Craig-Bridges v NSW Trustee and Guardian

1. [1]

   THE COURT: Mrs Ella Minnie Lillian Bush died on 31 January 2015, aged 90. She executed professionally drafted wills on 12 March 1990, 8 June 2011, 22 November 2011, 12 November 2012 and 21 February 2013. The principal issue on this appeal is whether she had capacity to execute any or all of the last three of those wills.

Overview of factual background

1. [2]

   Without conveying any disrespect, we shall refer to Ella and members of her family by their given names. Ella married Samuel in 1947 and the couple moved to Wee Waa in north western New South Wales in the 1960s. They purchased a home on Alma St in 1976, and Ella lived there for almost the next 40 years.

2. [3]

   There were two sons of the marriage, one of whom had died, childless, in 1970. Ella’s husband Samuel died in 1995.

3. [4]

   By the time of her first will, in 1990, Ella’s surviving son, Ronald, had five daughters. The oldest was the appellant, Helene, who was born in 1973. Ronald and Helene’s mother separated and were divorced in around 1983. Helene and her younger sisters remained under the care of Helene’s mother. Helene gave evidence that she became estranged from her mother, living with her maternal grandmother for around six months when she was around 14 then living in a flat when she was 15 before living with her paternal grandparents at Alma St from mid 1989 and mid 1992. Helene thereafter moved to Queensland, and married, but kept in touch with her paternal grandparents.

4. [5]

   Ella’s 1990 will appointed her husband as executor and sole beneficiary and provided that if he and Ronald did not survive her, her estate should go to Helene and her sisters in equal shares.

5. [6]

   Ronald died on 24 April 2011. Helene was granted letters of administration of his intestate estate in November 2011.

6. [7]

   Ella’s will of 8 June 2011 nominated Helene as executrix, and left her estate to her five granddaughters in equal shares. Bearing in mind the deaths of Samuel and Ronald, the substantive effect was the same as the 1990 will, although by this time Ella had succeeded to ownership of the home in Wee Waa, a holiday house in Yamba, and quite substantial bank accounts reflecting a lottery win some years before.

7. [8]

   In contrast, the last three of Ella’s wills left the whole of her estate equally to the Cancer Council of NSW and Wee Waa Anglican Church. The main difference between those wills was the executor. The November 2011 will appointed Mrs Bush’s brother Cecil as executor. Cecil had died nine years earlier. The November 2012 will appointed her brother Edward as executor. There was evidence that Edward was in very poor health. He died less than a month later. The February 2013 will appointed the respondent, NSW Trustee and Guardian, the corporation established by s 5 of the NSW Trustee and Guardian Act 2009 (NSW) which is the successor of the Public Trustee (see Schedule 1, cl 11 of that Act), as executor.

8. [9]

   In April 2016 the gross value of Ella’s estate was estimated at a little over $1,000,000.

Procedural background

1. [10]

   Helene sought a grant of probate in respect of the June 2011 will, or alternatively the 1990 will. NSW Trustee and Guardian claimed a grant of probate in respect of any of the three most recent wills. Helene defended the claim by asserting that Ella had, following the execution of the June 2011 will, lost testamentary capacity. By separate proceedings, Helene also sought an order for family provision under s 59 of the Succession Act 2006 (NSW). (It seems that if Helene’s sisters had any claim to be considered as an “eligible person” who might apply for family provision as grandchildren who had been dependent upon Ella within the meaning of s 59(1)(e)(ii) of the Succession Act, theirs were much weaker claims than Helene’s.)

2. [11]

   The probate proceedings and the Succession Act proceeding were heard together by the primary judge over three days, in the course of which Helene made it clear that if she succeeded in obtaining a grant of probate in respect of either of the earlier two wills (which left the estate to her and her sisters) she would not press her claim for family provision.

3. [12]

   The primary judge found that Ella had capacity to make each of the November 2011, November 2012 and the February 2013 wills. His Honour also ordered that provision should be made in favour of Helene under s 59 of the Succession Act in the amount of a one fifth share of the estate: Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Bush v NSW Trustee & Guardian [2016] NSWSC 1611. There is no appeal or cross-appeal specifically from that order, although Helene accepted that if her appeal were allowed, the order would be set aside.

4. [13]

   The principal way in which Helene contended that the primary judge had erred in his conclusions of capacity in relation to the three most recent wills (ground 1) was that he had failed properly to have regard to the shifting onus in a case such as the present where doubts had been established about the testatrix’s capacity (most notably, by nominating her deceased brother as executor in November 2011). But the notice of appeal also challenged the findings of capacity as at November 2011, November 2012 and February 2013 (grounds 2, 3 and 4) and it was said that the evidence was not capable of satisfying the court that the testatrix was capable (ground 5). It was also said that there was error in finding that she had the requisite knowledge and approval in respect of each of the most recent three wills (ground 6).

5. [14]

   Although the first ground falls to be assessed primarily against the reasons of the primary judge, in relation to the remaining grounds, s 75A of the Supreme Court Act 1970 (NSW) requires this Court to undertake a real review in accordance with the principles stated in Warren v Coombes (1979) 142 CLR 531 and confirmed in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 on the question of whether or not the primary judge had erred in concluding that Ella had testamentary capacity in November 2011, November 2012 and February 2013. To anticipate what follows, there was essentially no challenge to the findings of primary fact. Rather, the gravamen of these grounds was that the primary judge had erred in the inferences he drew from some of the evidence, and had failed to have regard to other, highly probative evidence, thereby reaching an incorrect conclusion.

6. [15]

   The nature of the appeal makes it necessary to summarise the evidence adduced at trial in some detail. What follows starts with the documentary evidence which bears upon the making of each of the impugned wills, then the testimonial evidence relating to each will, then the lay evidence called by each side, then the medical evidence (both documentary and expert).

Ella’s five wills

1. [16]

   We start with the contemporaneous documents which directly bore upon the wills. There are not many of them.

2. [17]

   Ella’s 1990 and June 2011 wills were drafted by local solicitors at Wee Waa. There was unchallenged evidence from Helene that the firm which had drafted the 2011 will had expressed some reluctance in acting for Ella later in the same year. On 19 October 2011, after Helene had applied to be administratrix of Ronald’s intestate estate, a law practice based in Gunnedah wrote to Mr Hugh Palmer, solicitor, on 19 October 2011 in the following terms:

3. [18]

   The reference to a “second opinion” suggests some concern and perhaps dissatisfaction on the part of Ella with the administration of Ronald’s estate; if that is so, the evidence did not shed any light upon it. The grant had not yet been made, although Helene’s affidavit attaching an inventory of his estate was made on 23 August 2011, from which it may be inferred that her application had been lodged. An attempt was made in cross-examination to establish that Ella was dissatisfied about Helene’s decision as administratrix in 2012 to sell a property in Wee Waa which had been owned by Ronald; Helene denied this. She also denied that Ella was dissatisfied about a lack of consultation in respect of the funeral arrangements and some of the other property in Ronald’s deceased estate.

