expenses and as such, his wealth was otherwise not depleted and grew. Allied to this, it is clear that Mr Bone does not claim to have made any financial contribution to Gail’s estate. They kept their respective estates separate.

Mr Bone put his claim this way in answer to a question in cross-examination from counsel for the NSWTAG:

Counsel for Mr Bone emphasised that the relevant question under the statue is not just whether the provision is “adequate”, but whether adequate provision for the “proper” maintenance, support and advancement of the applicant has been made. Proper maintenance is not limited to the bare sustenance of a claimant’s position in life including age, status, relationship with the deceased financial circumstances, the environs to which he or she is accustomed, and mobility: see Alexander v Jansson [2010] NSWCA 176 at [18] per Brereton J. Reliance was also placed on what Callinan and Heydon JJ wrote in Vigolo v Bostin (2005) 221 CLR 191 at 228 [114] to the effect that regard must be had to how the parties have lived and might reasonably expect to have lived in the future.

In circumstances where the estate is large and there are no other beneficiaries who present competing moral claims on Gail’s estate, and considering Mr Bone’s position as a loving, dutiful and dependant spouse to Gail, it was contended that the Court should make provision for Mr Bone which provides him with secure accommodation in a way that does not require him to realise his own assets (and thereby reduce his available income). The primary submission was that provision in terms of what was provided for in the 2021 Will should be ordered. Alternatively, a capital sum should be ordered and the Court would have the flexibility under the Act to in effect capitalise the whole trust now to enable this to occur.

The NSWTAG’s primary position was that no order for further provision should be made in favour of Mr Bone. He could purchase suitable accommodation from his own resources, including those legacies left to him under the 2019 Will. Reference was also made to the cases that each claim for provision must be determined on its merits regardless of the relationship between the claimant and the deceased eg Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 at [170] per Ward CJ in Eq (as her Honour then was).

The relevant principles are well understood. Having regard to all relevant circumstances at the present time, did Gail make inadequate provision for Mr Bone’s proper maintenance or advancement in life: s 59(1) of the Act; Dighton v Norwood [2024] NSWSC 318 at [87]ff.

Having regard to all of the circumstances, I am not satisfied that inadequate provision was made by Gail in the 2019 Will for Mr Bone’s proper maintenance or advancement in life.

I am conscious that the question is whether adequate provision is made for Mr Bone’s proper maintenance, education or advancement in life and that these are relative concepts which must have regard to the size and nature of Gail’s estate and the lifestyle Gail allowed Mr Bone to live. Gail’s estate is large and for the two and half years before Gail died, the two of them lived in a large waterfront home in Clontarf or at Gail’s apartment on the Gold Coast. Gail in effect funded Mr Bone’s lifestyle. The fact that the estate is large does not provide a basis for some kind of blank cheque exercise: see Soulos v Pagones (2023) 416 ALR 181 at [682] per Ward P.

A surviving spouse does not have a right, in effect, to be maintained in the manner to which they were accustomed when living with the now deceased. An evaluative assessment is required having regard to the relevant circumstances.

In the present case, those circumstances as at the present time include:

Having regard to all of these matters, it is my view that the community would not expect for Gail to provide any more for Mr Bone.

Mr Bone’s claim for further provision should be dismissed.

For the reasons set out above, a copy of the 2019 Will should be admitted to probate. Mr Bone’s claim for further provision should be dismissed. At the request of the parties, I will hear them as to costs if they are unable to reach agreement. Any remaining issues, including as to costs, will be determined on the papers.

The orders of the Court are: