Re Estates Croft, deceased

An elderly, retired couple (June and Warwick Croft) long married but for many years living apart, in an unusual but stable domestic relationship, each experienced a decline in mental health, with dramatic consequences, in or about 2012-2013.

A fall, and hospitalisation, of the wife (on 23 December 2012), depriving her of the physical capacity for self-management, provided an occasion for a daughter (Leah), long resentful of her father, to intervene as a self-expressed “advocate” for her mother - shepherding her mother (discharged from hospital into the daughter’s care on 2 January 2013) to “take control” of her own finances.

In a practical sense, the daughter paved the way for the mother (through solicitors, Turnbull Hill Lawyers) effectively to declare an end to her marriage; to demand from her husband a division of matrimonial property (much of which was held in joint tenancy between husband and wife or separately owned); and to threaten proceedings in the Family Court of Australia for a formal property settlement.

The idea that his marriage had “irretrievably broken down”, and that his wife no longer valued their marriage, was beyond the immediate comprehension of the unsuspecting husband and father. He maintained a belief that his wife continued to adhere to their marital relationship, as did he.

In this unsettled state of affairs a family comprising the elderly couple and their six adult daughters split into two factions. One daughter (Anna), who worked in the family business in close consultation with the father, adhered to the father. The “advocate” (Leah) and a sister (Elisabeth) actively pressed a case for the mother, with the remaining three (Naomi, Ruth and Esther) loosely aligned with the mother but marginalised in terms of contemporaneous knowledge of events.

Instead of convening a family conference at which different perspectives could be shared, and conflicting narratives exposed to mature reflection, with competing claims to management of “family property” made the subject of informal negotiation, both wife and husband took to the law. Leah limited her father’s access to her mother, his wife. He retained solicitors (Hunt & Hunt Lawyers) to represent him. Correspondence between solicitors for the old couple became their only regular means of communication throughout 2013.

Hunt & Hunt’s first letter (dated 17 January 2013) was addressed to the Leah, reminding her of the duration of her parents’ marriage; protesting her exclusion of her father from contact with his wife, her mother; and requesting that arrangements be made for such contact, and consultations with the husband/father about ongoing care of the wife, to occur.

Leah was unresponsive, although she did speak to her father by telephone. Hunt & Hunt sent a follow-up letter dated 30 January 2013, unaware that Turnbull Hill Lawyers had prepared a letter dated 25 January 2013 addressed to the husband personally. Leah remained unresponsive.

Leah had retained Turnbull Hill Lawyers to act for her mother on 3 January 2018. Rebecca Flick of that office had conferred with the mother (in relation to family law questions) on 10 January 2013. On or about 25 January 2013 Turnbull Hill Lawyers sent their opening letter to the husband personally – advising him that there had been “an irreconcilable breakdown” in his relationship with his wife; inviting a property settlement without litigation; requesting information about property; and advising him to seek legal advice.

Hunt & Hunt’s response, by a letter dated 4 February 2013, invited Turnbull Hill Lawyers to obtain a medical certificate as to the wife’s current mental capacity, indicating at the same time that instructions were being obtained to respond in greater detail to Turnbull Hill Lawyers’ opening letter.

Further correspondence ensued, although Turnbull Hill Lawyers were resistant to a request for an early mediation.

This led to steps taken by or on behalf of the wife for: (a) execution by the wife (on 28 May 2013) of a will which excluded the husband and marginalised the daughter who supported him (Anna), favouring the remaining daughters; (b) execution by the wife on the same date (28 May 2013) of a Real Property Act “Transfer Severing Joint Tenancy” (subsequently registered as dealing number AH775405) in respect of the two real estate properties (the family home at Beecroft occupied by the husband, and a home unit at North Ryde occupied by the wife) held in co-ownership, notice of which Transfer was given to the husband by the Registrar General under cover of a letter dated 17 June 2013; and (c) commencement of Family Court property settlement proceedings, on 24 September 2013, by Leah as attorney and case manager for the wife.

It also led, in a reactive chain of events, to execution by the husband (on 11 October 2013) of a will which excluded the wife, favoured the supportive daughter (Anna), and marginalised all other daughters.

With the deaths of the older couple (the wife in January 2014, the husband two years later) all this led, in time, to hotly contested probate proceedings in which the factionalised daughters, on one side or the other, alleged that the wills respectively made by their parents (on 28 May and 11 October 2013) were invalid for a want of testamentary capacity.

Anna and her husband David propound Warwick’s will dated 11 October 2013. Elisabeth propounds June’s will dated 28 May 2013.

The two sets of probate proceedings – one referable to the estate of June, the other referable to the estate of Warwick – were, by order of the Court, heard together with evidence in each set of proceedings to be evidence in the other, so far as material.

In adversarial terms, Anna and her husband are alone on one side of the record; Elisabeth (separately represented) and Leah and Esther (jointly represented) are on the other. All six siblings (including Naomi and Ruth, not formally joined in the proceedings) have given evidence. All are bound by the outcome of the proceedings in accordance with the principle explained in Osborne v Smith (1960) 105 CLR 153 at 158-159.

Although named in June’s will dated 28 May 2013 as an executrix, Naomi renounced probate.

The parties are agreed that June’s estate has an estimated value of about $1.9 million; Warwick’s estate has an estimated value of about $3.2 million; and, consequently, their parents’ pool of assets has an estimated value of about $5.1 million.

Neither estate has been, or is expected to be, the subject of a claim for family provision relief under chapter 3 of the Succession Act 2006 NSW.

No party has sought to challenge the validity of June’s severance of the joint tenancies between her and Warwick in their co-ownership of the Beecroft and North Ryde properties. The effect of that is that it is agreed that half the value of each property is attributed to each estate, notwithstanding that June predeceased Warwick. In relation to each property, severance of the joint tenancy was recorded on the register maintained under the Real Property Act 1900 NSW.

June Elizabeth Honeywood Croft (“June”) was born in June 1930 and died on 15 January 2014, aged 83 years, leaving:

Warwick Croft (“Warwick”) was born in August 1930 and died on 4 January 2016, aged 85 years, leaving:

Court House Service Station Pty Ltd is, and at all material times was, the owner of commercial premises at Newtown from which it conducts a retail business trading as “Cohoe Marine Products”. The business is a modest one. The land upon which it is conducted is the Croft family’s single most valuable asset, held through the company, jointly owned by Warwick and June.

June and Warwick were married in November 1953. Their marriage was never dissolved, and no application was ever made for its dissolution, although (within four months of June’s death) property settlement proceedings were commenced in the Family Court of Australia in June’s name.

Until June’s retirement from the Newtown business (in or about 2006) Warwick saw her most days, picking her up for work in the morning and dropping her home at night. After her retirement, their regular pattern was that Warwick would visit June at her residence (by that time, or thereabouts, the home unit at North Ryde) for a modest meal once a week.

Leah, and the sisters who supported her advocacy of June’s interests, regarded that level of contact, and Warwick’s close management of June’s funds, with dismissive contempt.

The North Ryde home unit was purchased in early 2007, at or about or shortly after the time of June’s retirement. At about the same time, in February 2007, June appointed Elisabeth and Leah as her enduring guardians and executed an enduring power of attorney in their favour.

Whatever the precise nature of the personal relationship between June and Warwick leading up to her hospitalisation on 23 December 2012, they appear consistently to have remained friends in a relationship which, despite their living apart, was, before mid-2012 or thereabouts, recognised within the family as a loving relationship. Theirs was not a lifestyle that would commend itself to everybody. Nevertheless, they appear to have reached an accommodation about their social arrangements.

With advancing age, and the onset of mental illness, their financial arrangements became an issue, at least from June’s perspective, at or about the time of June’s fall.

Predisposed against her father, and inclined to believe her parents’ marriage was such an empty farce as to be effectively at an end, Leah (with Elisabeth’s assistance in the conduct of company and title searches) set about isolating Warwick, retaining solicitors to act for June, and justifying all as fulfilment of an expressed desire on the part of June to control her own finances.

Leah’s predisposition against her father was not assisted by confidential “mother and daughter” conversations between her and June in 2012 in which, as Leah recalls, June expressed herself as having been offended by Warwick asking her whether she had sent prostitutes to him.

Warwick’s inappropriate question appears to have occurred at a time when he and June were both beginning a slide into dementia, and there may have been tensions between them as they negotiated terms of ongoing intimacy. In any event, reflecting on the fact that both her parents were “quite religious”, Leah appears to have been shocked by June’s account of Warwick’s reference to prostitutes, and she was herself vicariously offended.

A full appreciation of her parents’ slide into dementia was not then had by Leah. She was perhaps more judgemental of her father’s failings, and of her parents’ marriage generally, then she might have been with greater insight into their subjective circumstances.

Of the six children (all daughters) of the marriage between June and Warwick:

Anna has worked in the Newtown business full-time since about 1992, gradually taking over management of the business from her parents. June retired from the business in or about 2006. Warwick retired from the business in 2010.

Anna’s active involvement in the business, to the practical exclusion of her siblings, appears to have been a major source of unarticulated friction between the siblings, and (from June’s perspective) a source of simmering friction between Anna and June. Anna was the administrative conduit through which Warwick saw to payment of expenses on behalf of June, and (in amounts apparently regarded by her as insufficient) provided June with spending money.

Another, more fundamental source of friction within the family (the exposed tip of an iceberg of discontent) was Warwick’s dedication to a hobby of racing pigeons conducted from the family home in Beecroft. The daughters who, in these proceedings, lined up against Anna continue to resent their father’s pursuit of his hobby, apparently at the expense of June’s health.

June suffered from a chronic lung condition attributed to her exposure to Warwick’s pigeons. It led her, on medical advice, to move out of the family home, ultimately settling in North Ryde. Warwick continued to live at Beecroft, alone, with his pigeons.

June’s will dated 24 June 1975 provided as follows:

June’s will dated 28 May 2013 provided as follows:

Each of these wills is apparently rational, regular on its face and duly executed. Both wills were prepared, and witnessed, by a solicitor.

Warwick’s will dated 26 May 2008 provided as follows:

Warwick’s will dated 11 October 2013 provided as follows:

Each of these wills is apparently rational, regular on its face and duly executed. Both wills were prepared, and witnessed, by a solicitor.

All parties expressly limited the questions in dispute between them to:

Although all parties explored the Croft family’s finances, affairs and relationships over an extended period before, and after, the date of each will under challenge – at times giving the impression of a case of broader ambit than a contest about testamentary capacity – all parties disclaimed a broader case. In particular, no party advanced a case of undue influence, in probate (Winter v Crichton (1991) 23 NSWLR 116 at 121-122) or in equity (Bridgewater v Leahy (1998) 194 CLR 457 at [62]-[63]).

All parties articulated their case (and the medico-legal experts from whom they adduced evidence explained their opinions) primarily by reference to the elements of testamentary capacity traditionally associated with the following extract from Banks v Goodfellow (1870) LR 5 QB, 549 at 565:

Attention was also drawn to recent observations made by the Court of Appeal in Singh v Singh [2018] NSWCA 30 at [140]-145] and Carr v Homersham [2018] NSWCA 65 at [8] and [46], as well as a host of other authorities.

Reference was made to Bailey v Bailey (1924) 34 CLR 558 at 570 et seq and Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-707 for convenient summaries of the principles governing onus of proof, presumptions and concerns about delusional states of mind; but:

Having extracted a passage from Gleeson CJ’s judgment in Re Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 290, Basten JA made the following observations in Carr v Homersham [2018] NSWCA 65 at [46]-[47]:

The parties are agreed that that the ultimate question for the Court is whether, acting judicially, it is satisfied that a will propounded is the last will of a free and capable testator: Tobin v Ezekiel (2012) 83 NSWLR 757 at [44]; Woodley-Page v Symons (1987) 217 ALR 25 at 35.

The following extract from Worth v Clasohm (1952) 86 CLR 439 at 452-453 encapsulates the general character of the current proceedings:

Particular reference was also made to the observations of Windeyer J in Kerr v Badran [2004] NSWSC 735 at [48]-[50] – affirmed by the Court of Appeal in Zorbas v Sidiropoulous (No. 2) [2009] NSWSC 197 at [64]-[65], [94] and [99] – about the need to allow latitude to older people in assessing their knowledge of their assets:

In adopting those observations (set in broader observations by Windeyer J) in Zorbas v City Sidiropoulous (No. 2) [2009] NSWCA 197 at [65], Hodgson JA made the following observations which also bear upon the current proceedings:

In concurring with Hodgson JA, Young JA made the following observations of his own ([2009] NSWCA 197 at [94]):

Bergin CJ in Eq concurred with Hodgson JA and with the additional reasons of Young JA: [2009] NSWCA 197 at [99].

A similar observation was made recently by the Court of Appeal in Carr v Homersham [2018] NSWCA 65 at [8] where Basten JA (with whom Macfarlan and Leeming JJA agreed) said: “No high level of precision is required to be demonstrated in relation to the testator’s knowledge of her property as at the date of execution of the will”.

On the significance or otherwise of delusions or the like from which a testator may have suffered, the following observations by Latham CJ in Bull v Fulton (1942) 66 CLR 295 at 299 may be taken as an authoritative guide:

If (which I doubt) it is necessary to define with precision what is meant by a “delusion”, I proceed upon an assumption that a delusion is a fixed and permanent belief in facts which do not exist and which the person who believes them cannot be reasoned out of: Bull v Fulton (1942) 66 CLR 295 at 339; Worth v Clasohm (1952) 86 CLR 439 at 449; Re Estate of Hodges (1988)14 NSWLR 698 at 706. Ultimately, however, particular terminology depends for meaning on context. In evidence adduced in these proceedings the word “delusion” was sometimes used interchangeably with “hallucination” or similar words of description.

Reference was also made to observations of Gleeson CJ (with whom Handley JA agreed) and Kirby P in Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284.

In that case Gleeson CJ wrote the following (at 291):

In a judgment dissenting on the facts of the particular case, but not the legal principles to be applied, Kirby P wrote the following (at 295-296):

It is not disputed that both June and Warwick at the time they executed their respective 2013 wills were suffering from some form of mental illness – perhaps characterised, albeit loosely, as “dementia” – but:

Evidence was adduced from family members about their respective encounters with June and Warwick in late 2012, and the greater part of 2013; but heavy emphasis was placed on the evidence of their respective solicitors (the family law lawyer Rebecca Flick and the probate lawyer Natalie Power for June; Ian Miller and his assistant Cheryl Po for Warwick) and the evidence of each side’s medico-legal experts (Associate Professor Tuly Rosenfeld, retained by Anna; and Dr Jane Loni, retained by Leah et al) drew attention to particular features of the evidence.

Of particular note in relation to an assessment of June’s testamentary capacity on 28 May 2013 is that, on her own initiative, on 27 May 2013 she wrote out in her own hand instructions for how, and why, she wanted her estate to be shared between her daughters.

Of particular note upon an assessment of Warwick’s testamentary capacity on 11 October 2013 is that, throughout a period extending from 2 October 2013 to 15 November 2013, he was engaged in a process of giving detailed instructions about his family, relationships and property to the family law solicitor (Cheryl Po) working under the supervision of his solicitor, Ian Hunt.

Each of the solicitors who took instructions from June or Warwick (whether in relation to family law proceedings or the preparation and execution of a will) was mindful of a need for caution in assessing his or her client’s capacity to give instructions, and each solicitor conscientiously endeavoured (albeit in a manner, perhaps, not beyond criticism) to be satisfied that the client possessed the requisite capacity. Each of them had to negotiate circumstances in which their client was living in a factionalised family; each of them took precautions to ensure that the voice heard, and acted upon, was the voice of the client.

Mr Miller also had broader experience of Warwick than a solicitor-client relationship. He and Warwick were neighbours, and they knew each other socially from regular contact at local church services. Warwick was a Baptist who regularly strayed into the local Anglican church for its Sunday evening service, where Mr Miller could be found as a parishioner.

Each of June and Warwick executed a will which was rationally responsive to personal experience of “family” in 2012/2013 (Warwick favouring Anna, June favouring their other daughters), yet not biased to the extent of excluding the less favoured daughters (Anna in the case of June, her sisters in the case of Warwick).

Although the wisdom of a threat or institution of formal family law proceedings in 2013 is open to doubt, and June might be thought to have lacked a full appreciation of her autonomy in financial matters (including about $50,000 in a term deposit in her name), her perception that she lacked control over her finances was not wholly unjustified. In a practical sense, she was dependent upon Warwick and Anna in the management of her finances. When told of June’s death in early 2014, Warwick is reported to have said, reflectively, that he should have given her more money.

Although Warwick might from time to time have overstepped the mark of propriety in his criticism of June and daughters other than Anna, his shock at being told that his marriage was allegedly no longer viable, his appreciation of Anna’s loyalty and assistance, and his perception of a need to execute a fresh will in response to steps taken, or likely to have been taken, by June were all understandable by standards of common behaviour.

The wills made in 2013 addressed facts subjectively assessed, but objectively verifiable from each will-maker’s perspective.

I am satisfied that each of the witnesses called to give evidence in these proceedings gave evidence honestly and to the best of his or her ability. Nevertheless, I approach all the evidence with a caution responsive to the facts that:

The family members closest to the centre of events (Anna, her husband, their daughter; Leah, her husband; and Elisabeth) were perhaps too close to events to be wholly objective. Those more on the periphery (Mr Stephenson, Naomi, Ruth and Esther) were more measured in the evidence they gave.

Two observations can be made by way of illustration of this.

First, Anna and her husband strained to find innocent explanations for aberrant statements of Warwick that others, less identified with his interests, elevated to the status of a delusion; in the event, the fact that Warwick freely executed a will that made some provision (albeit not much) for each of his adversarial daughters, despite his angst about their perceived interference with his marriage, suggests that that he did not lack a capacity for objective reasoning in documenting his testamentary intentions.

Secondly, on the other hand, Esther was prepared to concede that, between the time she saw them in January/February 2012 and when she next saw them in July 2012, both Warwick and June had suffered a deterioration in their mental health.

She was also prepared to concede (as I apprehend may have been the case) that a failure on the part of all six of the daughters of Warwick and June to appreciate fully the fact and nature of that deterioration may have rendered them secondary victims of the dementia their parents suffered.

Each daughter appears to have acted on a comfortable assumption that she was “doing the right thing”, sustained by a failure to consult the whole family and by too high an opinion of what a resort to law can achieve.

A problem with assessing June’s understanding of the extent of the property she was disposing of by her will is that, throughout the period between January 2013 (when Turnbull Hill lawyers were retained on her behalf) and 28 May 2013 (when her will was made), she was, to an extent not easily determined in retrospect, engaged with her daughters Leah and Elisabeth, and with her solicitors, in a process of discovery designed to crystallise everybody’s understanding of her property, hitherto managed by Warwick with the assistance of Anna.

Allowance must be made for the fact that, for several years before 2013, June was not directly or actively involved in management of her property. Inquiries had to be made about the nature and extent of her property on that account alone.

Within the office of Turnbull Hill Lawyers, Rebecca Flick (as a family law specialist) referred June to Natalie Power (who practised predominantly in wills and estates) on 12 March 2013. Ms Power interviewed June, first, on 22 March 2013 and, secondly, on 28 May 2013.

At the first interview she was given by June a two-page document (mostly typed, but with an end note in Leah’s handwriting) prepared by a Leah, she says, with June in close proximity; that document summarised personal details of June and her daughters, June’s property interests, June’s allocation of “keepsake jewellery” between her daughters; and contained sundry other information bearing upon the preparation of the will. It did not speak in detail about June’s intention as to distribution of her property generally, or identify any person as a prospective executor.

At the second interview, June gave to Ms Power a document (written in her own hand and authorship of which Leah disclaimed) in the following terms:

After inquiry (including consultation with Dr Katrina Tiller) June’s solicitors were ultimately satisfied of her capacity to give instructions for the severance of joint tenancies, and the execution of a will. They were less confident about June’s mental capacity by the time, in September 2013, family court proceedings were commenced.

At the time June executed her will on 28 May 2013 Turnbull Hill had in their possession a medical report dated 9 May 2013 prepared by Dr Tiller, June’s general practitioner.

That report (the product not only of earlier contact but of an examination on 9 May 2013) included the following observations:

Dr Tiller’s report did not address directly whether June had will making capacity at the time of examination, although that question was plainly within contemplation.

In her attendance upon June for the purpose of confirming June’s instructions and executing a will, Ms Power took care to interrogate June about her property, her family and her testamentary intentions.

In the light of this evidence, taken as a whole, I am satisfied that June had the requisite testamentary capacity to make her will dated 28 May 2013, and that that document is the last will of a free and capable testatrix.

Ongoing deterioration in June’s mental health throughout 2013, culminating in Leah’s institution of the Family Court proceedings commenced in September 2013, needs to be taken into account in assessing June’s capacity at the time she executed her will; but, taking a snapshot at that critical time, I am comfortably satisfied that June possessed the requisite capacity to make her will.

The form of the will; the manner of its preparation and execution; the fact and terms of June’s handwritten note of 27 May 2013; the measured rationality of the Will’s provisions from June’s perspective of tensions within her family; and the evidence of those (lay and legal) who observed her all point in the direction of a finding of testamentary capacity.

On an independent review of the facts, viewed from Warwick’s perspective of tensions within the family, substantially the same finding should be made about Warwick’s testamentary capacity at the time he executed his will dated 11 October 2013. I am satisfied that that will is the last will of a free and capable testator.

The form of the will; the manner of its preparation and execution; the measured rationality of its provisions from Warwick’s perspective; Mr Miller’s personal familiarity with Warwick over an extended period of time; Ms Po’s familiarity with Warwick during the course of preparation of his Family Court affidavit; and the evidence of Warwick’s brother-in-law Darrell Stephenson of regularity in Warwick’s behaviour all point in the direction of a finding of testamentary capacity.

I accept the evidence of Messrs Miller and Stephenson and Ms Po that Warwick presented himself to them as rational, without the aberrant behaviour observed by others, including counsel retained to act for Warwick in the unfolding family law disputation.

Warwick’s will is a rational, measured response to the domestic disharmony that had confronted him over the previous 11 months or so.

I accept that Warwick’s mental health deteriorated from about mid-2012 and that, between that time and when he made his will, he, from time to time, was prone to hallucinations about prostitutes, brothels and other things remote from his reality. A clear, documented illustration of such a thought pattern can be found in a telephone conversation between Warwick and his daughter Naomi on 30 January 2013.

In that conversation, as documented in a contemporaneous note and elaborated by Naomi in her affidavit, Warwick accused Naomi’s siblings of being “sluts, whores and prostitutes”; later in the conversation, he accused June of sending prostitutes to knock on his door and to ring his doorbell late at night.

Naomi’s evidence is that Warwick’s wild talk on this occasion was totally out of character for the man she knew as her father.

However: (a) Naomi’s account of the conversation makes it plain that Warwick’s allegations against June and his daughters were closely related to his complaint that his daughters had taken June away without consultation with him, and without making arrangements for him to be involved in caring for her; (b) Naomi deposed to having had no subsequent conversation with Warwick in which he used foul language of the type she encountered in their telephone conversation; and (c) unbeknown to Naomi, at the time of their telephone conversation Warwick had not long received the letter dated 25 January 2013 of Turnbull Hill Lawyers confronting him with their distressing allegation that there had been “an irreconcilable breakdown” in his marriage.

Warwick’s propensity to descend to gutter talk about his wife and adversarial daughters appears, at least in part, to have been a function of emotional stress associated with what appeared to him (not without grounds in objective reality) to be a threat to his domestic tranquillity orchestrated by Leah.

The evidence of Warwick’s brother-in-law, Darrell Stephenson, is important in establishing a different perspective of Warwick than that which (without critical information about the nature and depth of what Warwick was suffering) Naomi experienced in her dramatic telephone conversation with her father.

Mr Stephenson deposed to regular, day-to-day contact with Warwick following June’s discharge from hospital in December 2012, and he accompanied Warwick to Leah’s residence when, in February 2013,Warwick was allowed to visit June. He deposed to Warwick’s distress about the legal action taken against him, and of how it left Warwick upset, perplexed and worried. Nevertheless, he also deposed to Warwick routinely engaging in regular social activities without irregular behaviour.

Mr Stephenson observed, also, that throughout 2013 Warwick was living alone in the Beecroft property; he cooked his own food and was able to look after his own physical needs; he appeared able to manage his own financial affairs; and he continued to drive.

Warwick’s Family Court affidavit was sworn on 15 November 2013. His execution of it was witnessed by Ms Po, the solicitor charged with its preparation over the preceding six weeks or so. She deposed to her observations of Warwick in terms confirmatory of his capacity to provide detailed instructions to her.

The affidavit includes (in paragraph 61) the following statement by Warwick, which illustrates his perspective of family life during 2013:

A passing attempt was made to criticise the correctness of Warwick’s disclosure of his financial circumstances in his affidavit – an attempt to suggest that he was not perhaps in full command of his mental faculties – but that came to nothing of significance. The form and content of the affidavit is overwhelmingly inconsistent with any blanket attribution of incapacity to Warwick.

In the end, the lay evidence and the form and content of Warwick’s will provide confirmation that he possessed the requisite capacity to make his will.

Re June. Drs Rosenfeld and Lonie agreed that June is likely to have understood the purpose and nature of a will at the time she executed her will, and that she is likely to have retained knowledge of her beneficiaries.

They also agreed that June was unlikely to have understood the complexity or precise value of her estate, or its constituent parts, at the time she executed the will, despite having some knowledge of her assets. This is not altogether surprising, however, given June’s retirement from the family business in 2006 and her practical dependency upon Warwick and Anna for management of her financial affairs.

The experts’ joint report contains a passage which records an agreement on the part of Drs Rosenfeld and Lonie that, as a result of her dementia, June is unlikely to have been able to weigh up, in a cognitive sense, the relevant issues in formulating her testamentary wishes at the time she executed her will. However, if I accept (as I do) that June’s handwritten note dated 27 May 2013 was a product of her own mind, that document, in my opinion, sufficiently demonstrates a capacity to comprehend and appreciate the claims on her bounty and to weigh up those claims in light of the facts as June had observed them through the lens of Leah.

The experts agreed that the medical evidence does not suggest that June was suffering from delusional thought patterns within the context of her dementia, or that her affections were poisoned as a result of delusional thoughts.

Satisfied that there are factual explanations sufficient to counterbalance the experts’ reservations about June’s capacity, I am comfortably satisfied in acceptance of the evidence of lay and legal witnesses that June had sufficient capacity to execute her will.

Re Warwick. Drs Rosenfeld and Lonie agreed that, at the time he executed his will, Warwick would have understood the nature of the act of making a will and its effects; and that he would have understood the extent of the property of which he was disposing.

Their disagreement focused upon whether Warwick would have been able to comprehend and appreciate the claims on his bounty without his affections being poisoned, and his sense of right being perverted, by the dementia from which, they agreed, he suffered.

Their disagreement focused, more particularly, upon the extent of Warwick’s cognitive impairment at the time he executed his will, accepting that: (a) there was likely to have been a variability in his cognitive ability at various times; and (b) his cognitive ability may have been affected, from time to time, by medication prescribed for him.

The forensic medicine, without the benefit of clinical examination of Warwick, is inconclusive. It directs attention back: (a) to the lay evidence of those (including his solicitors) who deposed to regular, rational, measured dealings with Warwick; (b) to the form and content of Warwick’s will; and (c) to the measured and reasoned character of the will as a response to the facts objectively observable from Warwick’s perspective.

Satisfied that there are factual explanations sufficient to counterbalance concerns about Warwick’s hallucinations and occasional wild talk, I am comfortably satisfied in acceptance of the evidence of lay and legal witnesses that Warwick had sufficient capacity to execute his will.

I am satisfied that the respective wills of June and Warwick are each the last will of a free and capable will-maker.

Accordingly, subject to allowing the parties an opportunity to make submissions about the form of the orders to be made, and costs, I propose to make orders to the effect of those here set out.

In the proceedings numbered 2016/00033995 relating to June’s estate, I propose to make orders to the following effect:

In the proceedings numbered 2016/00048899 relating to Warwick’s estate, I propose to make orders to the following effect:

I will entertain submissions about the costs of the proceedings.