4. [19]

   Mr Palmer’s file included a hand-written note dated 26 October 2011 which recorded Ella’s name, address and phone number and then provided:

5. [20]

   Consistently with the foregoing, Mr Palmer witnessed the signing on 21 November 2011 by Ella of her appointment as enduring guardian of Mrs Maisie Kelly, Ella’s sister-in-law, who also lived in Wee Waa. Why the will was executed on 22 November and the power of attorney was executed on 21 November was unexplained; nothing turns on this, because, save for the file note, no documents relating to the taking of instructions, drafting or execution of the document were in evidence.

6. [21]

   Also consistently with the file note, the November 2011 will left the entirety of Ella’s estate to “Cancer Council NSW” and “Wee Waa Anglican Church”. It was not suggested by any party that there was any material difficulty identifying the objects of Ella’s testamentary choices. The “New South Wales Cancer Council” had been established by the New South Wales Cancer Council Act 1955 (NSW) and continued by s 4 of the New South Wales Cancer Council Act 1995 (NSW); it became a company known as “The Cancer Council NSW” pursuant to a mechanism in Schedule 2 of the Cancer Institute (NSW) Act 2003 (NSW). There may perhaps be a question as to the operation of the gift to “Wee Waa Anglican Church” (see the three possibilities mentioned by Harman J in In re Gare; Filmer v Cater [1952] Ch 80 at 85) but it is unnecessary to express a view on a point on which nothing turns.

7. [22]

   Much more importantly, the November 2011 will purported to appoint Ella’s brother, Mr Cecil Henry Hurn, as her executor and trustee. Cecil had died some nine years before. He had also been a lifelong resident of Gunnedah (a relatively nearby town in rural New South Wales). Ella’s surviving brother Edward (known as Ted) lived in Queensland.

8. [23]

   Plainly enough, Ella was confused when she instructed Mr Palmer on 26 October 2011, when she told him the name of the executor who was a brother in Queensland. It seems likely that she was also confused when she executed the will a month later, for even if the will was not read aloud to her before she executed it, it is hard to think that she was not taken to the identity of the executor nominated by her.

9. [24]

   There are two other difficulties with the November 2011 will. The first is that it gave a power to the executor to apply for the maintenance education or benefit of any minor beneficiary in relation to the whole or any part of the capital of the estate. That power was inappropriate in a will which left the entirety of the estate to two charities. As the primary judge observed, this also suggests that the will may not have been read aloud to her.

10. [25]

    The second was that if (as may readily be inferred) the solicitor who drafted it believed that the brother nominated as executor was alive, that only raises a series of further questions. Was the brother also in his 80s or 90s? What was his life expectancy? Did the brother have a family? What regard did Ella give to such claims on her estate as he and his family might have?

11. [26]

    For those reasons, it was common ground both at trial and on appeal that despite the rationality of Ella’s November 2011 and the clear proof by the witnesses that it had been duly executed, the presumption of capacity had been displaced, such that NSW Trustee and Guardian as the propounder of the will bore the evidential burden to show that Ella was of “sound and disposing mind”: see for example Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45].

12. [27]

    The November 2011 will was witnessed by Mr Palmer and Ms E H Kelaher, clerk. There were no other filenotes in relation to this will, and (as will be seen below) neither witness had any recollection of the circumstances in which it was executed.

13. [28]

    Mr Palmer’s file also included a note dated 12 November 2012 which was as follows:

14. [29]

    The November 2012 will was in identical terms as the November 2011 will save that Mr Edward John Hurn (Mrs Bush’s surviving brother) was appointed executor and trustee. The power to apply for maintenance, education or benefit of minor beneficiaries was preserved in that will. The will was witnessed by Mr Palmer and Ms S Gordon, clerk. Again, there were no other filenotes relating to the execution of this will.

15. [30]

    A file note dated 21 February 2013 from Mr Palmer’s file records the following (phone numbers and Maisie’s address have been omitted):

16. [31]

    The February 2013 will appointed NSW Trustee & Guardian as executor and trustee and deleted the inappropriate power to apply for maintenance education or benefit of minor beneficiaries. That will was also witnessed by Mr Palmer and Ms Gordon. One again, there were no file notes or other documents bearing upon the execution of this will.

17. [32]

    The only other contemporaneous document from Mr Palmer’s file was a file note referring to two conversations on 20 May 2013 and 30 May 2013. The first half is typed, and is initialled “SG” (presumably Ms Sally Gordon). It is in the following terms.

18. [33]

    The second half is handwritten and signed by Mr Palmer. It is as follows:

Testimonial evidence relating to the execution of the wills

1. [34]

   Uncontroversial evidence was adduced from Ms Kelaher and Ms Gordon as to their signatures witnessing the execution of the wills. Neither deposed to what had occurred when the wills were executed. Neither was cross-examined.

2. [35]

   Mr Palmer gave evidence that he had been admitted to practice in 1967 and, after practising as an employed solicitor, had practised as a sole practitioner from 1974 until 2014, when he sold his practice. He said that he had no direct recollection of taking instructions from Ella nor attending upon her to execute any of her wills, and his cross-examination made it plain that he had no recollection of the circumstances surrounding the execution of any of the three wills.

3. [36]

   Mr Palmer gave affidavit evidence of his usual practice on taking instructions from a client for a simple will, to the effect that:

4. [37]

   Mr Palmer said that if he formed the view that he was troubled about the mental capacity of a client, then he might, in a severe case, contact his or her local doctor and make diary notes of the doctor’s advice, and if the person appeared to be somewhat vague, he would also make diary notes of matters or conversations that troubled him.

5. [38]

   Mr Palmer also said that it was his practice to read the will paragraph by paragraph. The primary judge said it was unlikely this had occurred, having regard to the inappropriate power for maintenance, education and benefit: at [85]. Mr Palmer stated that the November 2012 and February 2013 wills had been drafted on the same day they were executed and inferred that Mrs Bush had attended at his office on those days.

6. [39]

   The primary judge described Mr Palmer’s appreciation of the test to be applied when determining whether a client had testamentary capacity as “vague”: at [88]. The transcript suggests he was uneasy about answering questions about Banks v Goodfellow (1870) LR 5 QB 549. After giving a somewhat vague answer, perhaps followed by a pause unrecorded on the transcript, the cross-examiner said “I haven’t cut you off but I don’t want to cut you short. Do you want to take any further your understanding?” to which Mr Palmer responded that he did not. He was then asked:

7. [40]

   The primary judge was in a considerably superior position to this Court in assessing the likelihood of what precisely Mr Palmer had done on each of the occasions he was involved in the drafting and execution of Ella’s wills. There was also unchallenged evidence from Helene that the second of those occasions had taken no more than 5 minutes. Ultimately, neither party invited this Court to depart from the conclusions of the primary judge expressed as follows:

8. [41]

   After Mr Palmer was cross-examined about the file note dated 30 May 2013, counsel for the NSW Trustee & Guardian tendered the file note and sought leave to ask Helene about it. Her cross-examination had been completed earlier that morning, and had not been directed to Helene’s evidence of her conversation with Mr Palmer’s receptionist and subsequent conversation with Ella in May 2013. Although counsel advised that he had seen the document for the first time, it had been produced under subpoena some three months earlier, and leave was refused. Helene’s unchallenged evidence of those conversations is reproduced below.

Helene’s evidence

1. [42]

   Helene was the only one of Ella’s grandchildren to give evidence. Her cross-examination occupied slightly more than an hour.

2. [43]

   Helene accepted in cross-examination that she had been living in Queensland in 2011 and had visited her grandmother in April, May, July and December 2011. She had remarried in August 2011. Ella attended the wedding in Brisbane. Helene said that Ella did not recognise her mother, and said “Who is that woman?” In cross-examination, she acknowledged that Ella and her mother had not got along, and that they had not met for about 28 years. Helene and her sister Wendy visited her in July 2011. Helene said that Ella failed to recognise Wendy. Helene also gave evidence of instances when Ella had said “Where is Ronnie? He is running late” or “Ronnie is out at Yamba at the moment but he should be back soon” after her father had died, although her evidence did not specify a precise date when Ella had made those statements.

3. [44]

   Helene also gave evidence of her grandmother being confused about what had happened to Ronald’s Harley Davidson motorcycle (which disappeared in December 2011), as follows:

4. [45]

   Helene said that she did not raise the subject of the motorcycle with the deceased again as it appeared to upset her as she appeared confused by what had happened, and that she had never found out what happened to the Harley Davidson.

5. [46]

   Helene also gave the following evidence of “out of character” behaviour by Ella between September and December 2011:

6. [47]

   Helene said that she spoke with her grandmother on the telephone in approximately November 2011:

7. [48]

   Helene said she was unaware of any falling out between her and her grandmother in the second half of 2011, and that she was unaware of the 19 October 2011 letter until she was preparing for the litigation. She was not cross-examined on any of the matters summarised in the previous four paragraphs.

8. [49]

   In June 2012, Ella was suffering from anaemia, and Helene travelled with her to Tamworth Hospital and stayed at the hospital with her, before both travelled to Wee Waa Hospital, where Ella stayed for a few weeks before returning home.

9. [50]

   In November 2012, Helene took Ella to Mr Palmer’s office in Gunnedah, where she spent no more than 5 minutes executing the new will.

10. [51]

    Helene accepted that after the deceased was discharged from Wee Waa hospital she continued to live at home alone until late 2014, where she did her own laundry, her own cooking, and continued to be actively involved in her garden. Helene gave evidence that, so far as she was aware, one sister visited her grandmother infrequently, another had not visited her grandmother after 2012, a third had visited her grandmother on at least two occasions, as had a fourth.

11. [52]

    Helene accepted that her grandmother had been a regular attender at Wee Waa Anglican Church for in excess of 20 years, which was where her funeral took place. She also agreed that at least two members of her grandmother’s immediate family had died from cancer and she was aware that she had attended some functions of the Wee Waa cancer support group.

12. [53]

    Helene was not cross-examined on much of what she deposed in relation to the events of 2012 and 2013. In particular, she said that in May 2013, she had opened an envelope containing a copy of one of the later wills, and said that she had had this conversation:

13. [54]

    Helene gave evidence of a conversation with Ella as follows:

14. [55]

    Helene said that “from her facial expression and voice”, she formed the view that Ella was “very confused and was becoming upset” and did not continue with the discussion about the will.

15. [56]

    Helene had said that to her knowledge Ella had never accessed any of the term deposits or shares which her husband had purchased after winning a lottery. In a supplementary affidavit, Helene said that she had been shopping with Ella in 2012 or 2013 and had a conversation about Ella buying a dress she liked as follows:

Lay evidence called by NSW Trustee and Guardian

1. [57]

   Reverend Simon Carter had conducted services at Wee Waa Anglican Church from January 2006 until April 2012. He said that Ella was a regular attender at the 8:15 service, after which he would have an “intentional” conversation with the parishioners before the 10:00am service relating to how they were growing as a Christian. He said that he and she would probably talk every second or third week. He did not notice any change in Ella’s presentation nor her ability to converse over time, and added:

2. [58]

   Reverend Bernard Gabbott was the assistant vicar from January 2010 and the vicar from Easter 2012 at Wee Waa Anglican Church. He spoke to Ella each Sunday morning after church and began to visit her in a pastoral capacity from mid-2010. He gave this evidence, as to which he was not cross-examined:

3. [59]

   In 2011, after Ronald’s death, Ella had offered Rev Gabbott and his family the use of her home in Yamba for a holiday. He said that she gave clear directions and instructions and that it was initiated by her. Unfortunately, the house at Yamba was in a state of disrepair, so much so that he and his family felt uncomfortable staying there. He said that Ella was shocked when he told her the state of the house but that he had really appreciated the offer.

4. [60]

   After Rev Gabbott became the vicar-in-charge at Wee Waa, his pastoral visiting declined, and to the best of his recollection he had visited her two to three times after 2012. He also said that her attendance at church started to decrease around that time and that to the best of his recollection the next service she attended after Easter 2012 was the Christmas 2012 service.

5. [61]

   Mrs Maisie Kelly, Ella’s sister in law, lived in Wee Waa and gave evidence and was cross-examined. She was 91 years old when she gave evidence. She said that Ella had been upset with Helene about how Ronald’s funeral had been arranged, that Ella was interested in the work of the Cancer Council, and that:

6. [62]

   Mrs Kelly maintained in an understandably gentle cross-examination that Ella was entirely lucid until the very end of her life. The primary judge did not expressly rely on this evidence, which is contrary to a host of medical evidence in 2012, 2013 and 2014.

7. [63]

   Mrs Kelly’s daughter-in-law Robyn had lived in Wee Waa until February 2012, and had been for approximately 10 years the secretary of the Wee Waa Cancer Support Group, and uncontroversially described Ella’s interest in that group’s activities. She said:

Documentary medical evidence

1. [64]

   Ella regularly visited her local general practitioner, and his notes from 2010 until her death were in evidence. They indicate a range of minor and less minor physical complaints and are mostly silent as to her cognitive ability (there is a reference to her being confused in June 2012 and a reference to her dementia in September 2014). A recurring theme is her being examined so as to enable her to apply to retain, and later to attempt to regain, her driver’s licence. It is plain that her general practitioner did not record his observations of Ella’s mental state; we are not suggesting that it would have been appropriate for him to have done so. He was not called to give evidence.

2. [65]

   Ella was admitted to hospital at Wee Waa on 26 May 2012. A note made by the nurse on 13 June 2012 is as follows:

3. [66]

   Ella was assessed in the presence of Helene on 18 June 2012, and a Care Plan recorded the following:

4. [67]

   After receiving further treatment for anaemia, by all accounts Ella’s condition improved. She was discharged from hospital, and was assessed in early September 2012 as follows:

5. [68]

   Ella was assessed again on 26 September 2012 by Dr Harradine, the director of Rehabilitation & Aged Care Services at Tamworth Hospital. This appears to have been a more detailed assessment than had occurred on previous occasions. For that reason, and because it took place some six weeks prior to the November 2012 will, it warrants reproduction in its entirety:

6. [69]

   The melancholy evidence as to Ella’s cognitive decline includes the clock face test and the Folstein MMSE tests to which Dr Harradine’s report referred. The clock face drawn by Ella has the numbers 1 to 12 drawn accurately, but has a single short arrow close to the circumference connecting the number 10 and the number 11. The Folstein MMSE tests asked 30 simple questions. It is plain that her short term memory was very poor. For example, she was asked to remember three words, so that she could repeat them. She was only able to repeat two out of Apple, Table and Penny immediately after being asked. Then, after being asked two subsequent questions, she was unable to remember any of those three words. Although those matters imply cognitive impairment, it should be noted that the expert medical evidence was unanimous that the tests were relatively crude, and mainly intended as a screening tool.

7. [70]

   In July 2012, Helene had applied to the Guardianship Tribunal for a review of the enduring guardianship appointment to Mrs Kelly. The details of review may be passed over, as not shedding light on Ella’s capacity (although it may be noted that the record includes a suggestion that Ella was dissatisfied with the way Ronald’s estate had been administered). The Tribunal confirmed the appointment of Mrs Kelly as Ella’s enduring guardian following a hearing on 5 December 2012.

8. [71]

   It is unnecessary to summarise in detail Ella’s decline after May 2013. There are documents recording her driver’s licence being suspended, her continuing to drive without a licence, and concerns about the danger this caused. A continuing guardianship order was made by NCAT on 21 November 2014 in favour of Helene. On the same day, Helene was appointed as the financial manager of the estate. By that time a Care Plan recommended “residential respite care at borderline high level of care due to her cognitive impairment”, with a longer term recommendation of residential care “as Mrs Bush is unsafe to remain at home alone”. Ella died in January 2015, shortly after transferring to residential care, and following a fall.

Expert medical evidence

1. [72]

   Associate Professor Tuly Rosenfeld, a specialist geriatrician and Dr Wayne Reid, a clinical neuropsychologist, gave expert opinions in support of Helene and NSW Trustee & Guardian, respectively. Their opinions were based on their review of the medical records; neither had ever seen Ella.

2. [73]

   The experts framed their opinion around three elements of the test of capacity stated in Banks v Goodfellow (1870) 5 QB 549 at 565, namely, an understanding of the nature and effect of making a will, understanding the extent of the property being disposed, and appreciating the claims upon Ella’s estate. Both experts agreed that Ella had understood the nature and effect of making each of the three most recent wills. Their opinions diverged in relation to the second and third elements.

3. [74]

   Professor Rosenfeld considered that Ella was suffering from “cognitive impairments related to the progression of brain disease and early dementia” when she made both her June and November 2011 wills, but formed a different conclusion as to her testamentary capacity in relation to each will. In relation to the June 2011 will, his conclusion was:

4. [75]

   However, Professor Rosenfeld considered that as at November 2011:

5. [76]

   The professor likewise expressed different opinions as to Ella’s awareness of those who might reasonably have been thought to have a claim upon her testamentary estate in June and November 2011.

6. [77]

   The primary judge expressed mild criticism of those opinions, noting (with respect correctly) that there was no medical evidence before Professor Rosenfeld or the Court as to Ella’s condition in the period between June and November 2011, and that the opinion appeared to have been based on his reading of Helene’s account of Mrs Bush’s conduct at her wedding and some manifestations of Ella’s confusion which Helene described between September and December 2011: at [94].

7. [78]

   Largely by reference to the medical evidence which preceded the November 2012 and February 2013 wills, Professor Rosenfeld maintained that Ella likewise lacked capacity at later times.

8. [79]

   Dr Reid said that he was of the opinion that Ella was likely to have been confused when making her will in November 2011, but was of the view that although there was evidence of cognitive impairment, she did have the capacity to make the wills in November 2012 and February 2013. Dr Reid attributed her confusion in late 2011 to suffering from a delirium due to anaemia, as well as a neurocognitive disorder (namely, a “mild to moderate vascular neurocognitive disorder (DSM-5)”).

9. [80]

   Both doctors gave concurrent evidence on the second day of the hearing. Both accepted that they were disadvantaged by not having spent time with Ella.

10. [81]

    Dr Reid’s report did not positively say that he was of the opinion that Ella had capacity when she made the November 2011 will. He was cross-examined as follows:

11. [82]

    Nowhere in Dr Reid’s written or oral evidence did he positively say that Ella had testamentary capacity in November 2011. Nor did he express the negative conclusion that she did not. The passage reproduced above captures his position which seems to have been that he had a real doubt about whether in November 2011 she had capacity to consider the claims upon her.

12. [83]

    Professor Rosenfeld had no such doubt. His opinion is captured by the following extract of his evidence:

The reasons of the primary judge

1. [84]

   The first 150 paragraphs of the reasons of the primary judge, delivered promptly after the three day trial, deal with the probate proceedings and the question of capacity. His Honour set out the uncontroversial facts and framed the issue as Ella’s capacity to make the wills of November 2011, November 2012 and February 2013. Under the heading “Principles”, the primary judge said the following:

2. [85]

   Helene submitted that the final paragraph reproduced above disclosed error insofar as it failed to reflect the fact that an evidentiary onus lay upon NSW Trustee & Guardian.

3. [86]

   The primary judge then set out a summary of the test for testamentary capacity derived from Banks v Goodfellow, which was not subject to criticism. His Honour said that the question was whether any illness suffered by Ella “so affected her mental faculties as to make them unequal to the task of disposing of [her] property”: Bailey v Bailey (1924) 34 CLR 558 at 572. His Honour then at [36] and [37] reproduced statements of principle from Gleeson CJ in Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 289-90 and Manning v Hughes; Estate of Ludevig [2010] NSWSC 226 at [65] to which reference is made below.

4. [87]

   At [38]-[58], his Honour summarised the evidence, principally from Helene, as to Ella’s symptoms in 2011. At [59]-[90], the primary judge addressed the making and the circumstances surrounding the November 2011 will, and at [91]-[98] he summarised the expert opinion evidence from Professor Rosenfeld and Dr Reid. His Honour with respect correctly recorded that the professor was of the view that Ella lacked capacity in November 2011, while Dr Reid had concerns about her testamentary capacity.

5. [88]

   It is appropriate to reproduce the entirety of the dispositive reasoning in relation to the November 2011 will, which was at [99]-[108].

6. [89]

   It will be seen that the primary judge had regard to a wide range of evidence, and explicitly framed his inquiry at [104] and [105] by reference to the second and third elements in the Banks v Goodfellow formulation.

7. [90]

   The primary judge went on to address the 2012 and 2013 wills at [109]-[128] and [129]-[149] respectively. In each his Honour concluded that Ella had testamentary capacity.

8. [91]

   In the case of the 2012 will, his Honour summarised the contemporaneous medical documents, such documentary evidence as there was in relation to the execution of the will, and the competing opinions of Professor Rosenfeld and Dr Reid. His Honour’s conclusion was:

9. [92]

   In relation to the 2013 will, his Honour summarised at length the testimonial evidence of Helene (including the events of May 2013) and the competing views of the experts. His Honour concluded:

10. [93]

    It will be seen that each of those conclusions was framed in terms of being linked with the earlier finding of testamentary capacity at the time the previous will was executed.

Submissions on Appeal

1. [94]

   Ground 1 of the appeal was that the primary judge had erred in approaching the matter on the basis that the burden was upon Helene to prove incapacity, rather than upon NSW Trustee and Guardian to prove capacity. Grounds 2, 3 and 4 were that the primary judge had erred in holding that Ella had capacity to make each of the November 2011, the November 2012 and the February 2013 wills. Ground 5 was that the evidence was not capable of satisfying the evidentiary onus upon NSW Trustee and Guardian in relation to any of those three wills in respect of Ella (a) not suffering from a disease of the mind which poisoned her affections, (b) understood the nature and extent of the property she was disposing and (c) was able to comprehend or appreciate the claims to which she ought to give effect. Ground 6 was a challenge to the finding that Ella had the requisite knowledge and approval of each of those wills.

2. [95]

   As previously noted, Helene submitted that the “key error” made by the primary judge was to reverse the onus of proving capacity. In addition to relying upon paragraph [32] referred to above, Helene also said that the error was disclosed at [14] of his judgment of 16 September 2016 on costs where his Honour recorded “although I did not find that that conduct compelled the conclusion that Ella lacked testamentary capacity …”.

3. [96]

   Helene’s written submissions emphasised the testimonial evidence as to her demented behaviour in 2011, as to which she had not been challenged in cross-examination. This included the belief that her son Ronald (who had died in April 2011) was still alive, the disappearance of Ronald’s Harley Davidson motorcycle in around December 2011, and the conversation between Helene and Ella in which Ella said that she thought she had sold the bike. There was also evidence as to Ella’s confusion as to the identity of her granddaughters in her presence, and irritation and confusion, including thoughts of people stealing property and breaking into her home.

4. [97]

   Helene submitted that both parties’ experts were in agreement that the deceased had lacked testamentary capacity in relation to the November 2011 will. Although this submission was prominent in the written submissions it was not disputed in the respondent’s written submissions. Orally, NSW Trustee & Guardian said that Dr Reid only went so far as to say that there was a doubt which threw the onus upon it to establish capacity.

5. [98]

   Helene’s submissions noted that the evidence of Rev Carter and Rev Gabbott did not include discussions as to financial matters, wills, her estate or her assets. The same was true of the evidence of Mrs Maisie and Robyn Kelly. Further, although those lay witnesses gave evidence that Ella did not appear confused and seemed alert and capable, Helene submitted that their evidence was inconsistent not only with the medical evidence but also the suspension of her driver’s licence and persistence to regain it (despite what she was told by medical professionals, the police and the RTA), the evidence from Helene, the diagnosis by Dr Harradine in October 2012, the references in the medical notes detailing the need for daily attendance to ensure that medication was taken due to her confusion, and the appointment of an enduring guardian. Helene summarised how the evidence should have been assessed as follows:

6. [99]

   Helene accepted that Ella understood at each of the occasions that she attended Mr Palmer’s office that she was making a will. Helene complained that the primary judge inverted the onus by his statement at [104] referring to Helene’s evidence of Ella saying she had no money as being the only evidence of conduct which suggested she did not understand the nature and extent of her estate.

7. [100]

   Helene identified two errors in relation to the third limb of the Banks v Goodfellow test. It was said that nominating Cecil as executor was “no mere slip”, because it was made when instructions were given to Mr Palmer in October 2011 and repeated when the will was executed in the following month. It was also said that Ella could not be found to have been able to call to mind and weigh the claims of her granddaughters, who were being excluded from the will she was executing in November 2011, when “the only person she is known to have called to mind was a deceased person.”

8. [101]

   Helene also complained that the reasoning in [105] reproduced above reflected a reversal of the onus, particularly in the last sentence when his Honour referred to Helene’s evidence not identifying instances, save for one, which suggested Ella had forgotten the identity of her granddaughters. It was said that there was no evidence that Ella had comprehended and appreciated the claims of her grandchildren.

9. [102]

   Helene also submitted that error was disclosed by the statement by the primary judge that “the factor I find most persuasive is the simplicity of the will and its evidently rational disposition of Ella’s estate”. It was said that testamentary capacity was of the ability to make a will, not the will, although it was a factor relevant to whether the deceased knew or approved of the will.

10. [103]

    Helene summarised the errors made by the primary judge as follows:

11. [104]

    In relation to the November 2012 will, Helene placed reliance upon the evidence of Dr Harradine and the fact that by that time a Care Plan had been implemented, which noted her cognitive decline. She also referred to the fact that Ms Robyn Kelly had ceased to reside in Wee Waa from February 2012, that Rev Carter had no contact with Ella until after February 2012 and that Rev Gabbott’s evidence was limited in the way pointed out above, notably that his pastoral care visits significantly declined. Helene submitted that apart from the opinion of Dr Reid, upon which the primary judge did not rely, there was “no adequate evidentiary basis upon which the Court could find that at the time of making the November 2012 will the deceased understood the extent of the property of which she was disposing, was aware of the persons who may have a claim on her testamentary bounty or was able to weigh the relative strengths of such persons’ claim”.

12. [105]

    Helene relied upon those submissions also in relation to the February 2013 will, made three months later. She said that there was no evidence that the change of executor was made at the deceased’s behest, and that even if the Court had been satisfied of such an instruction having been given, it would not follow that testamentary capacity had been proven. Helene was critical of the statements of conclusion by the primary judge, which did not identify the basis relied upon. Finally, Helene submitted that there was, given Mr Palmer’s unsatisfactory evidence, only the file note made by him as direct evidence as to Mrs Bush’s knowledge and approval of the contents of the will. The November 2012 and February 2013 wills were subject to the limited file notes referred to above, identifying the new executors. Helene was critical of the reliance by the primary judge of the file note of May 2013 as evidence that Mrs Bush understood and was satisfied by that disposition. She said that the file note was not capable, without more, of satisfying the Court that Mrs Bush knew and approved of the contents of the will.

13. [106]

    Throughout Helene’s written submissions, reliance was placed upon statements made by the primary judge during the course of the hearing. Thus, for example, Helene relied upon a statement made during the hearing that Mr Palmer “couldn’t possibly” have read through the whole will and that the primary judge had accepted that the confusion of names, twice, was significant.

14. [107]

    NSW Trustee & Guardian emphasised that the decision of the primary judge was not expressed to turn on onus, but rather on a positive finding made after considering all the evidence.

15. [108]

    It drew attention to the positive evidence that Ella had lived an independent life until late 2014, cooking, doing her own laundry, gardening, and other recreational activities, supported by the evidence of her local vicars and of Mrs Kelly and her daughter. It pointed to the fact that Ella’s granddaughters had visited her in 2011 as sustaining the inference that she had been able to comprehend their claims upon her estate. “Knowing that they exist and having contact with them one would be entitled to draw the inference from that that she would have been able to determine whether they were natural objects of the bounty in her will”. It submitted that in circumstances where none of Helene’s sisters, or other persons who might have been able to give evidence in support of her case had been called, and their absence was unexplained, Helene’s case should be scrutinised with care: Plunkett v Bull (1915) 19 CLR 544.

16. [109]

    NSW Trustee and Guardian submitted that there was no medical evidence that Ella’s cognitive functioning deteriorated between June 2011 and November 2011, from which it was said that the lay evidence was sufficient to sustain the finding of capacity in November 2011. It submitted that questions of capacity were not “in the air” but were required to be determined by reference to the particular instrument, as had been said in Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [411]-[416].

17. [110]

    In relation to the 2012 will, NSW Trustee & Guardian relied on the fact that Ella had corrected the error she had made the previous year but otherwise reconfirmed her testamentary intentions as “strongly suggest[ing] that she had capacity in November 2012”. The same submission was made in relation to the 2013 will, following Ted’s death.

18. [111]

    In written and oral submissions, NSW Trustee and Guardian discounted the evidence of the medical experts, who had not seen Ella, and relied on the deference to be given to the primary judge as stated by Lord Hoffmann in Biogen Inc v Medeva plc [1997] RPC 1 at 45:

Consideration

1. [112]

   In Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 290, Gleeson CJ said with the agreement of Handley AJA that:

2. [113]

   That passage has been regularly followed and applied, including by Giles JA and Brownie AJA in Perpetual Trustee v Baker [1999] NSWCA 244 at [2]. In the present litigation, the critical issues were whether Ella understood the extent of her estate, and was able to comprehend and appreciate the claims upon that estate.

3. [114]

   It was common ground, at first instance and on appeal, that the evidence raised a doubt as to Ella’s testamentary capacity, which resulted in a shifting of the evidentiary onus onto NSW Trustee and Guardian. Also in Re Griffith Gleeson CJ said:

4. [115]

   This passage was reproduced by the primary judge, and subjected to the following observation made by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [65]:

5. [116]

   The point made by Lord Hoffmann in Biogen Inc v Medeva plc is important and apt. Judicial reasons are invariably incomplete: see for example Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [65]. The application of Lord Hoffmann’s observation in a case such as the present is somewhat different from the approach taken on appeal to credit-based findings.

6. [117]

   It is easy to see that where there is diametrically opposed testimonial evidence relating to a finding of primary fact in the real world, then an appellate court ought to give considerable deference to the trial judge who saw and heard the testimony of the witnesses as it was given. It was in this context that tests involving a failure to use or a misuse of the trial judge’s advantage, or acting upon evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable” were distilled: see for example Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 and 482-483.

7. [118]

   There was no issue of credit in the trial that gave rise to this appeal. Nor, for the purposes of this appeal, were there disputed findings of primary fact, as opposed to the ultimate conclusion of testamentary capacity. There were at most questions of reliability (especially of the evidence of the elderly Mrs Kelly). Because of the way in which each of the three impugned wills had been prepared, the evidence which bore upon Ella’s capacity was relatively indirect. Evidence of recollections which is untied to a particular event (such as a wedding or birthday or a visit to a holiday house) is commonly difficult accurately to date. And evidence in general terms of Ella’s mental state over a period of time is apt to be a generalised recollection, and likewise difficult to tie to a particular period. Because of the nature of the legal issue, the trial judge’s evaluative conclusion of Ella’s capacity in November 2011, November 2012 and February 2013 was based upon a weighing of the lay and expert and documentary evidence which was apt to turn on nuances which are not readily captured in the transcript or in his Honour’s reasons. That is not intended as a criticism, but rather as a self-inhibiting reminder as to the need for caution.

8. [119]

   We do not accept the principal submission advanced by Helene, which was that the primary judge failed correctly to apply the onus. His Honour stated that the onus lay with NSW Trustee and Guardian as the propounder of the three most recent wills, and his Honour’s conclusions were not expressed to turn on onus. It is true that the statements at [32], [105] and [128] are a little awkwardly formulated, but the reasons are to be read as a whole, and the dispositive portions are on a fair reading based on a conclusion on testamentary capacity based on the evidence as a whole, rather than any question of onus. That point emerges most clearly in relation to the 2013 will, in which his Honour’s conclusion commenced with “Taking all these matters into consideration” and expressed a positive finding of satisfaction that it was more likely than not that Ella had capacity.

9. [120]

   We also do not accept that it is valid to base a submission upon what was said by the primary judge in a summary form in a later judgment as to costs. What his Honour wrote in December does not alter the character of the reasoning in the judgment delivered in November, especially given that there was no occasion in the costs judgment for his Honour to do more than summarise the outcome, as opposed to the precise reasoning process.

10. [121]

    Further, it is inappropriate to refer to statements made during the course of hearing in support of a conclusion of error in the ultimate findings. Exchanges during argument are not (unless they have been incorporated) part of a judge’s reasons: Gilles v Palmieri [2016] NSWCA 219 at [19]. A judge’s reasons may be expected to reflect a considered view, based on the whole of the evidence, rather than the initial impressions which may be recorded in an exchange during the hearing: see Coote v Kelly; Northam v Kelly [2017] NSWCA 192 at [117]. Indeed, as Gummow and Hayne JJ said in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [111]:

11. [122]

    We also reject ground 6. In light of all of the evidence, the primary judge was perfectly entitled to conclude that Ella knew and approved of her will. It was accepted that she appreciated that she was making a will. The three impugned wills identify the same beneficiaries, in each case in accordance with the instructions recorded in Mr Palmer’s filenote of 26 October 2011. The simplicity and rationality of those dispositions can be used to support the conclusion that she knew and approved them.

12. [123]

    However, we do consider that there is force in grounds 2, 3, 4 and 5 of the appeal, which may conveniently be addressed together.

13. [124]

    There were a series of unfortunate events leading to the execution of the November 2011 will. First, there is the unchallenged evidence of Helene that Ella’s decision to retain Mr Palmer was because her existing solicitors – who had drafted the will in June 2011 appointing Helene as executrix and leaving her estate to her granddaughters – had told her that she “needed to give them some sort of papers before they would do it”. On one view, that suggests an understandable measure of caution in advising an elderly client who wished to alter a recently made will so as to exclude all her surviving family.

14. [125]

    Of course, evidence of the conversation falls to be assessed against the letter dated 19 October 2011 from WA Baxter & Co to Mr Palmer. That letter itself is problematic. It stated that “it would appear that her Will and Power of Attorney are out of date”. But Ella had executed a will in June 2011, and it seems unlikely in the extreme that the author of the letter could have been aware of that will. We appreciate that mistakes happen, but the conclusion we draw is that in the course of discussing her testamentary affairs with a firm of solicitors in October 2011, Ella failed to disclose that she had executed a will 4 months earlier in favour of Helene and her sisters.

15. [126]

    The primary judge reproduced the conversation to which Helene referred and the letter from WA Baxter & Co at [59] and [61], but did not address the matters summarised above which flow from that evidence.

16. [127]

    Secondly, as a result of Ella’s decision to see Mr Palmer, rather than her existing solicitors, there was no reason to think that Mr Palmer became aware of the change Ella made to her will, replacing her five granddaughters by the two charities. The primary judge formed the view, having seen Mr Palmer give evidence, that he could not draw any conclusions about the inquiries Mr Palmer made of Ella concerning the nature and extent of her estate and the proper objects of her bounty: at [89]. New South Wales Trustee and Guardian did not seek to disturb that finding. The primary judge was only prepared to find that there had been no manifestation of cognitive impairment on the three occasions on which he saw Ella: at [90].

17. [128]

    Thirdly, there is the nomination of Cecil as Ella’s executor. The primary judge said that that “obviously bespeaks some lack of cognitive function”: at [100]. The fact that it occurred twice – once in October when Ella instructed Mr Palmer and once in November when the will was executed is perhaps a minor factor not expressly taken into account by the primary judge.

18. [129]

    How then is evidence to be adduced to demonstrate that Ella sufficiently understood the claims of her granddaughters in circumstances where she was so mistaken in relation to her brother? Ordinarily, that evidence would come from the solicitor who advised her when making her will. A short file note to the effect that she appreciated that she owned two parcels of land and had a significant amount of money in the bank, and that she was conscious that her new will would leave no assets to her grandchildren, even her oldest granddaughter who had lived in the household for three years after her parents had separated, would be apt to suffice. But that is singularly unavailable in the facts of this appeal.

19. [130]

    The primary judge did not, in this dispositive portion of his reasons, rely on the lay evidence, except to say that Ella “presented to the outside world as being attentive and alert”. There is no reason to doubt the evidence of the vicars and of Mrs Maisie and Robyn Kelly to that effect. However, his Honour did not address why he discounted a deal of the unchallenged evidence of Helene to the effect that Ella was not attentive and alert (for example, in relation to the disappearance of the Harley Davidson and her treatment of her dog in late 2011).

20. [131]

    Further, all of the lay witnesses confirmed that they had not discussed matters concerning Ella’s estate. Even Mrs Kelly, who was appointed her enduring guardian, accepted that the two had never talked about her will, her assets or her bank accounts. It is true that Mrs Kelly told Dr Harradine in September 2012 that Ella had “quite significant financial assets”, but contrary to a submission put by NSW Trustee and Guardian, this is not probative of Ella being aware of the extent of her assets in late 2011 or 2012; indeed, it is something Mrs Kelly probably learned years before.

21. [132]

    His Honour disregarded the specific instance of Ella’s unawareness of her money (the occasion concerning purchasing a dress) as too late, but appears not to have had regard to the instances which Helene said had occurred in late 2011 of Ella saying “My money keeps going missing”. It may be accepted that a self-sufficient person who presented as attentive and alert is a matter which is relevant to establishing capacity. But we respectfully agree with Helene’s submissions that it was insufficient, in the facts of this case.

22. [133]

    The primary judge discounted the evidence of both experts on the basis that they had never met Ella. Contrary to some of the submissions advanced by Helene, there is no difficulty with his Honour having done so. His Honour’s approach accords with what was said by Hodgson JA in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65]:

23. [134]

    That passage has regularly been endorsed, including by this Court in Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [196] and by the English Court of Appeal in Simon v Byford [2014] EWCA Civ 280; [2014] WTLR 1097 at [17].

24. [135]

    Although this was not a point included in his Honour’s concluding paragraphs, on one view his Honour also appears to have discounted Professor Rosenfeld’s evidence on the basis that there was no medical evidence as to Ella’s condition between June and November 2011. The primary judge appears to have been critical of Professor Rosenfeld relying on Helene’s account. But her account was not challenged in any significant way in cross-examination. Further, it is known that by 2012 there was a body of evidence of cognitive impairment, and in our view it was open to infer that the onset of that impairment was not immediate but more gradual and had commenced by October and November 2011.

25. [136]

    There is also the difficulty that it was not merely Professor Rosenfeld whose opinion was contrary to Ella’s capacity in November 2011. We do not consider that Dr Reid’s opinion, which was that there was significant cognitive deficit at this stage, could suffice to discharge the evidentiary onus borne by NSW Trustee and Guardian. To be fair, the primary judge did not rely on Dr Reid’s opinion for that purpose. However, the dispositive part of his Honour’s reasons did not address the fact that both medical experts were in substance of the view that they could not be satisfied that Ella had capacity at this time.

26. [137]

    Little turns on the finding that Helene’s sisters had visited Ella occasionally. NSW Trustee and Guardian urged acceptance of the finding that there had been contact, but in that case it is difficult to draw an inference with any confidence that Ella had been able to appreciate their claims, given the absence of explanation for Ella’s decision to alter her will. In any event, the evidence is very sparse, particularly as to when the visits occurred.

27. [138]

    The primary judge candidly acknowledged that the factor which he found most persuasive in reaching a conclusion of capacity was “the simplicity of the will and its evidently rational disposition of Mrs Bush’s estate”. The simplicity of the will is undoubtedly relevant to a conclusion that the testatrix knew and approved of the will: see for example Tobin v Ezekiel at [46]-[47]. But the fact that the testatrix made a simple will leaving her estate to two charities does not logically bear upon the issue of whether she had capacity to comprehend or appreciate the claims of her granddaughters.

28. [139]

    We can well understand the rationality of Ella’s will. She scarcely saw any of her granddaughters in her day to day life, especially those other than Helene, whilst she seems to have participated fairly actively in her local church (at least until Easter 2012) and her local cancer support group, and was well placed to conclude that they were worthy charities for her estate when her immediate family members had predeceased her. But once again, the fact that the testamentary intention was rational does not, with respect, bear on the anterior question whether in reaching that intention Ella had capacity to appreciate the claims of her granddaughters.

29. [140]

    There is a further problem in relying on the will itself in order to sustain an inference of capacity. The will itself names her long deceased brother as her executor. It is that fact more than any other which casts a doubt over Ella’s capacity. It is difficult to see how, as a matter of ordinary logic, one may have regard to other provisions in what was almost the simplest will imaginable in order to displace the inference from nominating a long deceased brother as executor. Indeed, in one sense the simplicity of the will tends to emphasise the magnitude of the error in her choice of executor – there was so little to be said, and yet Ella was badly wrong as to one of only three material aspects of the will.

30. [141]

    NSW Trustee and Guardian relied on what was said by Isaacs J in Bailey v Bailey (1924) 34 CLR 558 at 571 to the effect that one “material circumstance” to which regard could be had was “the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions”. This was an element of the seventh of twelve “working propositions” reproduced by Isaacs J at 570-572. But his Honour was there dealing with the threshold question of the proponent of a will establishing a prima facie case of sound mind, memory and understanding, after which the onus shifted to the party impeaching the will. His Honour was not dealing with the case where a doubt had already been established as to capacity such as to require the person propounding it to establish capacity.

31. [142]

    The parties engaged in a lively debate as to whether one could have regard to the particular will in a case such as this on the issue of capacity (as NSW Trustee and Guardian submitted) or whether capacity was something to be determined independently of the particular will executed by the deceased (as Helene submitted). We do not consider it is helpful to resolve that more general issue. For the purposes of this appeal, it suffices to accept Helene’s submission that it is circular to rely upon the simplicity of the November 2011 will in order to discharge the onus of proof borne by NSW Trustee and Guardian by reason of the nomination of a long-deceased brother as the executor.

32. [143]

    In light of the matters referred to above, we respectfully conclude that the finding of capacity by the primary judge should be set aside. In terms of the nine matters summarised in Helen’s written submissions which are reproduced above, we accept that the lay evidence considered as a whole was not capable of establishing that Ella knew the extent of her estate and appreciated the claims upon it, for the lay evidence adduced by NSW Trustee and Guardian did not go to such issues, while Helene’s evidence did. The position is reinforced by the fact that both experts were of the view that they could not be satisfied that a testatrix who nominated a long-deceased brother as executor was a testatrix who appreciated the claims upon her estate. We accept that the conversation between Ella and Helene about her changing her will and the inference that Mr Palmer had not seen a manifestation of cognitive deficit point in favour of capacity, but we do not consider that these circumstances can suffice to satisfy the evidentiary onus. The position resembles that stated by the High Court in Worth v Clasohm (1952) 86 CLR 439 at 451 (reversing the trial judge’s conclusion that the testatrix lacked capacity):

33. [144]

    The above reflects our acceptance of the 4th, 5th and 8th points made by Helene. In addition, in relation to the point on which the primary judge placed greatest weight, we respectfully consider that his Honour erred in relying on the simplicity of the will (which is the 9th point made by Helene).

34. [145]

    It was not suggested that this Court was unable to, or should not, make a finding itself, in the light of the evidence. Given the limited cross-examination of Helene, and the acknowledged limitations on the evidence of all of the other lay witnesses, and the concordance of expert evidence, it is possible to do so. The appropriate finding is that Ella lacked capacity in November 2011, NSW Trustee and Guardian not having discharged its onus.

35. [146]

    The primary judge proceeded on the basis that the finding as to capacity in 2011 was relevant to a finding in 2012. The reasons already given mean that Helene’s success on ground 2 impacts ground 3. There are also the following matters bearing upon Ella’s capacity in November 2012.

36. [147]

    Save for one thing, all of the evidence in 2012 pointed against a finding of capacity 12 months later. Reverend Carter and Robyn had left Wee Waa, and Rev Gabbott had ceased to visit her at home, so their evidence could not assist in discharging the onus borne by New South Wales Trustee and Guardian.

37. [148]

    There was even less evidence of how Ella had behaved when she saw Mr Palmer once more to execute a new will. Helene drove Ella to Narrabri on 12 November and took her to Mr Palmer’s offices. She gave unchallenged evidence that Ella left his office not more than five minutes later.

38. [149]

    Ella herself had ceased attending church, save at Easter and Christmas. The latter consideration may have been affected by the loss of her driver’s licence, but whatever the cause, it is a matter which we give considerable weight in the circumstances of this case (noting that the church was to be left half of Ella’s estate), although it was not mentioned by the primary judge.

39. [150]

    And there was a great deal of medical evidence of cognitive impairment. There was the evidence of Dr Harradine, who had examined her the previous month, whose report is reproduced in full above. He referred to her “severe cognitive impairment”, and that she had “no awareness that she has any memory problems or cognitive impairment”, and “little awareness or insight” into her Alzheimer’s dementia. She was unable to draw a clock showing 10 past 11.

40. [151]

    Of course, the November 2012 will nominated her living brother as executor. The primary judge relied on this as indicating that Ella was aware of the need to change her will. However, there was unchallenged evidence from Helene that not only had she told Ella that she needed to have someone who was alive as her executor, but also that their conversation had continued:

41. [152]

    The nomination of Edward as executor in those circumstances is not greatly more probative of capacity than the appointment of her deceased brother. Edward died less than 4 weeks later. Once again, the conclusion to be drawn is that NSW Trustee & Guardian has failed to discharge its onus, resulting in a finding that Ella lacked capacity to make the November 2011 will.

42. [153]

    Substantially the same reasons lead to the conclusion that Ella lacked capacity in February 2013. The finding was, once again, expressed to follow from the conclusion that Ella had capacity three months earlier, and for that reason is impugned by what has already been said.

43. [154]

    True it is that this is the only one of the three challenged wills where an appropriate executor has been nominated. We acknowledge that the fact that Ella executed a new will is suggestive of capacity. The fact that more care appears to have been taken with this will than the previous two, insofar as the erroneous clause concerning maintenance education and advancement was deleted, suggests greater attention on the part of the solicitor, but is neutral on the issue of Ella’s capacity.

44. [155]

    However, it is quite plain that there were real doubts as to Ella’s capacity in February 2013, such that the onus lay on NSW Trustee and Guardian to prove that she was aware of the nature and extent of her estate and those who had claims upon it. The primary judge appears to have relied upon inferences drawn from what was recorded in the May 2013 file note. However, given the failure to cross-examine Helene on that note, and Helene’s evidence of her conversations with Ella confirm an absence of capacity, we respectfully disagree that reliance could be placed upon those inferences. The entirety of the contemporaneous medical evidence tends against a conclusion of capacity, as does the evidence of Helene that Ella was unaware that her husband’s lottery winnings were her property (the primary judge, with respect correctly, found the latter was unavailable in relation to Ella’s capacity to make the November 2011 will).

45. [156]

    The finding of capacity in February 2013 should be set aside, and once again it should be found that New South Wales Trustee and Guardian has not discharged its onus of establishing Ella’s capacity.

Conclusion and orders

1. [157]

   It may be helpful to summarise the conclusions reached. It is no small thing to conclude that Ella lacked testamentary capacity to make her wills in November 2011, November 2012 and February 2013. We also acknowledge that the primary judge had the advantage of seeing the witnesses give evidence, and that his Honour’s reasons carefully summarise most of the contemporaneous documents as well as the considerable lay and expert evidence bearing on the issue.

2. [158]

   But this Court must conduct a real review of the entirety of the evidence, in light of which we have concluded that the primary judge appears not to have had regard to significant portions of Helene’s unchallenged evidence of Ella’s declining capacity, and to have disregarded or given no weight to Dr Reid’s opinion in relation to the November 2011 will. The primary judge plainly formed a favourable view of the evidence of Ms Robyn Kelly and Rev Carter and Rev Gabbott. However, it is one thing for a person to convey the appearance of full cognitive competence in ordinary conversations; it is another for the person to have testamentary capacity. Their evidence is unavailable in respect of the later two wills, or else is in stark contrast with the medical evidence, and with the largely unchallenged evidence of Helene. Further to the above, we respectfully consider that the primary judge erred in relying on the simplicity of the will as probative of Ella’s capacity.

3. [159]

   It follows that the appeal should be allowed, all of the substantive orders made by the primary judge on 16 December 2016 in each of the three matters set aside, and in lieu thereof there be a grant of probate of the Ella’s will dated 8 June 2011 to Helene and the matter referred to the registrar to complete the grant. Helene made it clear that if there were a grant of probate in her favour, she did not press her application for family provision, so that proceeding should be dismissed. The application for leave to appeal brought by NSW Trustee and Guardian, on the question of costs, does not arise. The parties should be given an opportunity to be heard as to the appropriate costs orders in this Court and at first instance.

4. [160]

   The following formal orders should be made: