Robertson v Barker

These reasons follow a five day trial of a Probate action about the validity of the last Will of Mabel (also known as Margaret) Claire Hogan (the deceased), which Will she executed on 29 October 2016. The original of that Will is Ex P1 in the proceedings and is propounded by the Plaintiff, Janette Ruth Robertson. It is not a case about the validity of the deceased’s penultimate Will, which she executed on 3 May 2013. The original of that Will is Ex D1 and it is propounded as the last valid Will of the deceased by the Defendants, Penelope Jane Barker and Andrew John Barker. The Plaintiff does not dispute that, when made, the 2013 Will was a valid and effective Will, but she asserts that it was revoked by the later Will. (The deceased also made a Will, which she executed on 13 August 2010, but neither party propounded that Will and the original has not been produced to the Court.) I shall refer to each of the Wills by the year of its execution without prejudgment as to its validity.

The deceased died on 25 June 2019, at 96 years of age, leaving property in New South Wales.

Whilst when appropriate, I shall refer to the parties as “the Plaintiff” or “the Defendants”, I also shall refer to family members, after introduction, by his, or her, first name. I do so without intending to convey undue familiarity or disrespect, and for clarity and convenience. I shall return to the relationships of the parties, other persons, and the deceased, later in these reasons.

The Defendants and their mother, Valmai Barker (to whom I shall refer later), filed a general caveat on 13 August 2019 and a Withdrawal of Caveat on 18 October 2019. A letter dated 25 October 2019, enclosing the Withdrawal of Caveat, noted that it was done “without admission and for the purpose of avoiding the ongoing costs of this matter”: Ex TBNM1/226.

Then, on 21 February 2020, the Defendants, alone, filed another general caveat. A general caveat is one filed under Supreme Court Rules 1970 (NSW) Part 78 rule 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167.

The Plaintiff, who is a niece of the deceased, commenced these proceedings by Statement of Claim filed on 22 April 2020. She sought Probate in solemn form of the 2016 Will and consequential orders.

The Defendants, who are described as “step-grandchildren” of the deceased, filed a Defence and a Cross Claim on 5 May 2020. In the Defence, they admitted, relevantly, that the deceased died on 25 June 2019 leaving property in New South Wales; that the deceased signed the 2016 Will; that the Plaintiff is the executor named in the 2016 Will; and that notice of her application was published in the NSW Online Registry on 25 November 2019. They denied, however, that the 2016 Will “is a valid testamentary document” and further asserted that “it is not liable to be admitted to probate”.

In the Cross Claim, the Defendants sought an order that Probate in solemn form of the 2013 Will be granted to Carolyn Joyce Fletcher (now known as Carolyn Joyce Dale), one of the two executors, (with Janette) named in that Will. In the alternative, they sought an order that Letters of Administration, with the 2013 Will annexed in solemn form, be granted “to such other person as the Court sees fit”. No such person was nominated.

The Defendants launched their attack on the 2016 Will in the Cross-Claim, rather than in the Defence, asserting that the deceased lacked testamentary capacity when she made the 2016 Will; that the 2016 Will “was executed in suspicious circumstances”; and that the deceased did not know and approve of the contents of the 2016 Will.

In summary, the particulars of testamentary incapacity were that the deceased was then 93 years old; that she was frail; that she repeated herself in conversations and forgot the subject of the conversations as they took place; that she did not appreciate the nature and extent of her assets; and that she was not able to, and did not, in fact, appreciate the persons who had a claim on her testamentary bounty.

On suspicious circumstances, the Defendants relied upon the second limb of the rule in Barry v Butlin (1838) 2 Moo PC 480. They argued that the Plaintiff had provided the instructions to the solicitor, Mr Wayne Hodgins, who had drafted the 2016 Will; that Mr Hodgins had no direct contact with the deceased prior to preparing the 2016 Will; that the Plaintiff and Stuart Robertson were in the vicinity, and in the company, of the deceased before, partially during, and after, the 2016 Will was executed; that Mr Hodgins came to be retained by reason of his association with the Plaintiff and Stuart Robertson; and that prior to the making of the 2016 Will, Mr Hodgins had not performed any legal work for the deceased. They pointed to what was said to be the abrupt, unnatural, and dramatic, change from the 2013 and 2010 Wills, in relation to the devolution of the deceased’s residuary estate.

The particulars of lack of the knowledge and approval repeated the suspicious circumstances; that the deceased did not articulate any reasons for reducing the entitlement of the Defendants, or of Carolyn; and that the deceased had poor hearing.

In her Defence to the Cross-Claim, the Plaintiff responded to the allegations and set out a summary of material facts surrounding the making, and execution, of the 2016 Will. It will be necessary to refer to the evidence on this topic later in these reasons.

Whilst there was no dispute that the circumstances of the case were such as to require the Plaintiff, as propounder, to prove, affirmatively, that the 2016 Will was executed by the deceased with the requisite testamentary capacity and with knowledge and approval, the Plaintiff contended that she had sufficiently discharged the evidential burden of proof, and had established, affirmatively, the validity of the 2016 Will.

As stated, the parties agreed that if the 2016 Will is not the last valid Will of the deceased, then there should be a grant in solemn form of Probate (or letters of administration) of the 2013 Will. Yet, the Plaintiff did not seek to propound the 2013 Will, in the alternative, even though she is one of the two executors named in it. At the commencement of the proceedings, the Court raised this matter, and counsel for the Plaintiff stated that “I expect that she would wish to take the grant”: Tcpt, 23 November 2011, p 01(43-44). Senior counsel for the Defendants thought that Carolyn would also seek a grant: Tcpt, 23 November 2021, p 02(04-06).

Subsequently, during the hearing, the parties agreed that if there were to be a grant of Probate in solemn form of the 2013 Will, the grant should be made to both Janette and Carolyn, as the executors named in that Will. For reasons that follow, this will not be necessary.

Notice of the intended application for probate of the 2013 Will was published by the Defendants on the NSW Online Registry website on 25 November 2021, that is to say, during the hearing. However, the notice referred to a grant being made to Carolyn only: Ex D4.

It can be seen, from the above, that the legal representatives and the Court, remembered, and proceeded upon the basis of what had been written by Sir J P Wilde in Parton v Johnson (1868) LR 1 P and D 549 at 551:

The central questions that needed to be determined, and my conclusions, are:

The hearing commenced on 23 November 2021, continued until 25 November 2021, and then resumed on 30 November 2021 and continued until 1 December 2021. Mr C P Birtles of counsel appeared for the Plaintiff whilst Mr G Waugh SC, with Mr H Morrison of counsel, appeared for the Defendants. It was listed for 6 days and was completed within that time.

Prior to the hearing, the parties had discussed, and agreed upon, the order of witnesses. This necessitated some flexibility as witnesses were called to suit his, or her, convenience. Some of the witnesses were unable to attend in person and the oral evidence of these witnesses was given audio-visually, using the Microsoft Teams platform. Whilst audio-visual link technology is imperfect, this part of the hearing, also, was able to be achieved in an orderly manner and with the co-operation of the legal representatives. Since the outbreak of COVID-19, almost 2 years ago, the Court has heard many cases using this technology. There was no suggestion of any prejudice to either party or compromise to the quality of justice.

On the fourth day of the hearing, counsel provided an agreed list of error corrections to the transcript that have been included in it as error corrections.

The co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated, and that the matter proceeded without interruption, is to be commended. The Court was greatly assisted by that approach, and also by the written and oral submissions made by counsel at the hearing.

In order to set the dispute in its proper context, it is first necessary to set out an overview of the background which led to the dispute. As with all probate disputes, a proper understanding of the events is critical.

Some of the information referred to below, is taken from a family tree (Ex TBNM1/257) which I do not understand to be controversial. If any facts set out hereunder are controversial, I am satisfied that they have been established by the evidence relied upon in the proceedings.

The deceased was born in September 1922 and was 94 years old when she executed the 2016 Will; she was about 91 years old when she executed the 2013 Will; and about 88 years old when she made the 2010 Will. Clearly, she was an elderly will-maker at the time she executed each of her Wills, although there was no suggestion that she did not have testamentary capacity at the time she made the 2013 Will or when she made the 2010 Will.

Little evidence was given, by either of the parties, about the deceased’s life or about her character. For example, the Court knows nothing about her education, employment history, or her personality traits. There was, however, some information provided about her.

The deceased was married once only. Her husband, John Kennedy Hogan (also known as Ken), died on 28 August 2009. They were married in September 1955. At the date of his death, they had been married for about 54 years. There were no children of their marriage. However, Ken had two children from a previous marriage, being Valmai and Julie McPhee (who predeceased the deceased). Lachlan Xavier McPhee is a child of Julie.

After Ken was admitted into care in 2007, the deceased continued to live in their matrimonial home, in Eleebana, a suburb of the City of Lake Macquarie, in New South Wales, about 18 kilometres from Newcastle's central business district, on her own.

Ken made a Will in which the deceased was the sole executor and universal legatee. This Court granted Probate of his Will to the deceased on 23 August 2010. Following the grant of Probate, title to the Eleebana property was transmitted into the sole name of the deceased.

The deceased had three siblings being Frederick Powell, Joan Powell, and Robert Baden Powell. None of them is alive. Only the date of death of Robert, being 21 September 2017, was the subject of evidence. It appears that he, alone, had children, being Janette and Carolyn.

As stated, Penelope and Andrew are the two children of Valmai. Jago Ray Barker is a child of Andrew; Mia Rose Robertson is a child of Penelope.

The deceased appointed Janette as her enduring Attorney and guardian under a Power of Attorney and Appointment of Enduring Guardian, each dated 21 March 2006 (Ex TBNM1/2-8). Both documents were registered with the office of the Registrar General of NSW on 27 March 2006 and remained valid until they were said to have been “updated” in February 2017.

Although the Power of Attorney is referred to in some transactional documents, there is no evidence that it was actually used by the Plaintiff, as Attorney, to enter into any relevant transactions on the part of the deceased. (It will be necessary to return to the contents of the Power of Attorney later in these reasons.)

The Plaintiff gave evidence that the deceased “maintained responsibility for cleaning the home, arranging maintenance with tradespersons and tending the gardens. She arranged, and paid, for someone to regularly mow her lawn… [she] attended to her own laundry and prepared her own meals”. Any suggestion that the deceased lived in “squalor” was rejected by a number of witnesses.

There are numerous copy bills and payment receipts from 2014 and 2015, copy Commonwealth Bank of Australia term deposit statements for the period August 2013 to July 2016, and copy Commonwealth Bank account statements for the period 2 May 2014 and 1 January 2015, of the deceased, in the documentary evidence, which were said to demonstrate her ability to look after her finances in these periods: Ex TBNM1/41-173.

On 5 September 2015, Janette attended the Eleebana property. It was the deceased’s birthday and arrangements had been made by Janette and Carolyn to take her to lunch. However, a short time after her arrival there, the deceased asked Janette to take a look at the top of her right leg. Thereafter, the deceased was taken to John Hunter Hospital.

(There is a dispute about whether Janette took the deceased to the Hospital alone or whether Carolyn went with her. Nothing really turns on the dispute, but it was the subject of cross-examination and was referred to in submissions. I shall return to the dispute of fact later in these reasons.)

Following her arrival, the deceased was immediately admitted to the Infectious Disease Ward of John Hunter Hospital with a diagnosis of an open wound and a necrotic patch located on her upper inner right thigh. She was also noted to have a second smaller closed necrotic patch mid right thigh. She remained in John Hunter Hospital until 29 September 2015 (Ex TBM1/1) when she was transferred to Belmont Hospital, where she remained until 26 October 2015 (Ex TBM1/356).

On 16 September 2015, Janette made an application for the deceased to be admitted to Maroba Nursing Home (Maroba), an aged care facility, in Waratah, a suburb of Newcastle. The application was in writing and is likely to have been signed by Janette. In the “Relationship” section after signature, a tick was placed under “Power of Attorney”, and next to “Other”, the words “Enduring Guardian” appear. In an earlier section of the Application, Janette was identified as the deceased’s niece: Ex D2.

On 26 October 2015, following her treatment at Belmont Hospital, the deceased was admitted to Maroba, at an initial entry cost of $269,000. It was the nursing home in which her brother, Robert, had been a resident since January 2013. Although initially placed in a shared room, when a single room became available in February 2016, the deceased moved into that room, at an additional cost of $130,000.

In about November 2015, Janette obtained a written Valuation Report for the Eleebana property, being one for “Market Valuation for Proposed Sale Purposes”. Subject to certain qualifications and assumptions referred to, the valuation stated that “the range of value would be between $1,500,000 to $1,800,000…”.

Janette gave evidence that the deceased had requested her to sell the Eleebana property, telling her that she did not like the idea of it being rented. It was listed for auction in either late November, or early December, 2015, but it did not sell, having been passed in prior to reaching the reserve price. A sales campaign followed in the months thereafter, and it was listed for sale in September 2016. Ultimately, it was sold for $1,435,000, with the sale being completed on 18 January 2017.

Janette informed some family members of the fact that the deceased wished to sell the Eleebana property. Valmai and Penelope expressed disappointment that it was being listed for sale. There is no evidence that either told the Plaintiff that she did not think that the deceased had capacity to enter into, or understand, the sale transaction. Valmai simply asked “Why is my Dad’s house being sold. Why can’t Margaret just rent it out for a while instead of selling it?”

Following the initial auction, when the Eleebana property was passed in, the Plaintiff and her husband, Andrew, with Carolyn and Rod, all of whom seemed to have attended the auction, went out for coffee together. The only evidence of the discussion whilst at coffee, given by Carolyn, was “our proposed Christmas lunch plans”.

It would appear that Rankin Ellison lawyers were originally retained to act on the sale. However, on 19 January 2016, Wilson & Co Lawyers wrote to that firm with an authority to transfer the sale file to their firm. The deceased signed a general authority dated 17 February 2016 to release the file to the Plaintiff: Ex D3.

Later in 2016, upon instructions from the Plaintiff, Mr Wayne John Hodgins came to act for the deceased, as vendor, on the sale. However, it was the deceased, herself, who signed the Contracts for Sale of the Eleebana property on 25 November 2016 and the Transfer: Ex TBNM1/186-219 and Ex D2/39-70.

On the same date, the deceased also signed a Permanent Resident Agreement with Maroba. The deceased’s signature on this document was witnessed by Janette: Ex TBNM1/175-185.

Mr Hodgins sent a letter dated 18 January 2017 to the deceased “c/- Janette Robertson” confirming the sale of the Eleebana property, attaching a Settlement Statement and an invoice for acting on the sale (noting that his invoice was paid out of the proceeds of sale): Ex D2/73-76. Janette deposited all of the net proceeds of sale in a bank account. It was not suggested that Janette had misused her position, vis-à-vis the deceased, to arrange the sale of the Eleebana property or that she had, in any way, misapplied the proceeds of sale: Tcpt, 24 November 2021, p 193(15-29).

I am satisfied that the sale of the Eleebana property was entered into as a result of the instructions given to Janette, by the deceased, and that the deceased signified her approval of the sale by signing the Contract for Sale and the Transfer when that became necessary.

On 25 February 2017, the deceased appointed Janette, and if she vacated the office, her son, Stuart, under an Enduring Power of Attorney, prepared by Mr Hodgins. On the same day, the deceased appointed Janette, and if she vacated the office, her son, Stuart, under an Appointment of Enduring Guardian(s), also prepared by Mr Hodgins. The deceased, naturally, signed each document: Ex TBNM1/22-30. The Plaintiff and Stuart both accepted the appointment on the same day.

Incorporated in the instrument was a certificate, given under s 19 of the Powers of Attorney Act 2003 (NSW), by Mr Hodgins, as a “prescribed person", certifying, inter alia, that he had explained the effect of the Power of Attorney to the deceased and that she appeared to understand its effect. He also certified, in relation to the Appointment of Enduring Guardian(s), that “the appointor … appeared to understand the effect of this instrument and voluntarily executed the instrument in my presence”. (Section 19 sets out formal requirements for the making of an enduring power of attorney.)

Mr Hodgins was not asked any pertinent questions about either Certificate under s 19 in cross-examination, despite its relative closeness in time to the date on which the 2016 Will was executed. It was not suggested that he had made a false certification under s 19.

The deceased remained a resident at Maroba until her death in June 2019.

It is necessary, next, to describe the three testamentary instruments made by the deceased, which were the subject of evidence.

There was no dispute that each of the Wills to which reference has been made satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased; (b) the signature was made by the deceased, in the presence of two, or more, witnesses present at the same time; and (c) two of those witnesses attested and signed the Will in the presence of the deceased.

Each Will had an attestation clause. It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. Although not conclusive, an attestation clause constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80]. In other words, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Weiss v Weiss; Estate of Anita Hildegard Weiss [2020] NSWSC 1064 at [71].

As will be read, each Will is explicitly testamentary in character. Each appoints an executor, or executors, contains incontrovertibly clear specific gifts, and disposes of the entirety of the estate of the deceased.

The last Will in time made by the deceased is the 2016 Will. Relevantly, it provides for:

In the events that have happened, Janette is entitled to the whole of the residuary estate under the 2016 Will. However, that estate can only be calculated after the payment of the pecuniary legacies which total $770,000.

(Robert Baden Powell predeceased the deceased. As the disposition of the pecuniary legacy made to him was wholly ineffective, and as there was no named substitute beneficiary, the Will takes effect as if the undisposed part of the property were part of the residuary estate of the deceased: s 31(1) of the Act.)

There is no dispute that the 2016 Will was professionally drawn. The two attesting witnesses to the deceased’s signature were Mr Hodgins, Solicitor, and Alan Denis Creamer, a Law Clerk. Each has filed two affidavits that were read in the proceedings, and each was cross-examined. It was Mr Hodgins who drafted the 2016 Will.

The penultimate Will made by the deceased was the 2013 Will. It provided for:

There is no dispute that the 2013 Will was also professionally drawn. The two attesting witnesses to the deceased’s signature are Gregory John Wilson, Solicitor, and Sonia Narelle Bowditch, Secretary. Neither made an affidavit of attesting witness. The Court made reference to this matter, a number of times, during the hearing: Tcpt, 23 November 2021, p 01(27-28), Tcpt, 24 November 2021, p 147(27), Tcpt, 25 November 2021, p 247(07-17), Tcpt, 1 December 2021, p 395(50)-396(02). (In light of the orders to be made, this aspect is no longer relevant.)

The Plaintiff, the Defendants, and Carolyn, were to share the residuary estate, equally, under the 2013 Will. However, that estate can only be calculated after the payment of the pecuniary legacies which total $260,000. Under this Will, even though Robert predeceased the deceased, the pecuniary legacy of $200,000 did not fall into residue, as there are two legatees appointed in substitution, being Janette and Carolyn, named in the Will: Cl 3(b)(ii).

A useful table showing the relevant differences between the 2016 Will and the 2013 Will was provided by counsel for Penelope and Andrew and was not the subject of dispute. I shall not set it out in these reasons but it remains part of the Court papers.

The earliest Will made by the deceased in evidence is the 2010 Will. Since there is no dispute about the validity of the 2013 Will (if the 2016 Will is not a valid Will) the 2010 Will made by the deceased is not really relevant in the proceedings, other than to demonstrate the deceased’s testamentary intentions at the time the 2010 Will was made and executed. Only a copy of that Will was produced to the Court: Ex TBNM1/9-13.

Relevantly, the 2010 Will provides:

It can be seen from the above, that the contents of each of the Wills made by the deceased between 2010 and 2016 were similar, although, of course, they were not identical, particularly as to the devolution of the deceased’s residuary estate, the amount of some of the pecuniary legacies, and some of the legatees.

As will be read, the deceased’s explanation for making the change to the clause relating to the disposition of the residuary estate appears to be factually accurate, with the evidence given by the Plaintiff, by each of the Defendants, and by a number of the other witnesses.

According to the Inventory of Property, a copy of which was annexed to Janette's affidavit sworn on 13 December 2019, the deceased's estate, at the date of death, comprised two bank accounts with a combined balance of $1,457,766, and the proceeds of an accommodation bond, with an estimated value of $396,874. The gross value of the estate was estimated to be $1,854,640. There were liabilities being income tax ($4,300), fees due to a firm of accountants ($990) and a reimbursement to the Plaintiff for a payment made on account of funeral expenses ($401), leaving an estate with a net value of $1,848,949.

At the date of hearing, the gross value of the estate was estimated to be $1,883,863: Tcpt, 25 November 2021, p 276(23-29).

There was no evidence given concerning the costs of the proceedings. However, when asked about costs, Mr Birtles informed the Court, from the Bar table, without objection, that Janette’s costs, calculated, on the indemnity basis, were estimated to be $270,000: Tcpt, 25 November 2021, p 210(03-05). Mr Waugh SC informed the Court, from the Bar table, without objection, that the Defendants’ costs, calculated, on the indemnity basis, were estimated to be $189,000: Tcpt, 25 November 2021, p 210(14-15).

Counsel for Janette, without disagreement, stated from the Bar table that the costs of the proceedings should not be dealt with, whatever the result of the proceedings, and the question of how costs should be borne should not be resolved until submissions on costs were made after these reasons are published: Tcpt, 25 November 2021, p 211(23-30).

Naturally, I shall abide the request and not deal with costs in these reasons. However, I commend to the parties that, if possible, further argument, with the obvious increase in costs, and the consequent delay in administering the estate, should be avoided.

The question of the deceased’s testamentary capacity and her knowledge and approval falls to be assessed as at 29 October 2016, when she made the 2016 Will. Naturally, not all of the evidence is limited to that date. Events surrounding the making of the 2016 Will, in that month, in the 12 months before, and the few months after that date, are of some relevance to an evaluation of the deceased’s capacity. It would be wrong to confine the evaluation narrowly to the events of October 2016.

There is no hierarchy in the sources of evidence in Probate suits. The weight to be given to the evidence of any particular witness, whether she, or he, is lay, legal or medical, will depend on a number of factors, including, but not limited to, the independence of the witness; her, or his, knowledge of, and familiarity with, the will-maker; her, or his, experience, training and understanding of testamentary capacity; her, or his, ability to assess the will-maker’s capacity; and the quality of any such assessment made, as appears from amongst other things, contemporaneous notes and records.

This does not mean that there is no wisdom in the view that “the vital evidence is very often not given by medical experts, but is given by experienced lay observers … [and] that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes” (Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [89] (Young JA)); or that an experienced solicitor’s evidence is capable of being “valuable evidence of testamentary capacity” because an “experienced solicitor… gets used to dealing with people making wills and [is] usually attuned to red lights that flash when a person who is of suspect capacity comes across their path”: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).

The following persons played a part as a party, or a witness, or have been referred to, otherwise, in the proceedings. First, I shall identify the witnesses who gave evidence in the Plaintiff’s case. Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined.

The Plaintiff is the niece of the deceased. In her affidavit sworn on 10 June 2020, she described her occupation as “Criminal Investigator”. She explained her job as being “in the area of fraud … So we intercept fraudulent behaviour, investigate fraudulent behaviour, prepare briefs of evidence for the Commonwealth Director of Public Prosecutions, and refer briefs of evidence, and take those matters to court. Sometimes we appear in court”: Tcpt, 24 November 2021, p 158(02-09). She attended the hearing in person.

There was no dispute that Janette, for the whole of her life, had known the deceased. They had a close, and loving, relationship, and there can be, and was, no dispute that she had provided the deceased with significant assistance, particularly after the death of Ken.

Stuart, who is now a solicitor, gave evidence of having known the deceased for the whole of his life, and of the closeness of their relationship. He also gave evidence of his observations of the deceased between 2015 and November 2017. He attended the hearing in person.

Mr Hodgins is a legal practitioner, holding an unrestricted practising certificate with the Law Society of New South Wales. He was admitted to practice in April 1997, having completed a Diploma of Law in July 1996. He also holds a Bachelor of Economics, as well as Financial Planning qualifications (Diploma of Financial Planning). Prior to being admitted as a legal practitioner, he had worked for a number of legal firms, on a full-time basis, whilst he was studying through the Law Extension Committee. He is admitted to practice in New South Wales and in the High Court of Australia. He has practised, principally, in the areas of conveyancing, general and commercial litigation, wills, probate and estates. He stated that, at the date of his affidavit, he had been “drafting Wills and other such documents for some 30 years”. He gave his oral evidence remotely.

Mr Creamer was an administrative assistant in the employ of Mr Hodgins from early 2014 until June 2017. He assisted Mr Hodgins “with the administrative tasks in his law practice and had, on several occasions, attended with Wayne to witness Wills both in the office and outside of the office”. His was a part-time position. He, also, gave his oral evidence remotely.

Leona Faye Letts was a neighbour of the deceased from about July 2003. She and her partner lived directly opposite the Eleebana property. She, too, gave evidence of her observations of the deceased over many years. She gave her oral evidence remotely.

Mr Adrian Corbould is a solicitor practising at Charlestown New South Wales. He gave formal evidence of the persons adversely affected if an order were made as sought by Janette, and the persons who are interested in the estate of the deceased, who have been served with notice of the proceedings. He was not required for cross-examination.

Mr Mark Sloan is a Process server, who gave evidence that he had personally served a Notice of Proceedings on 23 March 2020 on Lachlan Xavier MacPhee. Mr Sloan was not required for cross-examination.

Dr Milton Sales is a registered medical practitioner. He has held the Fellowship of the Royal Australian College of General Practitioners since 1993. He was a Visiting Medical Practitioner at Maroba from 2008 to 2017, where the deceased had been a resident. She continued to attend his rooms at Brunker Road General Practice, Adamstown, up until her death. He gave his oral evidence remotely.

Dr Ben Seckold is a registered medical practitioner. On 3 September 2020, he prepared a letter in which he stated that he had treated the deceased from 10 October 2017 until her death. He was not required for cross-examination, as he did not know the deceased at, or about, the time, she made any of the Wills to which reference has been made.

The affidavit evidence read by the Defendants was, to say the least, limited. Each gave evidence, amongst other things, that she, and he, respectively, did not see the deceased, at any time, during 2016. Each attended the hearing.

Carolyn Joyce Dale (formerly known as Carolyn Joyce Fletcher) is a niece of the deceased. She is Janette’s sister. She gave her evidence orally in Court. Evidence was tendered, without objection, that since 2003, Carolyn has suffered from very substantial white matter demylination, which causes explosive onset headaches and neurological symptoms, including some word finding difficulty and significant anxiety. Due to this injury she has had to take medical retirement from her work: Ex TBNM1/ 31-35. A letter dated 5 November 2021 from Dr Geoffrey K Herkes, Senior Staff Specialist of Neurology at North Shore Hospital, was provided to the Defendants’ solicitor, requesting that Carolyn not be called to give evidence in Court and “especially not be subject to cross-examination due to her neurological disorder”: Ex TBNM1/234.

Carolyn was able to give evidence without any apparent difficulty. The Court, and counsel were aware of her condition, and her cross-examination was not prolonged.

Debbie Jane McArthur is a registered nurse who is now retired. She commenced working as a registered nurse at Maroba in 2001. She retired in 2016. She gave evidence of the meaning of the cognitive impairment scale, to which reference will be made. She annexed a copy of a document headed “Interpretive Cognitive Score” dated 9 November 2015, which she had signed, relating to the deceased.

The parties' single expert, being an expert engaged pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 31.37, who gave evidence, was Dr Shelley Simpson, a highly experienced Senior Clinical Neuropsychologist. She was clearly an “expert witness” within the definition of that expression in UCPR r 31.18. A copy of her report was tendered: Ex JER1.

Dr Simpson gave evidence of the medical conditions from which the deceased was said to have suffered at the time of making the 2016 Will; how, if at all, the medical conditions affected the deceased’s appreciation of the act of making a Will, her appreciation of the nature and value, in general terms, of her estate, her ability to identify the natural objects of her testamentary affection, and her ability to comprehend and appreciate the claims to which she ought to give effect. Her report was grounded, principally, on the medical records concerning the deceased whilst she was being treated at John Hunter Hospital, at Belmont Hospital, and whist the deceased was a resident at Maroba. She did not examine, or otherwise, treat, the deceased in life.

Because of submissions that were made, it is necessary, next, to identify some persons who did not give evidence and refer to documents that were not produced.

As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.

In Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8, Kitto J observed, at 308, that:

Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.

In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.

Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party’s case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.

These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [78] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).

In relation to the non-production of evidence, in Katsilis v Broken Hill Pty Co Limited (1977) 18 ALR 181, Barwick CJ elaborated upon the drawing of inferences in circumstances where an item of potential evidence (in that case, a pick) was destroyed in advance of civil proceedings. Although his Honour dissented in the outcome, the principles referred to by him remain applicable. At 197, his Honour wrote:

In Bridges v Pelly [2001] NSWCA 31, Giles JA (Sheller JA and Brownie AJA agreeing) applied the statement made by Barwick CJ in considering a submission arising from the unavailability of certain notes in a medical negligence case. Giles JA wrote at [52]:

In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]:

I have already identified the witnesses called by each party. There were a number of witnesses not called.

Andrew Robertson is Janette’s husband. Their sons are Stuart, who was born in December 1991 and Lachlan, who was born in September 1993. Each is a great-nephew of the deceased. Neither Andrew Robertson, nor Lachlan, played any part in the proceedings.

The mother of Penelope and Andrew, Valmai, who is said to have been present when Andrew, in particular, went to visit the deceased, in 2015, was not called to give evidence of her observations of the deceased, or of her relationship with the deceased. Even though it was open to the Defendants to call her as a witness to deny the representation made by the deceased, of the reason why Valmai was removed as a beneficiary, if the representation was untrue, they did not do so.

Carolyn’s husband, Rod, did not give evidence. He was identified as having attended Court with her when she gave her evidence and was cross-examined, and who, she stated, had attended with her on all, but one, occasion when she had visited the deceased at the Eleebana home, and also when she visited the deceased at Maroba: Tcpt, 30 November 2021, p 311(33-37).

No explanation was provided for the absence of each of these persons.

The solicitor, Mr Wilson, was not called by either party. However, as will be read, some emails from, and to, him were tendered at the hearing.

Although I have noted the absence of each of these persons, the ultimate conclusions will not be reached upon the basis that these persons were not called to give evidence. There is sufficient evidence, otherwise, for the Court to determine the issues in the proceedings.

In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material tendered, particularly going to the deceased’s medical condition. There were hospital records, some records from Maroba, and some contemporaneous documentary material produced by Mr Hodgins, that was relied upon, and which go to events leading to the execution of the 2016 Will.

There was no dispute as to the authenticity of any of the documents, and all but one, were tendered without objection: Ex TBM (the bundle containing the medical documents) and Ex TBNM1 (the bundle containing the non-medical documents). Other than on one matter, to which Dr Simpson referred, neither party suggested the underlying records were incorrect or unreliable.

There is one issue relating to the failure to produce documents that requires detailed consideration.

A subpoena to produce documents was served on Mr Hodgins on 26 March 2020. It required various documents to be produced, including any will or testamentary instrument, of the deceased; documents being, or purported to be, documents relating to the preparation, or execution, of a will or other testamentary instrument, by, or on behalf of, the deceased; and documents relating to fees charged for services provided in connection with the preparation or execution of a will or other testamentary instrument on behalf of the deceased.

Initially, the only document Mr Hodgins produced, in answer to the subpoena, (other than the original of the 2016 Will), was a tax invoice dated 28 October 2016. He had responded to the subpoena by sending it to the Registrar: Ex TBNM1/238-239. The tax invoice was included in Subpoena Packet S1.

Later, there were some other documents produced by Mr Hodgins to which reference will be made later in these reasons.

Evidence was given by Mr Hodgins, and otherwise, that Janette had attended his office in October 2016 and that she had given him “two sets of - of written notes which were contained in separate sealed envelopes and she also gave me some email correspondence from Greg Wilson, solicitor, together with a copy of a draft will that - that Wilson had prepared for - for Mabel”: Tcpt, 23 November 2021, p 31(30-33).

Mr Hodgins has been unable to locate, and produce, the instructions, said to be in the handwriting of the deceased, provided to him by Janette. He stated that these handwritten instructions had been clipped together, with his own handwritten file note from the day the 2016 Will was executed, but none of these documents have been able to be found either: Tcpt, 23 November 2021, p 38(40)-(42). He gave evidence that the documents were then taken back to his office, on the following Monday, and were put with the file with written instructions for his assistant, Mr Creamer, on what to do with the documents and the Will: Tcpt, 23 November 2021, p 39(04-09). (There was unchallenged evidence given that he had taken notes on the day the 2016 Will was executed.).

Two separate files were opened at his office for the deceased’s matter: Tcpt, 23 November 2021, p 33(25-26). Mr Hodgins explained that there should only have been one file opened, but for some reason, two files had been opened in the matter and given the same file number. The documents were not able to be found in either of the two files: Tcpt, 23 November 2021, p 39(26-30).

Mr Hodgins also stated that he had conducted, what appears to have been, a rigorous and thorough search of the archive files from prior to the date when the 2016 Will was prepared to the present, including files not yet archived, and other files that were being worked on around the same time as the 2016 Will was being prepared. He had been unable to locate the handwritten instructions or his own handwritten notes: Tcpt, 23 November 2021, p 31(39-42).

The absence of knowledge of precisely what had happened to the documents, despite a thorough search of his files, had led Mr Hodgins to conclude that the documents had either been misfiled, lost, or unintentionally destroyed: Tcpt, 23 November 2021, p 39(33-36). Otherwise, he was unable to explain why he no longer had them: Tcpt, 23 November 2021, p 38(45-46).

At the time the 2016 Will was prepared, Mr Hodgins had no process of digitising completed matters and hard copy files were simply stored to be archived in the future: Tcpt, 23 November 2021, p 32(25-28).

It was not suggested to Mr Hodgins that the documents had not existed, or that they had been intentionally destroyed, or suppressed, by him, for the purpose of defeating the Defendants’ defence and the Cross-Claim, or to make proof of the Defendants’ case more arduous. Nor was the Court asked to apply a presumption of mala fides (and I would not, in any event, be prepared to do so).

Senior counsel for the Defendants was critical of Mr Hodgins’ evidence. He emphasised that Mr Hodgins was not able to locate the notes he took when assisting the deceased to execute her 2016 Will and so was unable to rely on contemporaneous records to refresh his memory when giving evidence: Tcpt, 1 December 2021, p 376(07-08). However, as I pointed out, that submission simply means that the evidence given by Mr Hodgins must be looked at with greater care: Tcpt, 1 December 2021, p 376(46-47).

In reaching my conclusion, which follows, I have not forgotten that in addition to the ordinary caution that should accompany a solicitor who acts for an elderly client, there is always the prospect that there might be a challenge to the deceased’s capacity and knowledge and approval of a new Will. However, I am satisfied that Mr Hodgins made a meaningful attempt to document the steps he undertook, with the deceased, to ensure that she knew the meaning and effect of the 2016 Will. Mr Creamer acknowledged that there was a notepad and that Mr Hodgins had written “intermittently” on it.

In my view, there is no reason to disbelieve Mr Hodgins’ evidence on this topic, even though the evidence does not establish precisely how the documents not produced came to be missing, mislaid, or destroyed. He is a solicitor and would understand the serious consequences of deliberately destroying, or suppressing, evidence. He gave evidence of the searches made to find the documents, which searches I am satisfied were reasonable. I consider his evidence on the topic to be reliable.

I have not been persuaded that the loss, or destruction, of the documents was other than accidental. I am unable to find any element of design, conscious repression, or withholding. In those circumstances, there is no reason to draw an adverse inference from the failure to produce the documents. However, I shall remember that, in some respects, Mr Hodgins is without the corroboration which might have been expected in the circumstances of the case. It will be necessary to consider his evidence in association with a forensic analysis of the other available evidence.

I next turn to some legal principles that I have remembered in my assessment of the witnesses who gave evidence.

As in most probate disputes, the personality, state of mind, desires, and prejudices, of the central person, namely the deceased; the relationship with persons for whom she, or he, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).

It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]:

It will be necessary to repeat some of the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence. For the most part, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state, of the deceased at various times.

It is necessary to bear in mind the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549 (Isaacs J); [1915] HCA 14. The deceased is not available, at the hearing, to admit, or directly confirm or deny statements made. That need may even be greater where the person giving evidence of the conversations has a self-interest.

McLelland CJ in Eq cited Plunkett v Bull in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].

Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence of what was said by a deceased person, stating:

Also, I refer to what was written in Wesley v Wesley (1998) 71 SASR 1, by Debelle J at 5:

In Camden v McKenzie [2007] QCA 136, Keane JA observed, at [34], that:

His Honour’s observation was cited, with approval, by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt [2014] NSWCA 47 at [56].

I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79 at [107]; [1989] HCA 60:

Because of submissions of the Defendants as to the evidence of Mr Hodgins in particular, I should also mention an article by the former the Chief Judge at Common Law, P McClellan, entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

More recently, in Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch), Chief ICC Judge Briggs wrote, at [49] – [50]:

(Although there is a reference to “a commercial case”, the propositions which were stated are relevant to most cases, including Probate cases.)

Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mis-state those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]; Evans v Braddock [2015] NSWSC 249 at [74]. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply “emphasises the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645.

Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

I also remember what was said by Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123, at [48]:

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

In Jarman on Wills, 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is said:

If a duly executed will has been professionally prepared and then explained to the maker by an independent, and experienced, solicitor, it may be markedly more difficult to challenge its validity on the grounds of lack of capacity than in a case where those prudent procedures have not been followed.

Mummery LJ (with whom Patten LJ agreed) concluded in Hawes v Burgess [2013] WTLR 453; [2013] EWCA Civ 74, at [57], that it would be “a very strong thing for the judge to find that the deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational”.

Mummery LJ continued at [60]:

In Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA, with whom Beach and Kyrou JJA agreed, wrote:

In Rowe v Sudholz [2019] QSC 306, at [149], Applegarth J did not go as far as Santamaria JA in Veall v Veall, but preferred to say “if the solicitor’s view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little”.

However, even in cases where a solicitor may genuinely believe that the testator had testamentary capacity at the time he, or she, executed the will, that opinion does not displace the Court’s role in deciding whether in fact the testator had testamentary capacity: Ruskey-Fleming v Cook [2013] QSC 142 at [63] and [71]. The weight to be given to the solicitor’s evidence will depend on his, or her, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker’s presentation to the solicitor, and whether there are any “red flags” suggesting a possible challenge to capacity. It will also depend on “the level of enquiry and discussion on the part of the lawyer of, and with, the deceased”: Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [51].

In relation to the medical evidence, particularly the evidence of Dr Simpson, I respectfully refer to what Windeyer J wrote in Revie v Druitt [2005] NSWSC 902 at [34]:

A similar view was expressed, more recently, in Attwell v Morgan [2019] WASC 182, by Curthoys J at [75] - [76]:

I also refer to the statements of Hodgson JA (with whom Young JA and Bergin CJ in Eq agreed) in Zorbas v Sidiropoulous at [65]:

In Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133], the Court (comprising Gleeson, Leeming and Simpson JJA) noted that the trial Judge had “discounted the evidence of both experts on the basis that they had never met [the deceased]. Contrary to some of the submissions advanced by [the appellant, cross-respondent], there is no difficulty with his Honour having done so”.

In relation to the evidence of Dr Simpson, I remember the admonitions to which I have referred.

I shall make findings of fact based upon all of the evidence and shall identify, where necessary, if the sworn evidence of a witness is not accepted, although it will not be possible to include everything in these reasons.

It is necessary next to examine the evidence bearing upon instructions for, and the execution of, the 2016 Will. In most probate suits, and in this one, the outcome of the proceedings turns largely upon an assessment of the evidence of the witnesses. I shall also set out my impression of each of these witnesses.

The first witness called to give evidence was Mr Hodgins, the solicitor who drafted the 2016 Will. On 24 February 2020, Lindsay J had made an order that required him to file and serve an affidavit going to the circumstances of the preparation and execution of the 2016 Will.

Of course, he is an attesting witness to the deceased’s signature on the 2016 Will. As such, he is a witness of the Court: Boyce v Bunce [2015] NSWSC 1924 at [122], [178], [180]. In this regard, Lindsay J wrote at [184]:

I also remember that where, as in this case, the solicitor is aware, prior to meeting with the deceased that there is a potential issue as to capacity, the cautionary words found in a Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98, of Kroft J in the Manitoba Court of Queen's Bench, (at 107) are important:

Mr Hodgins made two affidavits that were read in the proceedings. The first was one sworn on 17 December 2019, being one which might be described as a general form of affidavit of attesting witness going to the due execution of the 2016 Will. It really did no more than authenticate the deceased’s execution of the 2016 Will and set out the formalities of the process involved in its execution.

His second affidavit, which was much longer, was one sworn 19 March 2020 and it included observations bearing upon the deceased’s testamentary capacity and her knowledge and approval. As will be read, the Defendants’ submission, put colloquially, was that his evidence was too good to be true bearing in mind that he did not use contemporaneous documents to assist in his recollection.

I have already set out some of his evidence and my view on that evidence. For reasons to which I shall come, I am satisfied that the Court can safely rely upon all of his evidence.

Mr Hodgins is, and was, in 2016, an experienced legal practitioner. He had experience in the area of wills and estates. He stated that, over the course of his career, he would have drafted “probably thousands” of wills: Tcpt, 23 November 2021, p 34(04). The Defendants did not suggest that he had any interest in the result of the case.

He did not give any specific evidence of any usual, or regular, practice in 2016, in relation to the way in which he took instructions, drafted, or had the wills he had drafted executed. Nor did he give any evidence of a usual practice, in 2016, in relation to questioning an elderly person prior to a will being executed, by for example, asking questions that would elicit general, or other, knowledge.

Mr Hodgins had come to know Janette when he had supervised her son, Stuart, between January 2014 and December 2015, as part of the Practical Legal Training component of his Bachelor of Laws degree at the University of Newcastle.

It is necessary to interpolate, here, that a draft Will had been prepared by another solicitor, Mr Gregory Wilson, in August 2016. There was some email correspondence relating to that draft Will, which, as was pointed out by senior counsel for the Defendants, the affidavit evidence relied upon in the Plaintiff’s case had not addressed. The email correspondence dated 15 and 16 August 2016, between Mr Wilson and the Plaintiff, was amongst the documents produced to the Court by Mr Hodgins in response to the subpoena served upon him, under cover of a letter dated 20 April 2020: Ex TBNM1/246- 248. The documents were included in Subpoena Packet S2.

The parties were granted access to Subpoena Packet S2, which contained a copy of the emails, on 5 November 2021, and the emails were then read by the legal representatives of the Defendants. What is puzzling is why they had not sought access to the subpoena packet before that date: Tcpt, 23 November 2021, p 13(03)-14(22).

In any event, the first email, dated 15 August 2016, was sent at 4:23 p.m., by Mr Wilson to the Plaintiff. It relevantly provided:

The Plaintiff's response, was by email dated 16 August 2016, sent at 7:44 a.m., and was in the following terms:

Mr Wilson's response, was sent at 4:08 p.m. on 16 August 2016, to the Plaintiff, and it relevantly provided:

Whilst I have carefully considered it, I do not accept the submission made by the Defendants that:

While it is correct to submit that neither the affidavits of Mr Hodgins, nor the affidavits of the Plaintiff, referred to the email correspondence between the Plaintiff and Mr Wilson, I find the evidence on this topic given by Mr Hodgins that he had not forgotten it but that “the document wasn't used in preparation of the - the will. That draft - that - that draft document, I didn't use that - I didn't prepare the will from that document”, more probably than not Tcpt, 23 November 2021, p 41 (16-20).

In my view, the contemporaneous emails, not prepared in contemplation of any litigation, tendered by the Defendants without objection, are significant in the Plaintiff’s case. The weight to be given to the representations contained in the emails is not lessened by the absence of Mr Wilson as a witness in the proceedings. My reasons for coming to this conclusion are as follows.

First, there is no reason to doubt that Mr Wilson obtained instructions from the deceased – the contemporaneous emails made a specific representation that he had, and the emails are inconsistent with him having accepted the instructions, from the Plaintiff, to draft a Will. Mr Wilson was a person who had, or might reasonably be supposed to have had, personal knowledge of the asserted fact. It cannot be reasonably supposed that he would incorrectly make that representation, in an email, written to the Plaintiff, at a time when there was no suggestion of litigation. Tellingly, it was not submitted that the deceased had not given instructions to Mr Wilson.

Second, in circumstances where the Plaintiff was to be the sole residuary beneficiary, what appeared in her responsive email to Mr Wilson, namely that the deceased’s instructions had been to give each of the Defendants a larger legacy, was against her own pecuniary interest. Contrary to the Defendants’ submission, that suggests that she was repeating what she understood to be the deceased’s instructions, rather than providing her own instructions to him.

Third, the emails are consistent with the Plaintiff’s affidavit evidence that she had been in contact with Mr Wilson in August 2016. It also demonstrates that by the time the 2016 Will was executed at the end of October 2016 by the deceased she had considered her testamentary intentions over some time.

Fourth, unless there had been a significant change in the deceased’s instructions between the date she gave instructions to Mr Wilson, and the date that Mr Hodgins received the documents given to him by the Plaintiff, it is logical, and unsurprising, that the draft of the 2016 Will would be similar to the draft Will prepared by Mr Wilson.

Fifth, the emails do not cast doubt on the provenance of the instructions given to Mr Hodgins.

Finally, there would have been no plausible reason for the Plaintiff, or for that matter, Mr Hodgins, intentionally, to omit the email chain from her, or his, evidence.

Mr Hodgins gave evidence that on about 20 October 2016, Janette had attended his office in Newcastle and provided him with two sealed envelopes, the 2013 Will, some email correspondence from Mr Wilson, together with handwritten instructions to prepare a new Will and an Enduring Power of Attorney and Guardianship for the deceased: Tcpt, 23 November 2021, p 31(30-33).

The Plaintiff gave evidence that she had suggested to the deceased, on 16 October 2016, that the deceased write out the changes she wished to make to her Will and had left a piece of paper and a pen for her. Then, on 19 October 2016, the deceased gave her a handwritten list and another document which looked like a legal document, and the Plaintiff had delivered both documents to Mr Hodgins on 20 October 2016: Affidavit, Janette Ruth Robertson, 10 June 2020 at par 146-147.

Mr Hodgins said that he believed the handwriting on the written instructions provided to him to be that of the deceased. In cross-examination he stated (Tcpt, 23 November 2021, p 65(05-14)):

Mr Hodgins also gave evidence that after the Plaintiff had given him the documents, he prepared the Will, Power of Attorney and Enduring Guardian documents in accordance with the handwritten instructions. He admitted to having the draft Will, prepared by Mr Wilson, with him when he prepared the 2016 Will: Tcpt, 23 November 2021, p 44(25).

There is some handwriting on the draft Will that was prepared by Mr Wilson. The evidence revealed that Janette had written in a column the relationship of each of the listed beneficiaries to the deceased and that Mr Hodgins had made various amendments and ticks to names and relationships: Tcpt, 23 November 2023, p 67(49) - 68(46).

The draft Will, prepared by Mr Wilson, is, essentially, in the same terms as the 2016 Will prepared by Mr Hodgins, apart from a few minor changes in names and the amount of some of the pecuniary legacies to certain beneficiaries: Tcpt, 23 November 2021, p 42-43. Relevantly, it was not different in relation to the gift of the rest and residue of the deceased’s estate which in each, was one made to the Plaintiff, and in the event that she pre-deceased or did not survive her by 30 days, to be divided equally between Andrew, Stuart and Lachlan Robertson.

Despite the similarities between the draft will prepared by Mr Wilson and the 2016 Will, Mr Hodgins denied that he had prepared the 2016 Will largely upon what had been written in the draft Will. He stated that the 2016 Will was “based on the instructions I was given. The draft is merely similar to those instructions”: Tcpt, 23 November 2021, p 45 (01-02). (Indeed, the language of the 2016 Will was not identical to the draft Will prepared by Mr Wilson and there were other differences, including the change to Carolyn’s last name.)

Mr Hodgins arranged to attend upon the deceased at Maroba on Saturday, 29 October 2016. In addition he made an appointment to visit Robert, who was a resident of Maroba, for whom he had also prepared a Will, an Enduring Power of Attorney, and Guardianship documents.

Mr Hodgins gave evidence that on 29 October 2016, he met with Janette, Stuart, and Mr Creamer in the car park of Maroba. He told Stuart that he would need to ensure that the deceased had capacity to understand the Will and other documents before anything was signed and “if she lacked that capacity I might need to get a doctor’s report as to her capacity for the purposes of signing and understanding the documents”: Affidavit, Wayne John Hodgins, 19 March 2020 at par 15(e). Mr Creamer, and Stuart, in different terms, each corroborated Mr Hodgins’ evidence on this topic.

They all went into Maroba and were then shown to a meeting room by a staff member. Janette and Stuart went to find the deceased and bring her to the meeting room: Tcpt, 23 November 2021, p 59 (39-41).

The deceased entered a short time later on a walking frame. Mr Hodgins noted that apart from using the walking frame, she required no other assistance. This was the first time that he had met the deceased.

After some introductions and pleasantries, Mr Hodgins asked the deceased if she understood why he had come to see her. She replied “To sign my Will and Power of Attorney and Guardianship.”

At the request of Mr Hodgins, Janette and Stuart then left the meeting room, whilst Mr Hodgins and Mr Creamer remained with her. He asked the deceased for her full name, address, date of birth, the day of the week, the month and the year, all of which she answered accurately. He then asked her who the current Prime Minister was, which she answered correctly, adding “I prefer him to Tony Abbott as I did not like his policies, I thought he was trying to take my money.” He also asked her to name the President of the United States of America, which she also answered correctly.

Mr Hodgins stated that after these questions, he came to the conclusion that the deceased was a “spritely and intelligent elderly person who was fully aware of what she was doing and had the capacity to provide instructions regarding her last will and testament.” He added that throughout the conference, the deceased had remained alert and was able to provide clear instructions. In cross-examination, he referred to the deceased as “diminutive but a little feisty, at times”: Tcpt, 23 November 2021, p 70(16-17).

Mr Hodgins then provided the deceased with a copy of the Will that he had prepared and he asked her whether she could read it without glasses, to which the deceased replied that “I don’t need glasses to read.”

It is next convenient to set out his evidence of the discussions with the deceased regarding the nature and value of her estate (Affidavit, Wayne John Hodgins, 19 March 2020 at par 15(n)):

Whilst the suburb in which the Eleebana property was located was said to be Valentine, other evidence revealed that Valentine is a suburb about 3 kilometres away. (I have noted the error in stating the suburb, but I do not share the Defendants’ enthusiasm for the significance of the error.)

Mr Hodgins then began to read the Will to the deceased. He stated, in cross-examination, that the deceased appeared to read the Will as he went through each individual paragraph with her: Tcpt, 23 November 2021, p 62(37-39) and p 63(29-33).

He then interrupted his reading of the Will and had a conversation to the following effect with the deceased (Affidavit, Wayne John Hodgins, 19 March 2020 at par 15(o)):

Mr Hodgins then continued to read the deceased the Will. Once he had read the list of beneficiaries to her, they had a conversation to the following effect:

Mr Hodgins then showed the deceased a copy of her 2013 Will and had a further conversation with her to the following effect:

Mr Hodgins then drew the deceased’s attention to Clause 5 of the 2013 Will and had the following conversation with words to the effect:

Mr Hodgins then asked the deceased whether she was content to sign the Will, to which she replied that she was.

Mr Hodgins then asked Mr Creamer, who was in the room, whether he was ready and willing to witness the deceased’s signature, to which he responded that he was.

The deceased then signed the Will on each page in the presence of Mr Creamer and Mr Hodgins, each of whom thereafter signed the Will as an attesting witness.

Mr Hodgins confirmed the Will had been signed and that he would keep a copy for safekeeping.

After the Will was signed, Janette and Stuart re-entered the room and Mr Hodgins and the deceased looked at the Power of Attorney and Enduring Guardian documents. Importantly, it was the deceased who noted some spelling errors in Janette’s name on both documents, identifying the errors to Mr Hodgins. A spelling error in the spelling of Stuart’s name, in both documents, was also observed, but this time, by him.

Due to the amendments that were required, the deceased was unable to sign the Power of Attorney documents and the Guardianship documents on that day: Tcpt, 23 November 2021, p 34(29) – 35(15). These documents were later signed in February 2017.

Mr Hodgins was in conference with the deceased on 29 October 2016 for around 60-90 minutes. He stated that during the conference the deceased exhibited no signs, other than she was “lucid for the signing of the Will and duration of the conference.”

Subsequently, Mr Hodgins acted for the deceased on a number of other matters. He stated that whilst working on these matters he saw her “three to four times” over that period: Tcpt 23 November 2021, p 34(16). He saw her, first about the 2016 Will; he then met her during the sale of the Eleebana property and, finally, in about February 2017 when she executed the Power of Attorney and Enduring Guardianship documents, as amended, that had been prepared for her earlier: Tcpt, 23 November 2021, p 34(16-21). Mr Hodgins stated that he did not observe any changes in the deceased’s behaviour between each occasion: Tcpt, 23 November 2021, p 35(50) – 36(04).

The Defendants attacked Mr Hodgins’ memory, credibility and competence.

Mr Hodgins agreed that, in preparing his affidavit, he did not have access to either his notes from the meeting on 29 October 2016 or the handwritten notes provided by Janette. His account of the events surrounding the signing of the 2016 Will is based on memory, the 2016 Will, and the draft of the Will prepared by Mr Wilson and provided to him by Janette: Tcpt, 23 November 2021, p 40(05-30).

Mr Hodgins disagreed with the proposition, put to him in cross-examination that it would have been extremely unlikely that he could have remembered all of the details set out in his affidavit. He confirmed that “What I set out in the affidavit is precisely what happened in the room”: Tcpt, 23 November 2021, p 56(20-21).

He also disagreed with the proposition that he had reconstructed the events of 29 October 2016 in his own mind: Tcpt, 23 November 2021, p 59(19-21). He stated that he remembered the day well and that this particular willmaker had known who Obama was and “if she had lack of memory or lack of understanding at the beginning, she would not have been able to answer those questions, at all”: Tcpt, 23 November 2021, p 70(31-33). He stated that “in terms of her demeanour, she remained fairly consistent…. She didn’t have any issues in terms of talking. She talked like a coherent person would talk”: Tcpt, 23 November 2021, p 70(36-40).

By the time the 2016 Will was signed, Mr Hodgins had already received instructions to act for the deceased for the sale of the Eleebana property: Tcpt, 23 November 2021, p 45(26). These instructions came from Janette, as attorney for the deceased, and not from the deceased personally (Tcpt, 23 November 2021, p 45(32-38)) although the deceased, herself, signed the Contracts for sale and the Transfer.

Senior counsel for the Defendants referred to the fact that the 2006 Power of Attorney contained a limitation on the use of powers, such that it was only to be used in cases of the deceased being unable to manage her financial affairs. Clause 8 stated:

When asked if Janette’s use of the 2006 Power of Attorney, with such a limitation, had raised any red flags, in that its use implied that the deceased may have had some problems with her capacity, Mr Hodgins stated that he “hadn’t met Mabel at this stage, I couldn’t make an assessment at that point” but the power of attorney “was there if I want …if I was required to use it”: Tcpt, 23 November 2021, p 53 (25-27).

Mr Hodgins had sent a Cost Agreement in August 2016, for work related to the sale of the Eleebana property to “Mabel Claire Hogan by her attorney Janette Robinson”. He stated he was aware Janette was acting in her capacity as attorney and had a copy of the 2006 Power of Attorney document. He accepted that his instructions to act on the sale were, initially, provided to him by Janette. Ultimately, however, it was the deceased who had signed the Contract for Sale of the Eleebana property: Tcpt, 23 November 2021, p 66(45). (There is no evidence that the Power of Attorney had been used in relation to the completion of the sale.)

Mr Hodgins disagreed with the proposition that based on the deceased’s age and surrounding circumstances, he should have taken further steps to satisfy himself that the deceased had capacity: Tcpt, 23 November 2021, p 66(10-15).

It is clear that as a solicitor taking instructions where capacity could potentially be in doubt, as Mr Hodgins himself recognised it might be, he had a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the deceased and that she knew and approved of the Will that she was signing.

Whilst in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89], I wrote that it is undesirable to attempt to lay down precise and specific rules as to what that necessarily entails in every case, by way of example, at [137]-[197], [297]-[299], [304], [306], I pointed to the solicitor asking the will-maker open-ended questions to allow a proper assessment to be made.

In final submissions, the Defendants submitted:

Thus, the credit of Mr Hodgins was impugned upon the ground that his account had been reconstructed, well after the events that had occurred, the assertion being that he was not speaking from his own recollection of events, but was recounting a story subsequently made up by him. Whilst the allegation was one of subsequent reconstruction, it was not suggested that this was done by him with conscious dishonesty.

I reject the submissions made by senior counsel that Mr Hodgins’ evidence should be regarded as unreliable, on account of the contemporaneous documents not being produced, and the unlikelihood that he would have been able to remember, over 3 years after, the events about which he gave evidence in such detail.

I have read his evidence carefully and I observed him giving his evidence. He displayed no visible partiality, although, no doubt, he may have appreciated that the claim being made in the proceedings would, if upheld, be likely to reflect upon his firm's professional competence (a matter not put to him). There was no evidence of his testimony being the result of some motive, bias, or influence. In particular, there was no suggestion made to him that he had any relationship with the Plaintiff before, or after, the execution of the 2016 Will other than that he had known Stuart.

The presence, or absence, of evidence explaining why he might have given evidence that is not reliable is a matter to be weighed in the process of assessing the whole of the evidence. Whilst his evidence was based almost solely on his memory, it cannot be forgotten that in October 2016, he had been a solicitor for many years and had more than a little experience in taking instructions for the preparation of a will and its execution. In addition, he attended upon the deceased at Maroba. (How often he had attended a will-maker somewhere other than at his office, for example, in a nursing home, was not explored.)

Furthermore, there is the email from Mr Wilson which referred to instructions having been given to him by the deceased. There was no suggestion made that what was stated in the email, in this regard, was wrong, or that the draft Will prepared by Mr Wilson was inconsistent with the deceased’s instructions. Indeed, senior counsel for the Defendants cross-examined Mr Hodgins on the similarities between the draft that Mr Wilson had prepared and the 2016 Will: Tcpt, 23 November 2021, p 41 - 44.

Despite the similarities between the 2016 Will and the draft will prepared by Mr Wilson, Mr Hodgins denied that he had prepared the 2016 Will based largely on the draft Will prepared by Mr Wilson. He stated that the 2016 Will was “based on the instructions I was given. The draft is merely similar to those instructions”: Tcpt, 23 November 2021, p 45 (01-02).

The similarities of the draft Will prepared by Mr Wilson, apparently upon instructions from the deceased, with the 2016 Will, except for a few minor changes to the last name of certain beneficiaries and the value of some of the legacies given to certain beneficiaries, support the evidence of Mr Hodgins: Tcpt, 23 November 2021, p 42-43.

I am satisfied that Mr Hodgins used the written instructions which he believed came from the deceased; he prepared a draft which he took with him; he was astute to the need to consider her capacity, and he formed an opinion as to the testamentary capacity of the deceased; and then he took steps to ensure that she knew and approved of the contents of the Will by reading it to her and asking questions; the Will that he drafted was not particularly complex, and it followed a similar form to her earlier Wills.

Another reason that I consider that I should accept the evidence of Mr Hodgins is that the reasons he identified as having been provided by the deceased for excluding Valmai, and for omitting the Defendants as residuary beneficiaries, are consistent with other facts about which there was really no dispute. Taken with Mr Creamer’s evidence, there is compelling support for the version of events the subject of Mr Hodgins’ evidence.

The affidavits made by both Mr Hodgins and by Mr Creamer predated, by some months, the principal affidavits of the Plaintiff and the other witnesses.

Mr Hodgins gave details of the reasons why he formed the view that he did about the capacity of the deceased. I am satisfied that this is not a case where the deceased, according to the evidence that I accept, remained mute during the conference with Mr Hodgins; or where she simply nodded periodically, and when asked, at the end, whether all that had been understood, she also simply nodded. His evidence makes clear that she answered questions asked by him correctly; she spoke coherently; she explained her understanding of certain aspects of the 2016 Will and otherwise demonstrated her understanding of the will-making process (by reference to the role of an executor and the meaning of residue).

Importantly, this is not a case in which a solicitor caused his 94 year-old client to execute the 2016 Will which, in large measure, was drafted by the Plaintiff and was principally to her benefit. He gave consideration to the capacity of the deceased by asking her some open-ended questions. He read the 2016 Will to her. He did not permit persons who were beneficiaries to remain in the conference whilst he discussed the terms of the 2016 Will with the deceased. He asked questions to establish the deceased's understanding of the terms of the 2016 Will. He did not treat the execution of the 2016 Will by the deceased as merely a formal act.

I am also satisfied that he had a clear recollection of the events. Whilst I have borne the Defendants’ submissions in mind, I am satisfied that I should regard Mr Hodgins as a witness of truth, and accept his evidence as credible and reliable, even though the contemporaneous notes that he made, and some of the documents provided to him were not produced (in respect of which I have accepted that they have been mislaid, lost or unintentionally destroyed).

Overall, I did not form the view that Mr Hodgins was attempting to portray a far greater level of care, or a greater participation by him and by the deceased, at the meeting on 29 October 2016, than was demonstrated by the objective facts. In this regard, he stood up to cross-examination well, and did not seek to avoid difficult questions. The challenges made to his evidence, in cross-examination, were not, in my view, successful. His evidence remained consistent and I did not sense any prevarication in his answers. Furthermore, when weighed against the objective facts, his evidence accords with the probabilities.

I am satisfied that Mr Hodgins did not find the deceased to be confused. In his opinion, she did not lack the capacity to understand the general nature and consequences of the act of making a will at the relevant time and she fully understood the consequences and implications of the Will that she made.

Yet, in reaching the conclusion that I should accept his evidence, I have not placed unquestioning reliance, only, on what Mr Hodgins wrote and said. I next refer to the evidence of Mr Creamer. He is now retired and should be regarded as an independent witness. It was not suggested that he had anything to gain by giving inaccurate, or untruthful, evidence.

Mr Creamer, also, made two affidavits, the first of which was sworn on 17 December 2019 and which really did no more than authenticate the deceased’s execution of the 2016 Will. It was his second affidavit, sworn on 19 March 2020, which set out much more detail of the events that he witnessed on 29 October 2016.

I was most impressed with Mr Creamer and was considerably assisted by his evidence which I found convincing. I find him to be a truthful witness, whose evidence I have no hesitation in accepting. He gave his oral evidence in a straightforward way, calmly and cogently, with no indication that anything other than his genuine recollection was being advanced in his answers. He maintained that he had endeavoured to ensure that was so in his affidavits as well. He was sincere, and natural, in the witness box.

During cross-examination, he appeared careful and it was obvious that he was concerned to ensure that his evidence was factually, and otherwise, accurate. He did not seem to me to be attempting to favour the Plaintiff’s case, and his evidence, overall, had the air of reality and truthfulness about it.

I consider that his evidence lends credibility to, and also corroborates, some of the evidence of Mr Hodgins.

Nor did I form the view that he was attempting to support Mr Hodgins by giving evidence which, in some respects, corroborated that evidence. In this regard, there was no suggestion of any continuing relationship with Mr Hodgins since Mr Creamer’s retirement in 2017.

During final oral submissions, senior counsel acknowledged that I could find Mr Creamer to be a witness of truth: Tcpt, 1 December 2021, p 351(50)-352(01).

In the Defendants’ final written submissions, the following passage appears:

That Mr Creamer did not corroborate everything written by Mr Hodgins satisfies me that Mr Creamer had prepared his evidence independently, and had not discussed the events of 29 October 2016 with Mr Hodgins before making his more lengthy affidavit. Indeed, he stated that, whilst he had been requested to prepare an affidavit by Mr Hodgins, when he attended at the office in Toronto, Mr Hodgins had said that his assistant, Sharon, “will do your affidavit for you … I can't be here while you’re doing it and he just walked off”: Tcpt, 25 November 2021, p 236(43-48).

Mr Creamer acknowledged that he did not have any notes and that Sharon had not shown him any documents to help jog his memory. He could not recall being showed him a copy of the 2016 Will: Tcpt, 25 November 2021, p 237(12-17). He said he remembered “Mabel” as the deceased was the only person by that name for whom Mr Hodgins had done work: Tcpt, 25 November 2021, p 236(33-34).

Without reference to his affidavits, Mr Creamer gave evidence that Mr Hodgins had told him that he was preparing a Will for Mabel Hogan and had asked if he could come along as a witness to it. He said he would have "to be very careful with this one because she's an elderly woman. And, you know, as a witness, I had to listen to the questions that he was going to ask her, before he could proceed with the will”: Tcpt 25 November 2021, p 237(41-42). Mr Hodgins had also said that if Mr Creamer was worried about any of the deceased’s responses, or if he thought she did not understand, he should tell Mr Hodgins. His recollection of the conversations demonstrates that he was being asked to take his responsibility as an attesting witness seriously.

Mr Creamer also gave evidence that he did not take notes at the meeting but that Mr Hodgins had a notepad and had made notes “intermittently”. He could not remember whether the notes exceeded one page: Tcpt 25 November 2021, p 237(41-42). He said that he was not asked to, and did not, take any notes of the meeting: Tcpt, 25 November 2021, p 237(48-50).

Mr Creamer also gave oral evidence that Mr Hodgins had asked the deceased “things like, state her full name, date of birth, where she was living, where she used to live. There was (sic) other questions I can't recall”. Tcpt, 25 November 2021, p 239(25-29).

He said that Mr Hodgins had pointed out some variations between the Wills and had referred to the fact that she had left money to Valmai Penelope Barker in her previous Will but was not doing so in the 2016 Will. Mr Creamer stated that the deceased had said "No, she doesn't visit me. I don't want to give her anything"; "Yes, that's correct. She won't come to visit me, so I don't want to leave her anything": Tcpt, 25 November 2021, p 235(20-21).

When challenged, in cross-examination, about his recollection of the name Valmai Penelope Barker, Mr Creamer gave a detailed, clear, and plausible answer, explaining that he remembered the name because it was the first time he had heard the name “Valmai” and that he had previously gone out with "a Penelope, Penny…".

Mr Creamer also gave evidence that Mr Hodgins had read through the terms of the 2016 Will with the deceased and had questioned her in relation to a number of matters, including her understanding of what an executor and trustee did, and had asked her to confirm that she wanted Janette to be the executor; he confirmed that the deceased repeated, when asked "No I just want Janette to be my executor".

Mr Creamer also gave evidence that the deceased, in reference to Stuart, repeated that "Yes, he is going to be a solicitor". He also confirmed that Mr Hodgins had gone through all of the pecuniary beneficiaries and the amount that each was to receive and that the deceased had acknowledged each, one by one. She had also told Mr Hodgins what relationship each had to her.

I am able to infer, because he was prepared to act as an attesting witness, and gave no evidence otherwise, that he was not worried about any of the deceased’s responses, or that he had thought that she did not understand what was occurring.

In answer to questions from the Bench, Mr Creamer confirmed that he had not been involved, in any way, with Mr Hodgins, in relation to the preparation of the 2016 Will; that he did not think he had been present when Mr Hodgins had prepared that Will; that Mr Hodgins had taken all the papers, including the handwritten notes with him; that he had not seen any of the documents after that date; and that he did not have any more to do with putting the 2016 Will in a safe place or in the file together: Tcpt, 25 November 2021, p 241(38) - 242(09).

Counsel for the Plaintiff submitted that the evidence given by Mr Hodgins was corroborated by Mr Creamer’s evidence, to the extent that there was a proper process followed in the conference with the deceased on 29 October 2016, including the beneficiaries leaving the room, the Will being read over and there being a comparison of the 2016 Will and the 2013 Will: Tcpt, 1 December 2021, p 336(25-30).

Overall, I am satisfied that the details of the events that occurred when the 2016 Will was discussed with, and then signed by, the deceased have emerged, despite the fact that contemporaneous documents were not available to the Court to enable a more complete picture to be provided. Mr Creamer’s evidence carries some weight in considering the evidence of Mr Hodgins.

Whilst he was a witness with an obvious interest in the result of the case, I also accept the evidence of Stuart. I remember, in this regard, that he is now a solicitor of about 5 years standing. He, too, was sincere and natural in the witness box and he gave his evidence in a very straightforward manner. He impressed me as an honest and credible witness. I found his answers, in cross-examination, to be precise and his evidence was to the point. There was really no significant challenge to the evidence given by him. It is plausible and no basis was advanced for rejecting it.

Stuart said that he had a close relationship with the deceased and considered her to be a third grandparent. Growing up, he would visit her with the Plaintiff, about once a month; he regularly spent time with the deceased on special occasions, such as Christmas and birthday celebrations; and when the deceased was admitted to Maroba, he would visit her approximately once a week with the Plaintiff.

Between 2015 and November 2017, Stuart observed the deceased’s memory to be “very good”. When he visited, Stuart, usually, would ask the deceased “What have you been up to this week?” to which the deceased would respond in ways such as “Well, we went on a bus trip and got ice creams” and “We got on the bus and went out to Maitland”: Affidavit, Stuart Robertson, 30 July 2020 at par 17.

He would also usually ask the deceased “Have you had any visitors since I was here last?” The deceased would normally reply “No, nobody’s been”. Occasionally, approximately every three or four visits, the deceased would say “Yes, Carolyn and Rod came and visited me last week” or “Faye came and visited me the other day”: Affidavit, Stuart Robertson, 30 July 2020 at par 18.

He gave evidence that, in about July 2016, he received a telephone call from the Plaintiff in which she told him that the deceased wished to sell the Eleebana property and asked him if he knew any lawyers other than Greg Wilson who could assist with the sale. Stuart recommended Mr Hodgins, with whom he had completed some of his Practical Legal Training.

In cross-examination, Stuart also confirmed that the Plaintiff had a conversation with him, which was to the effect that the Plaintiff said “I think she got a bit of a fright when she was in hospital recently and wants to update [her Will].” He was quite sure, and was not mistaken, that the Plaintiff had said words to that effect: Tcpt, 25 November 2021, p 244(06 -17). (He maintained the accuracy of the date of the conversation, although it is clear that the Plaintiff’s evidence about the date the conversation occurred was wrong.)

Stuart acknowledged that he and the Plaintiff had been present on the day the 2016 Will was signed and that they had been with the deceased, before, and after (but not during), her meeting with Mr Hodgins. Stuart acknowledged that he and the Plaintiff had "retrieved" the deceased from her room and that they returned her to her room after the conference: Affidavit, Stuart Robertson, 30 July 2020 at par 61 and 66.

In cross-examination, when asked about the paragraph and the meaning of “retrieved”, he said that “We approached her room, greeted her, and took her to the meeting room where she was to meet Mr Hodgins”: Tcpt, 25 November 2021, p 244(27-35).

According to Stuart, at the time the 2016 Will was executed, he observed the deceased to be physically slight and to walk with the assistance of a mobility walker. He was not aware of any chronic, or ongoing, medical conditions from which the deceased suffered at about the time the 2016 Will was executed, save for some hearing loss.

Another witness, who I am satisfied gave credible, reliable, and truthful evidence was Ms Letts, a neighbour of the deceased. She had no interest in the result of the case and I formed the view that she had nothing to hide in relation to that evidence. It was not submitted that she gave her evidence only to support the Plaintiff’s case. Indeed, no mention of her evidence was referred to in the Defendants’ final written submissions. Her evidence was given calmly and co-operatively, without any suggestion of exaggeration. In my view, she was a patently honest and transparent witness.

In cross-examination, Ms Letts stated, of her visits to the deceased (Tcpt, 30 November 2021, p 291(13-19)):

She first met the deceased in July 2003, when she moved into a property opposite the Eleebana property. Ms Letts saw the deceased regularly and would often drive her to her appointments, go shopping with her, and have meals with her.

From early 2007, Ms Letts or her daughter, Stephanie, would check each morning that the deceased’s kitchen window dressings were open and that her newspaper had been collected (which it always was except on two occasions when the deceased had slept in).

In 2014, the deceased went out to lunch with Ms Letts and her family on approximately 6 occasions. On each occasion, Ms Letts observed the deceased to calculate the exact amount required to pay for her meal and pay that amount. Similarly, when Ms Letts went shopping with the deceased, she observed the deceased to routinely check off the items and prices on her shopping docket and query any discrepancies.

Ms Letts gave evidence that, whenever she arranged to go out with the deceased, the deceased was waiting for her at the appointed time. Whilst the deceased was living at home, Ms Letts observed her to speak clearly and engage fully in conversation. She did not hesitate, lose her place in conversation or appear to forget the detail of conversations. (In cross-examination, she stated that, although the deceased had a hearing problem, it did not impair her ability to converse and when she spoke to the deceased, she would only be required to speak slightly more loudly: Tcpt, 30 November 2021, p 287(06-14)).

In November 2015, Ms Letts visited the deceased twice at Maroba. On the first occasion, the deceased showed Ms Letts around and introduced her to staff and residents. The deceased also asked Ms Letts about her mother’s eyesight, about which Ms Letts had told the deceased in October 2015. On the second occasion, the deceased again spoke of Ms Letts’ mother, about the nursing home activities, and the food.

In late January 2016, Ms Letts visited the deceased with Stephanie. The deceased asked Stephanie many questions, including about her cello playing. According to Ms Letts, the deceased kept the conversation moving and was able to remember their shared experiences.

When Ms Letts next visited the deceased in mid-February, they had discussed the nursing home and recent activities in which the deceased had participated. The deceased again asked about Stephanie and her dog.

Ms Letts took the deceased out to lunch on two or three occasions after she became a resident at Maroba, including at the end of March 2016. On each occasion, the deceased knew the price of what she had ordered and had the correct amount of money ready to contribute to payment of the bill.

In July 2016, Ms Letts visited the deceased with her mother, Elva. On this occasion, the deceased was able to recall details about her wedding day and asked Ms Letts about her daughter and her travels.

When Ms Letts visited the deceased in approximately November or December 2016, the deceased was able to recall that Stephanie was due back from her overseas trip.

Ms Letts agreed that the deceased asked similar questions during her visits, saying that the deceased would “ask about my mother and my daughter, because they were important in my life, and she had a lot to do with them”: Tcpt, 30 November 2021, p 291(26-27).

I turn last to the lay evidence of the Plaintiff. She was subjected to a relatively long, and strenuous, cross-examination by senior counsel. She had not been present in Court during the cross-examination of Mr Hodgins.

Her affidavit evidence was clear, straightforward, well-organised and precise, and importantly, full of detail. She stood up to the cross-examination well. Overall, I found her to be attempting to assist the Court, and she gave coherent and logical evidence.

There were, however, two legitimate criticisms of her evidence, but in my view, neither diminishes the reliability, overall, of her evidence. The first relates to the events that occurred when the deceased was taken to John Hunter Hospital and whether Carolyn was with her at the time of the deceased’s admission. I accept Carolyn’s evidence that she was there. In this respect, I am satisfied that the Plaintiff had misremembered Carolyn’s attendance with her and the deceased.

The second legitimate criticism related to the date of a conversation with the deceased about wishing to make a new Will in 2016. The Plaintiff originally stated that the deceased wished to change her Will after becoming ill and being admitted to the Mater Hospital in 2016. However, hospital records show the deceased was admitted to the Mater Hospital in April 2017, some months after the 2016 Will was executed. The Plaintiff later corrected the date of admission to 2017, and admitted that the error would change the timing of a number of other events in her affidavit: Tcpt, 24 November 2021, p 160(04-08).

The Plaintiff gave uncontested evidence that she had a close relationship with the deceased from her early childhood and that she saw her on at least a weekly basis. She also gave evidence that members of her family were very close and would gather, on special occasions, and spend annual family holidays together.

During 2006 and 2007, when Ken’s health was declining, the Plaintiff took the deceased to the hospital on weekends to visit Ken, attended meetings with medical professionals and social workers with the deceased and helped the deceased arrange care for him.

The Plaintiff gave evidence that in early 2006, the deceased asked her to be the deceased’s Attorney and Enduring Guardian, stating:

On 13 March 2006, the Plaintiff accompanied the deceased to her appointment with Hewitt’s Commercial Lawyers. The solicitor discussed the Power of Attorney with the deceased, whilst the Plaintiff was in the waiting room. The Plaintiff then returned to the interview room briefly to confirm the details. On 21 March 2006, the Power of Attorney and Enduring Guardian documents were signed and witnessed.

Approximately three months after arranging the Power of Attorney documents, the deceased asked the Plaintiff to assist her in completing her and Ken’s tax returns. The deceased also asked the Plaintiff to sell any shares she owned and invest the proceeds of sale. The deceased gave the Plaintiff documents including various bank statements and correspondence from McCosker Partners Chartered Accountants. In fact, from 2006, the Plaintiff prepared the deceased’s tax returns and took the documents to McCosker Partners for checking and lodgement.

The Plaintiff then negotiated with McCosker Partners, on the deceased’s behalf, to sell any shares owned and she provided documentary confirmation of the transactions to the deceased. The proceeds of the sale were deposited into the deceased’s savings account by way of bank cheques. When the sale of all shares was finalised, the funds were invested in term deposits and any interest was reinvested.

In cross-examination, the Plaintiff denied that, at the times she was referring to the Power of Attorney, she knew the deceased was incapable of managing her financial affairs, by reason of lack of mental capacity: Tcpt, 24 November 2021, p 202(30-44).

The Plaintiff gave evidence that, following Ken’s placement into care in 2007, the deceased continued to look after herself which included cleaning her home, arranging maintenance, paying her bills and preparing her own meals. During this time, the Plaintiff would see the deceased at least once a week and call her every couple of days. The Plaintiff observed the deceased to maintain an immaculate home, be well-dressed and appear mentally alert and aware of current affairs.

In 2009, the Plaintiff helped the deceased arrange pre-paid funerals for her and Ken. After Ken’s death in August 2009, the Plaintiff assisted the deceased with making arrangements for his funeral and executing his Will.

When the deceased was hospitalised in September 2015, the Plaintiff typically visited her every weekday, and on weekends. Similarly, when the deceased was hospitalised from April to May 2017 with a respiratory infection, the Plaintiff would visit her every day.

In September 2015, the deceased’s doctor recommended that the deceased move into aged care, stating that the recommendation was not because of her mental state, but rather because nursing care was required.

Yet, the Plaintiff, in September 2015, was also concerned about the deceased’s ability to live at home “probably only in terms of her age, but she was very good at caring for herself”: Tcpt, 25 November 2021, p 215(11-12). She stated that the deceased “was with it and she was very self-sufficient and very independent”: Tcpt, 25 November 2021, p 215(15).

The Plaintiff did not know the deceased to have suffered any falls or that she had large bruises: Tcpt, 25 November 2021, p 215(17-25). She denied ever telling health care professionals that the deceased had had falls or suffered from cognition issues: Tcpt, 25 November 2021, p 221(24-26).

According to the Plaintiff, when she visited the deceased in the John Hunter Hospital, she seemed alert and happy and understood why she had been hospitalised.

In October 2015, when the deceased transferred from hospital to aged care, the Plaintiff decorated her room, made arrangements with her bank to make the necessary payments, completed all relevant documents and regularly visited the deceased at Maroba. The Plaintiff also made arrangements for the deceased to move into a single room when one became available in early 2016.

After the deceased moved into Maroba, the Plaintiff recalled that the deceased would read the paper each day and that they would often discuss local and national news.

I turn next to the Plaintiff’s evidence about events surrounding the preparation of each of the 2013 and 2016 Wills.

In December 2009, the deceased and the Plaintiff had the following conversation:

The Plaintiff then took the deceased to see a solicitor, Mr Wilson, on 17 March 2010. The Plaintiff was not present during the deceased’s and Mr Wilson’s discussions. However, at the conclusion of the meeting, Mr Wilson told the Plaintiff:

On 13 August 2010, whilst at Mr Wilson’s office with the deceased, he told the Plaintiff:

In about January 2013, the deceased and the Plaintiff had the following conversation:

The Plaintiff took the deceased to see Mr Wilson in about March 2013. She said that she was not present whilst Mr Wilson and the deceased discussed her Will.

On 3 May 2013, the Plaintiff took the deceased to see Mr Wilson to execute her new Will. Mr Wilson told the Plaintiff: “I need you to wait outside again whilst I go through the will with Margaret. I’ll have to ask her a few questions and then if she’s satisfied with the will she can sign it and I’ll get Sonia to witness it.” The deceased then executed her new Will.

(I refer to the evidence of Carolyn who said that she was present when the instructions for the 2013 Will were given to Mr Wilson: Tcpt, 30 November 2021, p 311(11-13). The dispute of fact is of no evidentiary significance in regard to the veracity of the Plaintiff because there is no dispute about the validity of the 2013 Will.)

In about late June 2016, the deceased and the Plaintiff had the following conversation (Affidavit, Jeanette Ruth Robertson, 10 June 2020 at par 137):

I have already referred to the email correspondence passing between Mr Wilson and the Plaintiff in August 2016.

In cross-examination, the Plaintiff stated that she could not remember whether she had given Mr Wilson instructions for the deceased’s 2016 Will: Tcpt, 24 November 2021, p 170(29-34). She confirmed that Mr Wilson had sent her a copy of the draft Will and that she told Mr Wilson that it was correct, excepting that the amendment of the Will was to make an amount of $100,000 each to Penelope Robertson and Andrew Barker, not $75,000: Tcpt, 24 November 2021, p 173(01-15). However, she was unable to definitively state whether she knew of the terms of the draft Will: Tcpt, 24 November 2021, p 173(38-39).

The Plaintiff agreed that although Mr Wilson had asked to see the deceased to take further instructions, the Plaintiff did not arrange such an appointment: Tcpt, 24 November 2021, p 174(29-45).

The Plaintiff instead provided instructions, on behalf of the deceased, to Mr Hodgins. At this time Mr Hodgins was representing the deceased on the sale of the Eleebana property, but had yet to meet the deceased in person.

The Plaintiff stated that her decision to change solicitors was because (Tcpt, 25 November 2021, p 231(46)-232(13)):

The Defendants submitted that the email from Mr Wilson to the Plaintiff (Ex TBNM1/247) showed that he was willing, and available, to meet the deceased. It was submitted that the change from the deceased’s regular solicitor to Mr Hodgins, a decision made by the Plaintiff, was a suspicious circumstance and one relating to the Plaintiff’s involvement in the preparation of the 2016 Will.

I tend to accept the evidence of the Plaintiff in this regard. Whilst I accept the Defendants’ submission that the Plaintiff arranged the services of Mr Hodgins as a solicitor, she did not draft the 2016 Will, or give him instructions to draft the 2016 Will as was asserted. Furthermore, as found above, Mr Hodgins interviewed the deceased with only Mr Creamer present.

In any event, the submission is without real consequence, because the terms of the 2016 Will were very similar to the draft Will prepared by Mr Wilson. Relevantly, the 2016 Will did not provide any additional benefit to the Plaintiff not already the subject of the instructions given by the deceased to Mr Wilson and included in the draft Will.

On 15 October 2016, the Plaintiff spoke to the deceased about her Will. The Plaintiff told the deceased that Mr Hodgins was willing to prepare the deceased’s new Will and had the following conversation with her:

On 19 October 2016, the deceased gave the Plaintiff a handwritten list of the changes she sought to make to the 2013 Will. She also told the Plaintiff, “I have written it all down, but can you make sure you tell him that I don’t want Carolyn to be Executor because she has been very sick with cancer again and something might happen to her. I want Stuart to be the other executor, he’s going to be a lawyer, so I think he will be a really good executor. He’s clever and I know I can trust him.” The Plaintiff gave the documents to Mr Hodgins on 20 October 2016.

On 29 October 2016, the Plaintiff attended, with Stuart, at Maroba. The Plaintiff recalled Mr Hodgins stating, “I’m a bit worried about [the deceased’s] age, she’s ninety-three isn’t she? If we strike problems I might have to get a doctor to given an opinion”.

The Plaintiff gave evidence that she was not present in the meeting room whilst the deceased signed the 2016 Will. However, shortly afterwards, Mr Hodgins told the Plaintiff: “The Will’s all done. She was amazing. She’s very good. She’s so switched on. I don’t need to get a doctor”. This evidence was not objected to or challenged.

The Plaintiff asked the deceased if she was happy with her new Will, to which she replied, “Yes, very. He made the will exactly as the list I wrote out, I’m glad that I got it done with him. It’s good to have it over with”: Affidavit, Jeanette Ruth Robertson, 10 June 2020 at par 158.

Counsel for the Defendants submitted that the Court should not accept the Plaintiff’s evidence, for the following reasons:

During oral submissions, senior counsel for the Defendants sought to further characterise the Plaintiff’s evidence as unreliable, repeating that the Plaintiff did not refer to her emails with Mr Wilson in her affidavit: Tcpt, 1 December 2021, p 343(21-26).

As I pointed out to senior counsel, it was against the Plaintiff’s own interest not to disclose such emails: Tcpt, 1 December 2021, p 345(50)-346(04). I similarly rejected the submission that it was the Plaintiff’s, rather than the deceased’s, instructions, about increasing the legacy to each of the Defendants, as set out in the email, as the instructions were, once again, against the Plaintiff’s own pecuniary interests: Tcpt, 1 December 2021, p 348(04-15).

I do not attach any weight to the allegation that the Plaintiff used the Power of Attorney that contained the limitation to which reference has been made. Even though there were a number of documents that mentioned the Power of Attorney, in fact, it was not used to conclude any relevant transaction as the deceased signed the transactional documents herself.

Ultimately, the Defendants submitted that the Court should make an order granting probate of the 2013 Will in solemn form to the Plaintiff and Carolyn or, alternatively, that the Court should order that letters of administration with the 2013 Will annexed be granted to an independent solicitor because of the conduct of the Plaintiff.

I have carefully considered the evidence of the Plaintiff. However, I am satisfied that she was a truthful and reliable witness.

I turn next to the evidence of the Defendants and their witnesses. Like the Plaintiff, both the Defendants have an interest in the result of the proceedings. However, I did not find either to give evidence in an adversarial manner, or in a way transparently intending to advance their case. I did not gain any sense that she, or he, gave evidence motivated by an interest in the result of the case.

This view is, perhaps, demonstrated by the relatively short affidavits made by each of them. I am satisfied that each of them endeavoured to tell the truth as she, and he, recollected it. However, that evidence was not nearly as detailed as the evidence of the Plaintiff and the witnesses called in her case. Perhaps, that reveals that there was not very much each could say about the events in 2016.

Penelope’s affidavit comprised only 18 paragraphs. Paragraphs 3 to 12 related, principally, to events that occurred whilst she was a child and, events that occurred, at the very latest, in 2012. The remaining paragraphs related to events said to have occurred in 2015. She gave no evidence, at all, about the deceased in 2016.

Penelope stated that the deceased, and her husband, Ken, had played a “huge role in my life”. Whilst at school, she would see the deceased and Ken every school holidays and she and her brother would often stay at their house in Newcastle. The deceased and Ken spent Christmases, Easter, birthdays, and weddings with Penelope and the family.

In 2007, Penelope, her husband, Ian, and their daughter, Mia, were living in Darwin. During this time she stated she maintained a close relationship with the deceased.

In her adult years, Penelope would telephone the deceased and visit her and Ken, three or four times a year. After Ken died in August 2009, she and Andrew reduced their visits to the deceased. Penelope stated she visited the deceased a minimum of twice a year after Ken died: Tcpt, 25 November 2021, p 248(46). She stated this was because the deceased was ageing and they did not want to place any extra stress on her by all staying at the house.

Penelope gave oral evidence of visits in 2010, 2011 and 2012 to the deceased’s home with her family and with Andrew and his family: Tcpt, 25 November 2012, p 256(01-06). She also stated she would occasionally visit the deceased, for 15 to 30 minutes, on the way home from work trips in Newcastle: Tcpt, 25 November 2021, p 253(48) – 254(19). She acknowledged that “I was just popping in briefly”: Tcpt, 25 November 2021, p 254(18 – 19).

In 2015, Penelope visited the deceased twice: once in May 2015 after a work trip and again in December 2015. (The December 2015 visit was the last time Penelope saw the deceased before her death.)

During the first visit in May 2015, Penelope did not notice any injury to the deceased’s leg and did not go inside the deceased’s home during the visit: Tcpt, 25 November 2021, p 254(31-36).

On 20 December 2015, Penelope and her daughter, Mia, visited the deceased at Maroba Nursing Home. Penelope stated that during the visit the deceased did not recognise her or Mia and asked her whether she was married.

When Penelope mentioned Andrew and his wife, the deceased did not remember who they were. In cross-examination, Penelope stated that the deceased had recognised her after a short delay: Tcpt, 25 November 2012, p 255(42-43).

The purpose of this evidence was to suggest that the deceased’s mental capacity was poor. However, in cross-examination, Penelope stated she could not recall if Mia had seen the deceased after 2012: Tcpt, 25 November 2021, p 256(08-10) and (22-24). Thus, it is unsurprising that the deceased might fail to recognise Mia as she probably had not seen her since she was 5 years old.

Penelope stated that during the visit the deceased spent most of the time repeating herself and forgetting what she had said moments earlier. During the visit the deceased would repeat that she had been unwell and was in hospital but failed to mention any fall or any operation. Towards the end of the visit, in the common area of the nursing home, the deceased pulled down her trousers to show Penelope her scar (presumably from her earlier leg wound). Penelope stated that this was very out of character for the deceased. In cross-examination she stated she “was disturbed by the way she was behaving”: Tcpt, 25 November 2021, p 258(04-05).

Neither Penelope, nor any witness called by the Defendants, gives any evidence of having raised, with the Plaintiff, concerns at the way the deceased was behaving.

In 2004, Penelope and her husband, Ian, visited the deceased. On the drive home, Ian told Penelope that the deceased had said to him that she and Ken wanted to leave the house to her and her brother, Andrew, to keep in the family.

Penelope stated that whilst visiting the deceased in 2012, the deceased said to her “I want to leave the house to you and Andrew, but can you please make sure you look after it for me and not sell it” and “I am also leaving you my jewellery in my Will”. However, none of the deceased’s Wills leave the house to Penelope and Andrew or give Penelope the deceased’s jewellery. Penelope acknowledged that this was so: Tcpt, 25 November 2021, p 254(43) - 255(07).

Despite the reference to these conversations, Penelope, in cross-examination gave evidence that she would not have said that leaving the Eleebana property to her and Andrew would have meant a lot as she “wasn’t expecting anything from my nana. I just enjoyed her being in my life”: Tcpt, 25 November 2021, p 252(19-22). This statement was made spontaneously and her reasons for making it were not explored.

In his affidavit, which comprised 34 paragraphs, Andrew gave evidence that he maintained a strong and consistent relationship with the deceased throughout his life. During his childhood, he had spent a lot of time with the deceased, particularly during school holidays. As an adult, he continued to regularly visit the deceased, for a few days at a time, until Ken moved into a nursing home in April 2008.

Between 1999 and 2005, Andrew and his wife, Marina, would visit for weekends at a time. However, after their son was born in 2005, overnight visits became too difficult so Andrew and his family would visit for day trips, typically from 10:00 a.m. till 4:00 p.m.: Tcpt, 25 November 2021, p 271(01-02).

After Ken passed away, Andrew continued to visit the deceased approximately once every three months: Tcpt, 25 November 2021, p 271(15-16). The last time Andrew visited the deceased was prior to her hospital admission in 2015. It follows that, at the time of giving instructions for a Will in 2016, Andrew had not visited the deceased for about 1 year.

Andrew stated that, on approximately 6 to 8 times from October 2015, he had attempted to telephone the deceased to speak to her whilst she was in Maroba. (No telephone records to corroborate his recollection were produced.) However, the deceased would be unable to hear him so a nurse would relay Andrew’s words to the deceased or ask him to call back later. Andrew’s family also sent the deceased cards, flowers and gifts whilst she was in the nursing home and hospital, for Mother’s Day, her birthday and Christmas.

(The Plaintiff in her affidavit in reply confirmed that they had done so, and said that she would take a photograph of the deceased with the flowers and send it by text to Valmai with a thank you from the deceased. Despite not being close to Valmai, the relationship remained cordial.)

Andrew noticed a decline in the deceased’s health and her ability to manage her home over the period from 2012 to 2015, which caused him to worry about the deceased’s capacity to properly care for herself. Andrew observed that the majority of the house was not being used, it was dark and musty, the windows were always shut and the blinds and ceilings were mostly closed. There was no evidence that he had contacted the Plaintiff, or Carolyn, to tell either of his concerns.

In the year prior to the deceased moving into Maroba, the deceased stopped asking Andrew to perform jobs, such as trimming branches in her garden, which he had routinely done over the previous 30 years.

Andrew recalled that, on one occasion, Valmai told him “There’s mildew on some of the walls and look at the ceiling, it’s worse for wear”: Affidavit, Andrew John Barker, 22 May 2020 at par 25. Yet, in cross-examination, Andrew stated that, when visiting the deceased in early 2015, her home was not in a state of squalor, but it was not in the same condition as he was used to and it looked as though the deceased was only living in two rooms: Tcpt, 25 November 2021, p 272(17-20).

Andrew was asked whether he noticed any serious issue concerning the deceased looking after herself, to which he replied (Tcpt, 25 November 2021, p 272(28-40)):

Andrew was also asked whether he noticed any word finding or language difficulties experienced by the deceased in approximately 2015, to which he stated (Tcpt, 25 November 2021, p 274(10-14)):

According to Andrew, between 1999 to 2005, during several of his visits to the deceased’s and Ken’s home, she would make comments about her home becoming “ours” and say words to the effect of “I know you love visiting us and it is important to us both that after we pass away our house remains in the family” or “This will end up belonging to you kids so you can keep enjoying it after we have gone”: Affidavit, Andrew John Barker, 22 May 2020 at par 31-33.

Reading, and hearing, the evidence of each of the Defendants, I am of the view that after the death of Ken, in 2009, and also because of the busy lives that each of them led, her, and his, relationship, respectively, with the deceased, became less close, although, of course, they were not estranged.

It is important to note that neither visited the deceased at all in 2016. Naturally, Andrew gave no evidence about the deceased in 2016 as he did not see her. I note the evidence that the deceased had a photograph of the Defendants in her room at Maroba and often said to Carolyn that she was very proud of them.

I turn next to the evidence of Carolyn. Her affidavit comprised 35 paragraphs, of which 4 were rejected and 7 were to do with Janette. She, too, I thought endeavoured to tell the truth, but without in any way being critical, her evidence lacked detail, particularly about the deceased in 2016. I am satisfied that she was trying to tell the truth, at least as far as she remembered it.

Whilst the deceased was still living in the Eleebana property, Carolyn would visit the deceased more than three to four times a year: Tcpt, 30 November 2021, p 305(27-29).

Carolyn stated that during visits to the deceased in the 3 months preceding her admission to John Hunter Hospital, she had never observed the deceased to have a bruised leg and did not know she had had a fall until Janette had told her: Tcpt, 30 November 2021, 305(42-50). She agreed that if she had noticed an issue concerning the deceased’s care prior to her going to hospital in September 2015 she would have raised it with Janette. There was no evidence that she had done so.

During that final visit to the deceased before her admission to John Hunter Hospital, Carolyn stated that she noticed there was “virtually nothing” in the deceased’s fridge. She knew, however, that a neighbour would take the deceased shopping and otherwise help her with shopping: Tcpt, 30 November 2021, p 306(05-08).

Carolyn corroborated evidence from Penelope that the deceased told her on multiple occasions she would be leaving her rings and jewellery to Penelope.

Carolyn gave evidence that she had gone with Janette and the deceased to Wilson & Co Solicitors, in 2013. She also said she was present in the room when the deceased gave instructions to Mr Wilson for the 2013 Will. Again, nothing really turns on the difference in the evidence on this topic. However, accepting Carolyn’s evidence, it would appear that in relation to the 2013 Will, the Plaintiff and Carolyn played a far greater role than each did in relation to the 2016 Will. (It is somewhat ironic that the Defendants, who must have been aware of Carolyn’s evidence, propound the 2013 Will.)

I have earlier stated that I accept Carolyn’s evidence on the events of 5 September 2015. Janette and Carolyn had arranged to take the deceased out to visit Robert and to have lunch to celebrate her birthday. Janette collected the deceased from the Eleebana property and drove to Carolyn’s house. When they arrived, Janette came into the house, whilst the deceased remained in the car. She told Carolyn that the deceased had taken a fall and the wound looked infected. She also stated the deceased had not been to see a doctor about the injury. They agreed to cancel the lunch and she and Janette took the deceased to John Hunter Hospital for treatment.

Carolyn stated that upon her admission deceased “seemed quite…out of it” and “I don’t think she understood what was really happening to her”: Tcpt, 30 November 2021, p 306(23-26). She confirmed that throughout the deceased’s time in John Hunter Hospital she was not her usual self: Tcpt, 30 November 2021, p 309(05-07).

During the deceased’s admission to John Hunter Hospital, Carolyn recalls speaking to hospital staff, as one of the nurses was a close friend of hers from high school: Tcpt, 30 November 2021, p 306(28-32). Carolyn told staff that she was the deceased’s attorney and enduring guardian, which was not correct: Tcpt, 30 November 2021, p 306(34-46). Carolyn did not recall ever seeing a document which named her as either the deceased’s attorney or guardian: Tcpt, 30 November 2021, p 307(33-35) and p 308(02-04).

Later in cross-examination, she stated that she did not recall telling hospital staff anything when they took the deceased to hospital and “with all the rush of everything…I can’t recall who said what”, however she and Janette were doing things together: Tcpt, 30 November 2021, p 308(08-14).

On 29 October 2015, Janette, Carolyn and Rod attended Maroba Nursing Home to organise finances in regards to the deceased’s move to Maroba.

After the deceased moved into Maroba Nursing Home, Carolyn and her husband continued to visit the deceased and Robert, regularly. They would mostly visit every second Sunday morning or on a weekday afternoon. They would also visit on other occasions when in the vicinity of Maroba. These visits would usually involve spending around 40 minutes with Robert and 15-20 minutes with the deceased. Occasionally the deceased would come into Robert’s room and they would all spend time together.

On nearly every visit to Maroba to see the deceased, Carolyn would attend with her husband, Rod. There was only one occasion when she went with a close family friend to visit: Tcpt, 30 November 2021, p 311(33-37). (I have referred to the failure to call Rod to give evidence of his observations of the deceased.)

Carolyn stated that due to the deceased’s hearing loss it was difficult to speak to her on the telephone and that during visits she would often have to repeat herself. She also found the deceased to appear confused during conversations and she would ask the same questions repeatedly.

In cross-examination, Carolyn accepted that even before being admitted to Maroba there was some difficulty conversing with the deceased due to the fact that she did not like to wear her hearing aids. On the occasions she did not wear the hearing aids, Carolyn stated she would have to sit very close to the deceased and it was hard to converse. She admitted it would have been easier to converse with the deceased when she had them in: Tcpt, 30 November 2021, p 310(04-21).

At the beginning of her examination in chief, Carolyn produced a photo album she had made for the deceased while at Maroba, which was tendered and marked as Ex D5. The album contained photos of the deceased and her family over the years. Carolyn kept the album and would bring it on her visits with the deceased because “I needed to sort of sometimes explain and show her” and “it’s good to have something like this, where it brings back memories of those times”: Tcpt, 30 November 2021, p 302(29-30) and p 303(03-04). Carolyn stated that she had made the photo album in 2018: Tcpt, 30 November 2021, p 303(24-25).

(It is difficult to know the relevance of the album if it was created more than 12 months after the 2016 Will was made. However, it was not the subject of objection and nothing more was said about it in support of the Defendants’ case.)

From the time the deceased became a resident of Maroba in October 2015, Carolyn, Rod, and Janette began packing up the deceased’s home in preparation for sale. Carolyn gave evidence that she did not find it to be in a state of squalor. Nor had she found any incontinence pads left around: Tcpt, 30 November 2021, p 309 (20-24).

Carolyn stated that on one occasion, whilst in the deceased’s kitchen, Janette told her and Rod that “when Aunty Margaret finally dies we will be rich!” She then proceeded to dance around the room with her hands above her head singing “we’re in the money, we’re in the money!” Whilst nothing really turns on this evidence, Carolyn acknowledged that Janette had quite a serious personality: Tcpt, 30 November 2021, p 304(36-37). It was submitted that the evidence should not be accepted as it was inconsistent with the personality of the Plaintiff.

(I note that although it was referred to in her affidavit, it was denied by the Plaintiff and her denial was not challenged in cross-examination. In fact, it was not raised at all in cross-examination of the Plaintiff.)

Carolyn also stated that around this time, Janette made regular comments about the deceased being in “God’s waiting room” and the deceased and her brother “both taking too long to move on from God’s waiting room.” This assertion was also denied by the Plaintiff and her denial was not challenged in cross-examination.

In February 2016, Rod and Carolyn had a disagreement with Janette and her husband, Andrew, and they have been estranged since that time. The relationship had not been resurrected by the time of the hearing: Tcpt, 30 November 2021, p 312(05-06).

In Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [195] - [196], Campbell JA wrote:

Thus, even with an assessment by a medical expert, the question of testamentary capacity, ultimately, is a question of fact for the trial judge, and that lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303 at [86] and [128] (White JA, Bathurst CJ and Gleeson JA agreeing).

Expert medical evidence, or the opinion of an attesting witness, as to competency, on its own, is not decisive: Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).

Dr Sales was the only relevant medical expert who had seen, and treated, the deceased who was cross-examined. He appeared remotely as a witness in his professional capacity. He clearly had no axe to grind in the case. I am completely satisfied as to his veracity and that I can rely on his evidence in support of my conclusions. He was a genuine and convincing witness.

As stated, Dr Sales saw the deceased at Maroba following the commencement of her residence there until he left in about October 2017, that is to say for about 2 years. Thus, he saw her over a not short period of time, at relatively frequent intervals, in the ordinary course of his attendance at Maroba. He was in a very good position to have observed, to have assessed, and to give evidence of, her cognitive abilities.

Dr Sales gave evidence that his usual practice, where a patient was showing signs of cognitive impairment, was to medicate the patient with treatment that slowed progression of any such condition and to record such observations. He had no recollection, or written record, of observing the deceased to have had cognitive impairment during his consultations with her. He added that, as at 29 October 2016, he was not treating her for any cognitive impairment and she was not prescribed any medication relating to cognitive impairment. In those circumstances, one would have expected him to be acutely aware of any abnormality (including impairment) of a patient’s mental condition.

Dr Sales was taken to some of the Progress notes for the deceased. One dated 28 October 2015 stated “cognitive function normal to conversation but she had let her thigh infection [get] to a severe level prior to help, and she is unaware of bowel frequency”: Ex MS1/62.

In cross-examination, Dr Sales stated that this note was not necessarily an indication of some cognitive impairment (Tcpt, 25 November 2021, p 264(37-42)):

Dr Sales stated, in reference to the deceased’s thigh infection in September 2016 (Tcpt, 25 November 2021, p 268(33-44)):

In regards to the deceased’s awareness of her bowel frequency, Dr Sales stated (Tcpt, 25 November 2021, p 268(49)-269(07)):

Dr Sales noted that on 17 February 2016, the deceased had attended Australian Hearing and the attending audiologist had reported that she was able to demonstrate discrimination of speech in both ears with amplification. According to Dr Sales, this statement indicated that the deceased’s cognitive abilities were sufficient to understand and co-operate with the testing program at the audiology clinic: Tcpt, 25 November 2021, p 267(38)-(40)).

On 29 April 2017, the deceased was admitted to Cavalry Mater Hospital for pneumonia the deceased’s medical conditions recorded at that time were high cholesterol, deafness, appendectomy, hypertension and arthritis: Ex TBNM2/709. During the deceased’s admission, it was recorded that she was usually active and walking with a walking frame: Ex TBNM2/705.

A telephone advice relating to an examination conducted by Dr E. Hawxwell on the deceased on 29 April 2017 stated (Ex MS1/26):

In cross-examination, Dr Sales was asked whether the observations made by Dr Hawxwell matched his experienced with the deceased, to which he stated (Tcpt, 25 November 2021, p 266(41)-267(14)):

…

However, Dr Sales also stated that (Tcpt, 25 November 2021, p 268(15-18)):

In my view, the condition suffered by the deceased was not so rare a condition for an elderly person that it would be beyond the competence of a general practitioner, particularly one who was attending a place like Maroba, to recognize or diagnose, particularly if it the condition was at the moderate to severe range. He made no such diagnosis.

Turning then to Dr Simpson, as stated, she did not examine, or treat, the deceased. Before descending into the detail of her evidence, it is clear that Dr Simpson was of the:

It is equally clear that her opinion was inconsistent with much of the evidence of the lay witnesses in 2016, particularly the witnesses called in the Plaintiff’s case and also with the evidence of Dr Sales, all of whom had reasonable contact with the deceased. Dr Simpson was very firm in her opinion.

There was no evidence, given by either Dr Sales or Dr Simpson, of any psychotic illness, delusion, hallucination, or thought disorder: Ex JER1/10.

Dr Simpson stated that the deceased suffered from several medical conditions which she considered to be risk factors for dementia and vascular dementia. These include hypertension, dyslipidaemia (abnormally elevated cholesterol and fats in the blood), sensorineural hearing loss, urinary incontinence and intermittent faecal incontinence.

Yet, in cross-examination she stated that whilst the brain is responsible for bladder control, incontinence could be related to things other than cognition and brain function: Tcpt, 23 November 2021, p 82(08-14). She also admitted that hearing loss may also have nothing to do with cognition and brain function. (However, she did state that individuals with hearing loss have a 1.5 times greater chance of having dementia: Tcpt, 23 November 2021, p 82(16-21)).

She noted that both the lay evidence and medical evidence indicated that the deceased had a history of falls dating back to at least 2015. A history of falls is also said to be a common occurrence in the context of a moderate to advanced stage vascular dementia.

She considered medical records which showed that the deceased had presented with functional, day to day memory decline, prior to October 2016, which was again highly indicative of the presence of a neurodegenerative illness, including vascular dementia.

She also stated that the deceased had presented with a history of poor insight into her self-care and medical needs from at least August 2015, which is consistent with a progressing dementing condition affecting functional abilities. She stated that progressive functional decline and loss of ability to personally self-care, at basic levels, was also a highly common hallmark observation in the context of any neurodegenerative condition, including vascular dementia.

Despite its date, Dr Simpson relied on the Extended Care Plan for the deceased dated 2 November 2018 from Maroba Nursing Home, which states that the deceased (amongst other things):

The report also notes that she “has not been reviewed by a geriatrician or Mental Health Team” and her “behaviour settles after having one to one time” and her behaviour “settles after resting” and “with other intervention”.

I do not place the same emphasis on this document, which appears to have been written about 2 years after the 2016 Will was made. This is not to say the deceased’s condition had not worsened in that two-year period. I accept that it is more likely than not that it did worsen, as Dr Sales acknowledged, by the time he left Maroba, in 2017. The diagnosis in 2018 is, therefore, unsurprising.

Dr Simpson stated that the high level of functional support the deceased received when she was admitted to Maroba Nursing Home in October 2015 supported the presence of at least a moderately advanced dementia at that time. She added that the slow increase in the level of functional care the deceased had received at Maroba Nursing Home from 2015 to the time of her death was also said to be indicative of ongoing neurodegenerative decline consistent with vascular dementia.

However, in cross-examination, Dr Simpson admitted that when the deceased first entered Maroba there was an initial period of “subtle functional improvements”: Tcpt, 24 November 2021, p 109(05-07). She also accepted that despite a few incidents during the first 10 months of 2016, the deceased had been functioning very well, albeit with some assistance: Tcpt, 24 November 2021, p 113(16-21).

Dr Simpson seemed to prefer the evidence of Ms McArthur than Dr Sales, despite the fact that Dr Sales had seen the deceased regularly throughout 2016. She stated that Ms McArthur actually addressed cognition whereas Dr Sales’ evidence did not mention that he addressed, assessed, or looked into, the deceased’s cognitive functioning apart from the consult during her initial admission into Maroba: Tcpt, 24 November 2021, p 105(45-49). (I do not necessarily accept this evidence in light of the evidence given by Dr Sales.)

The oral evidence given by each of Ms McArthur and of Dr Sales, which, of course, Dr Simpson did not see or hear, the details of which have been referred to, gives me cause to believe that the evidence of Dr Sales is to be preferred. I shall refer to the evidence of Ms McArthur which reveals that she was basing her conclusions, not on her own testing of the deceased, but upon information which came from Maroba Nursing Notes, the ACCR report, and speaking to staff: Tcpt, 30 November 2021, p 316(38-41).

On 8 September 2015, Dr Elton from John Hunter Hospital, completed a Mini Mental State Examination (MMSE) on the deceased in which she scored 25 out of 30. Dr Simpson noted that at a clinical level a score of 21-25 out of 30 is consistent with mild dementia. Bearing in mind, this was done at a time when the deceased was quite unwell, it is of some relevance, even though I accept that the MMSE is a screening, rather than a diagnostic, tool.

Dr Simpson stated that the deceased’s results in the Montreal Cognitive Assessment (MOCA) showed objective evidence of declining cognitive function. The deceased scored 15 out of 30 on the MOCA exam completed by Fran Dumont on 14 September 2015. She noted that her review indicated an error in the scoring of the deceased’s MOCA exam and the true result of the deceased was 11 out of 30. (The deceased was incorrectly given a score of 4 out of 5 in the ‘Delayed Recall’ section of the MOCA. This result was gained through use of multiple-choice clues which are not to be used when calculating a person’s overall score. Without the use of clues, the deceased received 0 out of 5, this is the appropriate score.)

Dr Simpson stated that of significant relevance, is that a score of 11/30 or below is classified as having a moderate to severe dementia: Ex JER1/7. She also stated that a score of 11/30 in September 2015 indicated notable impairments and suggests that neurodegenerative illness had been emerging and progressing well before the deceased’s admission to John Hunter Hospital (and the 2016 Will was signed).

In respect of the MOCA, the deceased appeared to have been unable to complete a task involving cognitive flexibility and whilst able to repeat a simple sentence correctly, demonstrated marked difficulty on a more complex verbal fluency task. The deceased was noted to be orientated to day and place but remained disorientated to date, month and year.

Dr Simpson stated that the discrepancy in the deceased’s result from the MOCA and MMSE exams can be explained by the differing nature of the tests. She maintained that the MOCA is a more comprehensive cognitive screening measure than the MMSE. The MOCA looks at higher level executive functioning whilst a common criticism of the MMSE is its lack of sensitivity in examining executive function and lack of complexity. She stated that at the clinical level the MOCA is becoming far more routinely used as a screening measure to identify the presence of dementia. She maintained that the areas in which the deceased had struggled were consistent across both tests: Tcpt, 23 November 2021, p 90(24-30).

When pressed, Dr Simpson stated that as there was no neuroimaging completed of the deceased, including MRI scans or CT scans, the highest she could put it is that the deceased had a possible vascular neurocognitive disorder: Tcpt, 23 November 2021, p 81(46-49).

Dr Simpson stated that based on her review of the medical records there was no evidence that the deceased had suffered from delirium at the time of her admission to John Hunter Hospital in September 2015. No episodes of fluctuating confusion had been noted either. She stated that, collectively, based on the medical and lay evidence, it was not reasonably possible to attribute the deceased’s “very poor cognitive performances on a MOCA” to any transient delirious state. She believed that this opinion was strengthened when one considered the longstanding history of functional decline reported, which supported a long-standing decline in the deceased, rather than a transient and possible delirium related reduction in function. She added that it was further supported by the lack of improvement noted in the deceased’s functional abilities following her transfer to Maroba Nursing Home in October 2015 onwards.

Yet, in cross-examination, Dr Simpson conceded that due to the deceased’s leg injury, age, prescription to opioids, and immobility, the deceased had a variety of factors which would give rise to a significant risk of delirium when she was at John Hunter Hospital in September 2015: Tcpt, 23 November 2021, p 84(50)-85(02), p 85(10-15), p 86(06-08).

Dr Simpson did not seem to place the same significance on the deceased’s improved condition after she moved to Maroba. In this regard, there is the evidence of Dr Sales, which I have accepted, that on 28 October 2015, the deceased was cognitively normal to conversation but that she had let her thigh infection go to a severe level prior to obtaining medical help; that if the deceased had an active infection that might have altered her decision making prior to admission to hospital, and that this also could have affected her knowledge of her bowel function (she was unaware of her bowel frequency). He had given evidence, also, that his recollection of the deceased was that when she came to Maroba, she was not as well as she was a month or two later, after her infection had cleared, her nutrition was looked after by the nursing home staff, and her medications administered correctly.

Dr Simpson stated that the evidence suggested that the deceased demonstrated “ongoing deteriorations in cognitive and functional capacities”: Ex JER1/14.

Dr Simpson’s report stated that the lay evidence indicated a progressive decline in the deceased’s functional abilities involving activities of daily living dating back to at least 2012 onwards. This, she said, was consistent with medical correspondence from John Hunter Hospital which she considered indicated significant functional decline and loss of ability to personally self-care at least 12 months prior to the creation of the 2016 Will.

Again, in cross-examination, Dr Simpson accepted that it was difficult to say, with certainty, how long prior to diagnosis deficits would be apparent to lay people, or at a clinical level, as people progress at different levels: Tcpt, 23 November 2021, p 76(12-13) and p 76(29-30). She noted that for people suffering a mild to moderate degree of dementia, they may be able to maintain a degree of “social façade” in which they are able to socially engage at an appropriate level: Tcpt, 23 November 2021, p 76(29-34). For those suffering from moderate to severe dementia, they might also be able to maintain that social façade but in the majority of patients you would expect them to show some outward signs of deficit in cognition: Tcpt, 23 November 2021, p 76(36-42).

Dr Simpson described social cognition as a wide term where you are looking at “the ability to understand other people’s emotions, and reason through those sorts of things. It’s to do with your executive functioning. So, your ability to control your emotions, control our own personal emotional and self-regulate. Your ability to inhibit in social situations”: Tcpt, 24 November 2021, p 114(04-09). She agreed that at the time of making the Will the deceased social cognition was well-preserved albeit not a high level: Tcpt, 24 November 2021, p 114(27-30).

Dr Simpson concluded that the deceased would not have possessed the cognitive ability to hold all the relevant information in mind at the time required to reason through all the information needed to appreciate the act of making a Will: Ex JER1/19 She stated that, in her opinion, the deceased would have been unable to understand the nature and value of her estate and the persons to whom she wished to include or exclude beyond those in her immediate presence: Ex JER1/20. However, she did agree that if it were found that the deceased described the role of an executor and trustee and accurately described the residue of her estate she would likely have known what a will was: Tcpt, 24 November 2021, p 120(26-36).

She also stated that the deceased would have had significant difficulties, in October 2016, in understanding and retaining the value of her property and the value of the other assets that she possessed: Ex JER1/19. The deceased’s executive functioning skills would have impacted her ability to reason, think flexibly, and reasonably weigh up decisions regarding her estate.

Dr Simpson found that the nature of the deceased’s cognitive impairment would have impacted upon the deceased’s ability to process her family complexities for people outside the Newcastle area. She stated that based on her experience, individuals with moderate stage dementia have a limited real understanding or recollection of the world outside of the individuals that they come into regular contact with: Ex JER1/20. She considered that the deceased would not have had the capacity on 29 October 2016 to identify the natural objects of her testamentary affection: Ex JER1/21.

It appears that Dr Simpson’s diagnosis rests, principally, upon the Montreal Cognitive Assessment conducted on 14 September 2015; the Interpretive Cognitive Score assessed by Ms McArthur on 9 November 2015; the extent to which there was interference in the deceased’s everyday activities; whether a knowledgeable informant reported a significant (for major neurocognitive disorder) or modest (for mild neurocognitive disorder) decline in cognitive function; and whether the cognitive deficits occurred exclusively in the context of a delirium.

As was submitted by counsel for the Plaintiff at the time of the Montreal Cognitive Assessment conducted on 14 September 2015, the deceased was 93 years old; she had undergone a debridement operation on 7 September 2015 with general anaesthetic administered; she had been administered opioid medication on 7, 11, 15 and 18 September 2015; and was recovering from an infection. Each of these is a fairly significant risk factor for a delirium. However, Dr Simpson said that she could not find a record in the nursing notes of a concern regarding confusion or delirium: Tcpt, 23 November 2021, p 87(45)-88(06). (I accept that there is still a possibility of the diagnosis of delirium because it is sometimes under-diagnosed and under-reported. However, Dr Simpson did not make such a diagnosis.)

The deceased also suffered from sensorineural hearing loss, which a number of witnesses said made conversing with her difficult at the best of times, noting that she would look at your face and your mouth to try to work out what you were saying: Tcpt, 25 November 2021, p 274(10-14). This was a common issue with the people that knew her: see, for example Affidavit of Carolyn Dale, 22 May 2020 at par 13 and 15.

Dr Simpson referred in her report to the lay evidence of progressive functional decline dating back to at least 2012 onwards. This was also important to her diagnosis because the diagnostic criteria require cognitive dysfunction to have interfered with independence in everyday activities. She did not seem to take into account, or if she did, place very much weight upon, the other evidence, such as the Plaintiff's evidence concerning the deceased’s ability to pay her bills, or the evidence from Ms Letts concerning the deceased’s shopping and paying for meals.

When referred to this evidence Dr Simpson acknowledged that whilst she would want more information, if the deceased had been self-directed in those activities prior to her admission to the John Hunter Hospital "it would question" the moderate to severe dementia diagnosis, but "doesn't necessarily… counteract… (the) mild to moderate range": Tcpt, 23 November 2021, p 93(34) – 94(31).

In addition, Dr Simpson does not appear to have given any consideration to the lack of evidence, by Penelope, of observing any cognitive problems (other than some repetitive conversations), nor to Andrew’s evidence that he did not consider there to be a serious issue concerning the deceased looking after herself (Tcpt, 25 November 2021, p 272(26-40)) and that if he had observed her to appear confused, or disoriented, or appear to have difficulty remembering who he was, he would have said so in his affidavit: Tcpt, 25 November 2021, p 273(36)-274(27).

Finally, I set out the evidence of Dr Simpson in answers to questions from the Bench (Tcpt, 24 November 2021, p 138(17)- 141(21)):

Looking at the evidence overall, whilst it is likely that the deceased was disoriented and suffered some cognitive impairment when she was in the Acute Care Ward of John Hunter Hospital, her condition improved, significantly, and by the time she came to sign the 2016 Will. As Dr Sales stated, there was an obvious improvement in her condition, generally, in 2016.

Furthermore, as I have accepted the evidence of Mr Hodgins, of Mr Creamer, and of Ms Letts, each of whom is an independent witness, I do not accept the opinion of Dr Simpson that the deceased’s condition, in 2016, was as bad as suggested.

It seems to me that Dr Simpson, who had not met, or treated, the deceased, placed significant emphasis on references in the medical notes that were created when she was in the Acute Care Ward despite agreeing that the deceased was likely to have been fairly unwell when she was in the Acute Care Ward, which was 5 September 2015 to 16 September 2015: Tcpt, 23 November 2021, p 78(03-06). There had been a physical improvement in condition on the deceased’s admission to Belmont Hospital (Tcpt, 23 November 2021, p 95(03)-96(05)) and she was not disorientated on admission to Belmont Hospital: Ex TBM1/312; Tcpt, 23 November 2021, p 95(03-25).

Dr Simpson did not seem to place the same emphasis on the improvement in the deceased’s condition after she moved to Maroba or on the evidence of the lay witnesses who observed the deceased at or about the time she executed the 2016 Will. She also did not seem to place any, or at least, not much weight, on the opinion of Dr Sales.

That this is not an unreasonable conclusion is demonstrated by Dr Simpson confirming, when asked, that “if we assume all that to be true, it does suggest that she has a level of cognitive understanding”. She also added (Tcpt, 24 November 2021, p 130(23)-131(01)):

Neither party referred to the particulars recorded in a Register in New South Wales, pursuant to the Births Deaths and Marriages Registration Act 1995 (NSW) (Ex TBNM1/221), which reveals that the cause of death and duration of the last illness to be “cardiorespiratory arrest hours and complications of artherosclerosis months”. (As I understand it, atherosclerosis is the hardening and narrowing of the arteries in the heart.) The informant referred to in the Death Certificate is identified as the Plaintiff.

(There is no doubt that a Death Certificate has evidentiary effect. Section 49(2) of Births Deaths and Marriages Registration Act provides that a certificate issued under subsection (1)(a) is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry.) The Death Certificate is, and was, not the only way to prove the facts stated in it and it was not the only evidence relevant to the issues to be determined.

I have dealt with some of the submissions made by both counsel in relation to some of the aspects of the matter.

In relation to other aspects not already dealt with, counsel for the Plaintiff made the following submissions:

Counsel for the Defendants submitted that:

Senior counsel also submitted that there were numerous circumstances which were suspicious, or raised doubts about the deceased’s testamentary capacity, including:

On this basis, senior counsel for the Defendants submitted that the Court should not be satisfied that the 2016 Will was the last valid Will of the deceased. He also submitted that, even if Mr Hodgins’ evidence were accepted, it did not provide proof sufficient to establish knowledge and approval or testamentary capacity, because:

The object of the Court is to identify the instrument, or instruments, which represent the last will of the deceased as a free and capable testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, at [44]. The focus for attention is upon identification of her final, formally expressed testamentary intentions.

I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:

In order to obtain probate in solemn form, a person who propounds a will has the legal, or persuasive, burden of satisfying the court that it is the will of the will-maker. The standard of proof is the balance of probabilities. The propounder of the will must show, on the balance of probabilities, that it is the last valid will of the will-maker.

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory, but is derived from case law. Nor does the Court adhere to the language of testamentary capacity in the case law as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham at [6] and [133]-[134].

Furthermore, how the elements would be regarded as having been established, in a given situation, must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.

Before proceeding further, it is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing):

(“Inofficious” in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker’s bounty: Brown v McEnroe (1890) 11 NSWR Eq 134 at 138 (Owen CJ in Eq); McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J)).

As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 at 109. Testamentary capacity should be understood in the context that it is time, situation, person, and task, specific, that is to say, by a consideration of the particular will-maker, suffering from her, or his, particular medical, or mental, conditions, in the particular situation. The degree of complexity of the will-maker’s affairs and her, or his, testamentary intentions, directly affects the level of cognitive function required to make a testamentary instrument.

I recently set out the principles regarding testamentary capacity in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [415] to [424]:

What was written in Banks v Goodfellow remains well settled and has proved sufficiently flexible to take account of developments, particularly in medical understanding. The statement of principle has been described as “a durable formulation” which “has withstood the test of time”: Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449, at [82] and [66]. It has also been described as the “classical exposition”: I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed, 1989, Law Book Co) at [306]).

Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566:

The Court referred to some American authorities. The first was the case of Harrison v Rowan (1820) 3 Washington 580 at 585, where the United States Circuit Court for the district of New Jersey, after referring to the three usual aspects which the law requires, wrote:

The next case referred to was Den v Vancleve (1819) 2 Southard 589, at 660, in which the Supreme Court of Judicature of New Jersey, stated:

Another case was also referred to, Stevens v Vancleve (1822) 4 Washington 267, (which was referred to by Powell J, with approval, in Permanent Trustee Co Ltd v McDermid (Supreme Court (NSW), 25 September 1991, unrep)) where it was said:

Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters. Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect.

This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.

As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]:

White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], wrote:

A comprehension and appreciation of the calls on a will-maker’s bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. As was written in Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280, at [40], by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory….". The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he, or she, must have the capacity to decide for himself, or herself, between competing claims. That means that he, or she, must have the ability to inform himself, or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.

Yet, as was written by Gibson LJ in Hoff v Atherton, at [34]:

Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the will-maker’s mental state did not influence the Will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. However, as Dixon CJ (with Webb and Kitto JJ) wrote in Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67:

In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226, at [65]:

In Carr v Homersham, Basten JA wrote at [47]:

In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at 289-290, Gleeson CJ wrote:

At 290-291, the Court considered it a grave matter to invalidate a will:

Kirby P articulated, at 295, this principle as follows:

In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263, wrote that, to have capacity, the will-maker must:

In Kerr v Badran; Estate of Badran, Windeyer J noted at [49]:

In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained, at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.

The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No. 2), and by White J in D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333, at [95].

In Frizzo v Frizzo [2011] QCA 308, Muir JA (with whom McMurdo P and White JA agreed), at [53], stated:

In In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular and ordinary manner”. Dixon J cited these observations with approval in Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.

In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, was executing a Will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs, at [97]; Brown v Wade [2010] WASC 367, at [95]-[96].

I prefer to identify the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13–30]:

In Bull v Fulton, at 341, Williams J noted:

Yet, Sir James Hannen, over 140 years ago, in Boughton v Knight (1873) LR 3 P&D 64, at 66, wrote:

More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]:

Thus, whilst an explanation for a dramatic change in testamentary intention, such as the complete disinheritance of some of his children, may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.

In Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3, at [32] - [33], the Court wrote:

In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2016 Will was made invites the examination of the position at the time the Will was executed: Smith v Tebbitt (No.2) (1867) L.R. 1 P&D 398, at 436 - 437. Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case.

How the criteria in Banks v Goodfellow would be regarded as satisfied in a given situation “must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity. Whether a determination of testamentary capacity under a single umbrella would suffice or whether there should be separate findings on each of the criteria would depend on the particular circumstances … Whether the judge … considered the criteria together and made a determination on testamentary capacity under a single umbrella or whether he should have made separate findings on each criterion is academic”: Choy Po Chun v Au Wing Lun [2018] HKCA 403, at [23] (Cheung, Yuen, and Kwan JJA).

(I should note, for completeness, that, in this case, it was not suggested that the fourth element in Banks v Goodfellow, which refers to a “disorder of the mind” which poisoned the affections of the testator, perverted his sense of right, or prevented the exercise of his natural faculties, or “an insane delusion” which influenced his testamentary disposition in a way he would not otherwise have done if his mind had been sound, was alleged.)

In addition to showing that the deceased had testamentary capacity, the Plaintiff, as the propounder of the 2016 Will, must also show that she knew and approved its contents. This means no more than that the relevant Will represented the deceased’s testamentary intention.

The requirement for knowledge and approval is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. The requirement of knowledge and approval only arises for consideration if the Court is satisfied that the will-maker had testamentary capacity.

Chadwick LJ in Hoff v Atherton continued:

In Starr v Miller, at [472]-[474], I discussed the development in the law’s approach in situations where knowledge and approval is in issue:

The principles governing knowledge and approval were authoritatively stated in Tobin v Ezekiel. Meagher JA, with whom Basten and Campbell JJA agreed, wrote, at [46] – [48]:

In Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879, Chadwick LJ wrote at [65]:

This passage was quoted with approval by Leeming JA (with whom Meagher and Payne JJA agreed) in Lewis v Lewis [2021] NSWCA 168 at [19]. His Honour also noted, at [20] that “Peter Gibson LJ made the same point at [36] concerning the inappropriateness of rejecting part or all of a will merely because of the court’s disapproval of its propounder”.

The principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement reference to authorities. His Honour said (at 528):

I have also found the following passage in Re Estate of Yip Keung, HCAP 15/2004, unrep, 9 December 2017, A Cheung J, at [71] – [74] to be useful:

When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face: In re R (dec’d) [1950] 2 All ER 117 at 121.

A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 at [2] – [9]. It is not necessary to repeat what is written there.

In Wintle v Nye [1959] 1 WLR 284, at 291, Viscount Simonds described the need fully to assess the extent of the suspicious circumstances where a will had been prepared by a beneficiary:

The Court of Appeal confirmed in Tobin v Ezekiel, at [47]-[48] (Meagher JA with whom Basten and Campbell JJA agreed):

The authorities were referred to in Mekhail v Hana; Mekail v Hana at [139] – [147].

I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.

The starting point is that the burden of proving testamentary capacity and the deceased’s knowledge and approval lies on the Plaintiff, who seeks to propound the 2016 Will. Due execution of the 2016 Will was established. There was no dispute, then, that the evidence, as a whole, raised a doubt as to the deceased’s testamentary capacity. It was conceded that the Plaintiff then had to affirmatively establish that the deceased had testamentary capacity and that she knew and approved the 2016 Will. The question argued was whether she had discharged that burden.

I have closely considered, and reviewed, the evidence of each of the parties. The Plaintiff gave detailed evidence, which for the most part, was not successfully challenged. The Defendants, on the other hand, gave evidence that was extremely limited, and appeared to relate, significantly, to periods some years before the 2016 Will was made. Even if the deceased’s conversations were repetitive, and the range of topics limited, perhaps that reflects more the narrow circumstances in which she was living, both before, and after her move to Maroba, rather than her mental or cognitive state.

Another matter of some relevance is that when the Plaintiff told the family members that the deceased wished to sell the Eleebana property, and when it was sold, apparently, no one questioned the deceased's capacity to enter into the transaction. That no one who was told did so, is relevant to the question of whether the deceased had the requisite testamentary capacity to make the 2016 Will, just a few months before the Contract for Sale and then the Transfer were signed.

Even if the Plaintiff was not immune to factual errors in recall, or not immune to having her recall subconsciously coloured by the delay in making her affidavits, I have accepted her evidence overall. I have also earlier referred to the evidence of Ms Letts, who had known the deceased for many years and who was truly independent. Her evidence does not demonstrate any lack of capacity.

In the present case, there was also direct evidence from both the solicitor who took instructions from the deceased, who drafted the 2016 Will, and who was one of the attesting witnesses, and also from the other attesting witness. They were best placed to give evidence about the events in dispute between the parties. The solicitor was well aware of the capacity issues which could arise particularly with an older will-maker and he asked the attesting witness to be attuned to this issue. Any reservations about Mr Hodgins as a witness three or four years after the events do not cause me to consider that he did not know the fundamental requirements of obtaining proper instructions for the making of a Will.

It is most regrettable that there is an absence of informative contemporary records, which was not available at the hearing, but I am satisfied that the contemporary records in the possession of Mr Hodgins were lost, mislaid, or were unintentionally destroyed. I have treated what Mr Hodgins wrote, and said, with some caution because of this, but I am satisfied that the evidence that he gave was his best, and genuine, recollection, of the events that occurred. The recollection was also corroborated, at least in part, by Mr Creamer, whose evidence made the evidence of Mr Hodgins more compelling.

I am satisfied that Mr Hodgins took instructions from the deceased as to the terms of the 2016 Will, rather than from the Plaintiff; that the deceased explained why she had made no provision for Valmai, and indirectly less provision for Carolyn; and the reasons why she wished to change the 2013 Will in other respects, so as to benefit the Plaintiff. His conversation with the deceased, in regard to the 2016 Will, was not simply perfunctory. He asked her a number of questions in open ended form, rather than in a leading form, to which questions he received appropriate answers. Only he and Mr Creamer were present in the meeting room, with the deceased, during the discussion about the 2016 Will. I am also satisfied that Mr Hodgins read the 2016 Will out loud to the deceased before it was executed by her.

Following the time spent with the deceased, it appears that neither had concerns about her capacity. Whilst it may have been helpful, now, had formal assessment of the deceased’s capacity been done by a medical practitioner, it was not, because of Mr Hodgins’ firm, and expressed, belief, based on his observations and experience, that it was not necessary.

In this regard, Mr Creamer, at least inferentially, came to the same view, as he did not raise any concerns with Mr Hodgins and acted as the second attesting witness.

Both of the attesting witnesses, who were present throughout the discussion, have given evidence that the deceased followed the discussion well and that she gave appropriate responses. In addition, she appears to have remained attentive and focussed. Then, after execution of the 2016 Will, without prompting, the deceased noted that the name of the name of the Plaintiff was spelt incorrectly on the Power of Attorney.

In addition, the contents of the 2016 Will were consistent with the draft Will prepared by Mr Wilson following instructions given to him by the deceased. I am satisfied that, in its expression, each, when prepared, represented what the deceased wanted. This demonstrates also, that the deceased had been thinking about her testamentary intentions some months before she conferred with Mr Hodgins on 29 October 2016. Her decision to change her 2013 Will does not appear to have been an abrupt, or a rashly made, one.

Nor did the terms of the 2016 Will immediately bespeak a concern for the deceased’s capacity, as the 2016 Will appeared to be inofficious. The terms of the Will were straightforward making a number of legacies and then dealing with the residue, a term which the deceased appeared to understand.

Furthermore, this is not a case in which the nature of the deceased’s estate, or the terms of the 2016 Will, were particularly complex. Nor were the terms of the 2016 Will, apart from the residue clause, significantly different to each of her prior Wills, which were in a similar form, with a mixture of family and non-family beneficiaries.

I do not see any basis for doubt that the deceased knew that those with claims on her bounty were the persons for whom she made provision in the 2016 Will. She was also made aware of the contents of her 2013 Will and that she had, then, divided her residuary estate, equally, between the Plaintiff, the Defendants and Carolyn.

Therefore, at the time she executed the 2016 Will, the deceased considered for whom provision ought to be made. In my view, her decision to leave the residue of her estate to the Plaintiff, who had been a loving and caring niece to her throughout their joint lives, and who, for about 7 years prior to the making of the 2016 Will, had been the person primarily involved in the life of the deceased, was understandable.

The other changes were also not inexplicable. That the deceased made less provision, by way of residue, for each of the Defendants, was unsurprising, as acknowledged, at least, by Penelope, who did not expect any provision to be made for her. That the deceased omitted Carolyn as an executor and made less provision for Carolyn, who had been unwell, were also unsurprising and explicable, even though they had maintained a relationship. Carolyn clearly did not play the same role in the life of the deceased as that played by the Plaintiff.

Because it has been raised in relation to Carolyn, it is important to note that there is no requirement that the assessment of the validity of a Will involves a detailed inquiry into the reasons why the will-maker has made a significant change at the time the will is executed. Whilst apparently rational changes to a prior will may support a claim of capacity and apparently irrational changes may undermine it, the Court should not, in a Probate suit, substitute the examination of testamentary capacity with a detailed examination of moral obligation.

Even if the reasons for omitting the Defendants as residuary beneficiaries in the 2016 Will were not explained in detail, or even if her reasons were unreasonable (which I have found they were not), it does not mean that the deceased lacked capacity.

As earlier written, capacity to make a will is to be assessed having regard to the particular will made. I have taken into account the contents of the 2016 Will, which seems to be relatively straight forward, consisting of only 2 pages (the third with only the attestation clause) with 5 simple clauses.

Judged at the time she executed it, the 2016 Will was not irrational on its face. In this regard, the apparent rationality of the 2016 Will, from the deceased’s perspective, is an element of my assessment of capacity. However, I do not conclude that the deceased had testamentary capacity merely because the 2016 Will was rational from her perspective.

Similarly, whilst the opinion of Mr Hodgins that the deceased possessed testamentary capacity is not conclusive, it accords with the conclusions which flow from other objective evidence.

In relation to her medical condition, it is clear that no formal comprehensive medical assessment of testamentary capacity was made. However, the deceased was 94 years old at the time she made the 2016 Will and was somewhat hard of hearing. It was likely that she was repetitive in her conversations. However, even the presence of some cognitive impairment, does not necessarily preclude, and is not necessarily incompatible with, testamentary capacity.

I have carefully considered the evidence of Dr Simpson and of Dr Sales. Dr Simpson never saw, or treated, the deceased. I formed the view that she was not prepared to consider, as truthful, the evidence of some of the lay witnesses, including Mr Hodgins and Mr Creamer. When asked about the evidence of the former, and asked to assume the truth of that evidence, her opinion of the deceased’s cognitive condition appeared to change and became more qualified. (She had only referred to the affidavit evidence of Mr Hodgins in her report, without specifying its contents, in any detail: see paragraph 5.5 of Ex JER1. She did not refer to Mr Creamer’s affidavit at all.)

In fairness to Dr Simpson, her opinion was circumscribed by the quality of the information on which it rested. She was not present when either Mr Hodgins or Mr Creamer gave his evidence and was cross-examined. In this regard, she did not, necessarily, accept the untested evidence of Mr Hodgins. Her opinion was formed before the hearing, which meant it was not based on all the evidence before the Court. Also, she would have been unaware of the email correspondence from Mr Wilson and also the draft Will prepared by him for the deceased in August 2016 which was very similar to the 2016 Will.

However, it seemed to me, from reading her report, and listening to her evidence, that Dr Simpson’s conclusions focussed, principally, on the deceased’s condition whilst she was in The John Hunter Hospital and did not give sufficient weight to the likely improvement in her condition following her treatment there, then at Belmont Hospital, and then over the next 12 months at Maroba. Dr Simpson’s reliance upon the affidavit of Ms McArthur, who, herself, was relying upon medical notes taken whilst the deceased was acutely unwell, or whilst she was recovering, demonstrates the importance to her of the deceased’s medical condition, particularly in late 2015 and then in November 2018 in reaching the conclusions that Dr Simpson did. The assessment of capacity is task, situation, and time, specific.

Dr Simpson noted that Dr Sales did not appear to have carried out a formal assessment. In the light of his evidence, it appears that there was nothing that he observed that alerted him to the need for such assessment to be carried out.

Overall, I have found the evidence of Dr Sales, who had the opportunity of regular contact, and many consultations, with the deceased during the whole of 2016 and beyond even though there was no information available in the medical records provided by him to indicate any formal cognitive screening had been conducted by him, to be more convincing. After all, he had contact with the deceased for about 2 years. He acknowledged it was only towards the end of the 2 year period, that the deceased’s cognitive abilities declined.

In summary, therefore, having carefully considered the evidence and counsels’ helpful submissions, I am satisfied that, at the time she gave instructions for the 2016 Will, and at the time she executed that Will, even if there was some degree of cognitive impairment, bearing in mind her age, the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property, noting, impressively, in my view, that Maroba held some of her money; there was no suggestion of psychopathology affecting her contact with reality; she had an intact intention of how, and to whom, she wished to dispose her assets on her death; and she understood the nature of the changes she was making. She was able to comprehend and appreciate the claims to which he ought to give effect, knowing who the persons were who had a claim on her bounty and she was able to weigh up those claims on her bounty. Importantly, it appears that she had reflected on how her property should be disposed of by will prior to executing the 2016 Will.

Turning next to knowledge and approval, which is independent from testamentary capacity, the concept is concerned with the contents of the 2016 Will, and whether they expressed the deceased’s intentions, and not with the process by which the testamentary intention was formed. In addition, any relevant suspicion must be one that casts doubt on whether the deceased knew and approved the contents of the 2016 Will and must relate to the preparation and execution of that Will.

Having heard, and read, all of the evidence, including the draft Will prepared by Mr Wilson, I am satisfied that the 2016 Will reflected the deceased’s testamentary intentions. That Mr Hodgins read the Will aloud, in the presence of Mr Creamer, to the deceased, before she executed it, is also a relevant fact on this aspect of the case. I do not treat this fact as conclusive evidence that she knew and approved of the contents of it: Lewis v Lewis at [148] (Leeming JA).

The court must consider, and I have considered, all the relevant evidence available in order to determine whether the burden of proof has been discharged by the Plaintiff and I am satisfied that it has.

In addition, I have already referred to the fact that the deceased’s signature on the 2016 Will was attested by Mr Hodgins and Mr Creamer and that the Will contained an attestation clause. Each gave evidence that I have accepted. The conclusion is also reached by an assessment of the other lay, and medical, evidence, bearing upon the deceased’s health to which I have already referred.

I am satisfied that the Plaintiff has proved, affirmatively, even without the benefit of a presumption of knowledge and approval arising from due execution, that the deceased knew and approved of the contents.

There is insufficient evidentiary support for the conclusion that the Plaintiff participated, in a meaningful way, in the preparation and execution of the 2016 Will. Whilst it is true that she obtained the name of the solicitor, Mr Hodgins, from her son, she simply passed on the deceased’s written instructions to him and did not otherwise provide any instructions to him about the contents of the deceased’s Will.

In relation to Mr Wilson, there was no evidence which established, affirmatively, that the Plaintiff had initiated the idea of the deceased making a new will. To the extent that she provided instructions, what she told him, in the email, related to her understanding of the deceased’s instructions, namely to increase the legacy to each of the Defendants. I believe that she was telling the truth. What she communicated to him was against her own pecuniary interests, and confirms that she was not endeavouring to protect, or advance, her own position by involving herself in the preparation of a Will in 2016.

In any event, both Mr Wilson and Mr Hodgins took instructions from the deceased directly. She was not present when Mr Hodgins conferred with the deceased at the time the 2016 Will was signed.

On the whole of the evidence, including the full background of the relationships between each of the parties and the deceased, any doubts that may exist are not sufficiently substantial to prevail over the evidence that tells in favour of the deceased being of sound mind, memory and understanding at the time she executed the 2016 Will and that she knew and approved its contents. Any suspicion of the Court, as alleged by the Defendants, or otherwise, looked at with the appropriate degree of vigilance and jealousy, has been dispelled by affirmative evidence of the deceased’s knowledge and approval of the contents of the 2016 Will. I am satisfied on the balance of probabilities that the deceased did know and approve of the contents of the 2016 Will.

Applying the vigilant and careful scrutiny appropriate, having carefully considered all of the evidence, lay, legal and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec’d); Easter v Griffith, “a grave matter”, I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 or, now, s 140(1) of the Evidence Act 1995 (NSW) that the 2016 Will is the last valid Will of the deceased and that it expressed the mind of the deceased, that she understood what she was doing and its effect, and that it truly represented her testamentary intentions.

Having been persuaded by the Plaintiff that this is a case where the solicitor retained to prepare a Will obtained instructions from the deceased, prepared a draft Will, which he went through with her, formed an opinion as to her testamentary capacity, and also ensured that the deceased knew and approved of the 2016 Will, the Defendants’ Cross-Claim must be dismissed.

The Court orders that: