Glenda Phillips v James Phillips; John Matthew Phillips by his Tutor NSW Trustee & Guardian v James Phillips

William George Phillips was born on 2 December 1922 and died on 22 October 2014 at the age of 91. He was known as Bill. Without disrespect to him or his family, in this judgment I shall refer to Bill and other family members by their given names.

Bill was married to Eileen. Together they had five children: Glenda, Lesley, Robert, John and James. Bill survived Eileen.

Bill and Eileen were involved as pedestrians in a serious motor vehicle accident on 12 May 2005. Bill sustained a significant brain injury. At the time of the accident Eileen was already seriously affected by dementia. Bill was not.

Bill made wills on 31 October 2006 (the “2006 Will”) and 2 June 2008 (the “2008 Will”). On 24 March 2015, James obtained a grant of probate of the 2008 Will. His four siblings have brought family provision claims.

This judgment resolves the question which must be determined before the various family provision claims can be answered: did Bill have testamentary capacity to make the 2008 Will or the 2006 Will?

The parties agreed that, in relation to each will, the question of testamentary capacity would be resolved by answering three questions:

It was common ground between the parties that the first of those questions was to be answered “yes” in relation to both wills. Accordingly, the starting point for the Court’s consideration was the presumption that Bill was mentally competent at the time he made each of the wills.

In relation to the second and third questions, the Court has reached the same conclusion in relation to both wills:

In proceedings 26517 of 2015, Glenda, Lesley and Robert assert that Bill lacked testamentary capacity in relation to both the 2008 Will and the 2006 Will (“Glenda’s proceedings”). Therefore, they say, he died intestate and they claim an order that the grant of probate to James be revoked. Alternatively, they seek further provision out of the estate under whichever is valid of the 2008 Will and the 2006 Will.

James filed a cross-claim seeking declarations that Bill had testamentary capacity in relation to the 2008 Will or, alternatively, the 2006 Will.

In proceedings 26702 of 2015, John seeks provision from Bill’s estate (“John’s proceedings”). John was admitted to Macquarie Psychiatric Hospital in March 2005 and was diagnosed with chronic schizophrenia, a condition for which he was first treated at the age of 19. He is now 56. Since 2005 John has resided at Macquarie Psychiatric Hospital as an involuntary patient. The NSW Trustee and Guardian was appointed as manager of John’s estate by order of the Mental Health Tribunal in January 2015 and brings the proceedings on John’s behalf as his tutor.

During the course of case managing both sets of proceedings, the Court made an order with the consent of the parties that both sets of proceedings should be heard together with the evidence in one being evidence in the other.

The hearing of both proceedings commenced before me on Monday, 27 February 2017 with an estimate of six days. Only five days were required. Mr A Cheshire of Senior Counsel appeared for Glenda, Lesley and Robert in Glenda’s proceedings. Ms K E Burke of Counsel appeared for John in John’s proceedings. Mr K Morrissey of Counsel appeared for James as defendant in both proceedings.

On the first day of the hearing Mr Morrissey made an application on behalf of James to amend James’ cross-claim in Glenda’s proceedings to include a claim for provision if the Court decided that Bill had died intestate. Ms Burke did not oppose that application. Mr Cheshire SC opposed it. The Court allowed the amendment. The reasons for that decision will be published separately. However, one consequence of allowing the amendment was that, in order to ameliorate any prejudice caused to Glenda, Robert and Lesley by the amendment, the Court decided that it should first resolve the issue of Bill’s testamentary capacity. Accordingly, after the luncheon adjournment on the second day of the hearing I made orders which included:

Those prayers are:

The hearing then continued on the basis that, with one exception that is not presently relevant, the Court heard all of the evidence on all of the issues in both proceedings. The parties then addressed only in relation to the separate question, being Bill’s testamentary capacity at the time he made the 2008 Will and, if necessary, the 2006 Will. This judgment determines that separate question.

The present case is somewhat unusual because, unlike the majority of such cases, the primary source of Bill’s incapacity was a traumatic brain injury. That is not to say that underlying congenital dementia did not form part of it. However, because of the injury, the Court has the benefit of a great deal more contemporaneous general medical and neuropsychological evidence about Bill than is often the case, including from protective proceedings which were brought in relation to Bill. Of course, it must be immediately recognised that, with one exception (Dr Lee’s examination for the purpose of his certificate dated 29 May 2008 (see paragraph [74] below)) the focus of the medical examinations at the time was on Bill’s cognitive abilities generally rather than the question of testamentary capacity specifically. Similarly, there is more contemporaneous lay evidence than would otherwise be the case.

The Court therefore had three kinds of evidence. First, there were the contemporaneous medical assessments and other records. Second, there was expert evidence that specifically addressed the question of testamentary capacity. Third, there was lay evidence directed to the same issue. The Court’s conclusions are primarily, but not exclusively, based on the contemporary records. No party suggested that any of those records were less than truthful and accurate. It is difficult to see how any such submission could have been made. Accordingly, the Court finds that the representations of fact or of opinion set out in those contemporary records are reliable and accepts them as such. In view of that, the Court’s fundamental findings of fact are set out in paragraphs [25] to [84] below and are derived from those contemporary records.

The expert medical evidence was all adduced by Mr Cheshire’s clients. It is ultimately telling that James did not tender any independent expert medical evidence to support the proposition that Bill had testamentary capacity at the relevant times.

Dr Stephen Scholem and Dr Mahmoud Abu-Arab both gave evidence not only of their contemporaneous observations, but also of opinions they had formed for the purposes of these proceedings based on their contemporaneous observations. These were to the effect that Bill lacked testamentary capacity in relation to both the 2008 Will and the 2006 Will.

Evidence was also adduced from Ms Melissa Staples, who had produced her report in November 2005 for the purposes of the protective proceedings. She prepared a report for the purposes of these proceedings which, whilst declining to express a final view, said that Bill’s cognitive impairments “give rise to significant doubt about his testamentary capacity on the dates in question” although “they do not, of themselves, preclude capacity to make a will”.

Finally, although not called as a witness in the proceedings by any party, Dr John Lee’s various contemporary observations were in evidence before the Court. Dr Lee was Bill’s regular treating general practitioner. Furthermore, he provided a letter for the purposes of these proceedings setting out his views which was tendered without objection (see paragraph [75] below). The sum of Dr Lee’s evidence, including his letter produced for these proceedings, weighed against James’ case. It is again notable that James did not take issue with the contents of any of Dr Lee’s evidence.

For the purposes of the Court’s fact finding, after setting out the Court’s findings based on the contemporaneous material, I will then set out the specific medical evidence and any findings based upon that evidence.

Finally, several lay witnesses were called, primarily by James (including James himself). Those witnesses all sought to give their recollections of Bill at the time the two wills were made. For the reasons set out below, the evidence of the lay witnesses (apart from their contemporaneous documents) plays little part in the Court’s consideration. The relevant lay evidence is summarised below and any consequent findings of fact are set out.

What follows are the Court’s findings of fact in relation to matters which are either uncontroversial or are derived from independent, contemporary records. All emphases in the evidence have been added.

Bill was born on 2 December 1922.

On 12 May 2005, when Bill was nearly 83, he and Eileen were involved as pedestrians in a serious motor vehicle accident. At the time, Eileen was already suffering from dementia. Bill was not.

After spending some time in the intensive care unit and a general neurosurgical ward at the Royal North Shore Hospital, Bill was discharged and admitted for rehabilitation on 24 May 2005 in the Dixson Community Rehabilitation Unit (“Dixson Unit”) at the Royal Rehabilitation Centre Sydney. The final diagnosis on his discharge summary is recorded as “Closed head injury – base of skull fracture, small frontal contusions on the left and multiple lacerations”. It also records his progress “On discharge – mobilises independently, orientated to place, time etc, although does appear confused at times”.

On 27 June 2005, Bill was discharged from the Dixson Unit. His discharge report on that occasion notes that he had suffered a “traumatic brain injury – pedestrian versus motor bike in 12/05/05”. The discharge report records:

On the same day (27 June 2005), Bill was also seen by Dr Scholem, who was Eileen’s treating general practitioner. Although Bill’s treating general practitioner was Dr Lee, from time to time Bill was seen by Dr Scholem. Dr Scholem’s note records that Bill exhibited “increased vagueness since motor vehicle accident, some unsteadiness of gait”. On that occasion Bill could identify the day of the week, the year, the time of day, the season and perhaps the name of the prime minister, but not the date or month. Dr Scholem’s assessment of that occasion is recorded as “[i]ncreased vagueness from head injury but manageable at home with son, James, living downstairs”.

Bill saw Dr Scholem again on 1 July 2005. Dr Scholem recorded that Bill was “having major problems remembering the doses of his wife’s medication”, which Bill was supervising and administering, and he assessed Bill as having a “significant cognitive decline from pre-injury state”.

On 4 July 2005, Bill was seen by Ms Jacqueline Kalmar, a consultant occupational therapist, in connection with Bill’s CTP claim arising from his accident. Ms Kalmar undertook an “Activities of Daily Living Assessment”. Mr Kalmar’s report included:

Ms Kalmar’s summary of her assessment of Bill included:

On 12 July 2005, Bill saw Dr Lee. The doctor’s note includes “Son, James looking after patient and patient’s wife (also involved with accident) … reduced short term memory 0/3 … Carer’s pension application filled in”. The Court infers that it was a carer’s pension application for James.

On 18 August 2005, Bill saw both Dr Lee and Dr Scholem. Dr Lee’s note says of Bill that he was “Vague and incoherent. Didn’t really know why he came”.

Dr Scholem’s note of Bill’s attendance on 18 August 2005 is to the effect that Bill wanted a referral to Dr Patricia Jungfer (a consultant psychiatrist) and that he had sold his business. He felt his memory was improving a bit. He was able to tell Dr Scholem the date, the month, the year and the time but Dr Scholem noted that Bill was engaging in “some circumlocution”. During examination in chief, Dr Scholem explained the reference to circumlocution as Bill “wasn’t speaking in a straightforward way, it was a way of talking as if he was sort of hiding the fact that he didn’t know what he was saying”. In his written report, Dr Scholem said it was “as if [Bill] was unable to think of the correct words to express himself”.

On 15 September 2005, Bill was reviewed by Dr Alexis Berry, the rehabilitation registrar at the Dixson Unit. Dr Berry’s report to Dr Lee of that date, Dr Berry describes Bill “as an 82-year-old gentleman with a severe traumatic brain injury”. His report includes:

On 20 September 2005, Bill saw Dr Lee. Dr Lee’s notes record Bill as having “increased dementia with decreased short term memory. Decreased ability to make decisions. Increased word finding difficulty.”

On 21 September 2005 Bill, accompanied by a carer, was examined by Dr Scholem. Dr Scholem’s note records “[c]onflict with son James, arguments, for example son being upset that patient let wife fall”. Dr Scholem records that Bill had an “unsteady gait, needs support of one person”. He performed a mini mental state examination (“MMSE”) on Bill. According to Dr Scholem’s notes this was the first time he had conducted an MMSE on Bill. In the course of the test, Bill was unable to say the correct date or month and was only able to remember one out of three words that he had been given to memorise. Dr Scholem’s notes record his assessment of Bill as “[d]ementia mild. Full time carer recommended”.

On 17 October 2005, Bill was seen by Dr Kujan Nagaratnam, a consultant physician/geriatrician, at the request of the CTP insurer. Dr Nagaratnam’s report includes:

On 19 October 2005, Bill was seen by Dr Jungfer on the referral of Dr Scholem. Dr Jungfer gave evidence in the proceedings but was not required for cross-examination. Dr Jungfer’s report of her examination of Bill includes:

In a report dated 5 November 2005, Ms Melissa Staples, a consultant clinical psychologist and neuropsychologist, documented her assessments of Bill undertaken on 4, 5 and 25 October 2005. Her report includes:

On 23 November 2005, Bill saw Dr Scholem, who had received Dr Jungfer’s report. His note of the examination includes:

On 9 February 2006, Bill saw Dr Lee. Dr Lee’s notes include “short term memory 0/3. Decreased insight into problems”.

On 30 March 2006, Bill was seen by Dr Scholem. In the course of his examination in chief, Dr Scholem read his notes of that attendance onto the record, giving explanatory comments as he did so (T146:22–31):

In a report dated 10 April 2006, Crawford Healthcare Management Services (the CTP insurer’s rehabilitation service provider) filed a closure report which stated that:

On 20 April 2006, Bill granted James both a general power of attorney and appointed him as his (Bill’s) enduring guardian. Those documents were executed by Mr Danny Bricknell, Bill’s solicitor. On the same day, Bill also made a will. However, that will was destroyed when the 2006 Will was made. There is no evidence of the contents of the will that Bill made in April 2006. The parties were in agreement that, beyond the fact of it having been made, the April 2006 will was irrelevant to these proceedings.

On 16 August 2006, Bill was seen by Dr Scholem, whose notes of his examination include:

On 31 October 2006, Bill made the 2006 Will, which included:

The 2006 Will was witnessed by Mr Bricknell and Ms Marisa Hannelly, a secretary, who was not called to give evidence.

In late 2006, one of Bill and Eileen’s carers, Ms Anne Grgurevic, set up her own company which took over the care of Mr and Mrs Phillips. Ms Grgurevic provided a care plan to the CTP insurer. The plan included these comments about Bill:

On 8 December 2006 Ms Grgurevic sent a further letter to the CTP insurer, in which she said:

On 11 December 2006, Bill saw Dr Scholem, whose note of the attendance includes:

On 15 January 2007 Dr Scholem saw Bill and Eileen on a home visit. He interpreted his notes during that visit during his evidence in chief (T148:25–28):

Dr Scholem saw Bill again on 7 February, 6 March and 9 March 2007. However his notes of those examinations make no reference to Bill’s mental state. Dr Scholem accepted in evidence that the last examination he performed on Bill was 9 March 2007.

On 20 February 2007, James swore an affidavit in support of proceedings Bill had brought (by James as next friend) in the District Court arising from the accident. That affidavit included:

On 9 March 2007, Gibson DCJ approved the settlement of Bill’s District Court proceedings for a net payment of $1,190,494.08.

Because of the substantial District Court settlement that Bill was to receive as a result of the accident, James made an application in the Protective List of this Court under the Protected Estates Act 1983 (NSW) for a financial management order to be made in respect of his parents’ affairs (the “protective proceedings”). In the proceedings James sought orders including:

On 11 May 2007, Dr Lee swore an affidavit in the protective proceedings in which he said:

On 14 May 2007, Bill saw Dr Lee, whose notes of that consultation include:

On 28 September 2007, Dr Abu-Arab swore an affidavit in the protective proceedings which included:

Attached to Dr Abu-Arab’s affidavit was his report, which included notes of his examination of Mr Phillips and his clinical conclusions. These included:

On 11 October 2007, Dr Lee swore a further affidavit in the protective proceedings, which included:

On 11 October 2007 James swore an affidavit in the protective proceedings which included:

On 11 January 2008 Bill saw Dr Lee, whose note of the attendance includes “Short term memory poor and much the same. Dependent on carer 24/7.”

On 19 February 2008, this Court made orders in the protective proceedings that Bill was incapable of managing his affairs and ordered that the Trust Company of Australia Limited (“Trust Co”) be appointed manager of Bill’s estate.

On 12 May 2008, Bill and James attended on Mr Bricknell for an hour. Looking at Mr Bricknell’s one page note of that conference, nothing in it suggests that instructions were given for a new will from Bill. The focus appears to have been the possibility of a statutory will for Eileen. Mr Bricknell’s note at the bottom of the page reads “Court application to make will for wife? They enquire and speak to DWB [Mr Bricknell] again”. Bill and Eileen’s carer’s note for that day simply records “Bill was awake, had a cup of tea with James and then both left to attend an appointment together”.

On 16 May 2008, Mr Bricknell had a telephone attendance with Ms Clare Stanford from Trust Co. From Mr Bricknell’s note, it appears that Ms Stanford confirmed that there was only a financial management order made by the Supreme Court and no guardianship order. Mr Bricknell’s note concludes: “Query: Effect intestacy laws and/or Family Provision Act”.

On 23 May 2008, Mr Bricknell had another telephone conversation with someone at Trust Co.

Mr Bricknell’s file also contains notes which Mr Bricknell accepted were made by his employed solicitor, Ms Susan Rooke. Ms Rooke no longer works for Mr Bricknell and was not called by any party to give evidence. Ms Rooke’s notes are undated. However, from their position in the file the Court infers they were created around May 2008. There are two telephone message slips from which the Court infers that Ms Rooke telephoned Dr Scholem, who returned her call. Ms Rooke subsequently spoke to Dr Scholem. The Court finds that Ms Rooke made a note of what Dr Scholem told her during that conversation. Her note includes:

By reference to Dr Scholem’s notes, including of his December 2006 examination of Bill (see paragraph [53] above), the Court finds that Dr Scholem told Ms Rooke that Bill would have to see a doctor concerning his state of mind and that Bill was incompetent to make a will.

Mr Bricknell has no recollection of ever seeing Ms Rooke’s note or that she had ever made him aware of the views expressed by Dr Scholem.

On Thursday, 29 May 2008, Bill was seen by Dr Lee. Dr Lee’s note at that attendance was:

The medical certificate (the “Certificate”) was provided to Mr Bricknell. It stated:

For the purposes of these proceedings, the solicitors for Glenda, Lesley and Robert wrote to Dr Lee and asked him to “advise what you meant precisely by “minor changes” having regard to the deceased’s condition at the relevant time”. Dr Lee’s written response was tendered in evidence without objection. I was informed that Dr Lee had indicated that he would not cooperate further with either party and neither party subpoenaed him to give evidence. Dr Lee’s response stated:

Mr Bricknell accepted in his evidence that, if he had been given the information set out in the preceding paragraph by way of further explanation from Dr Lee about his medical certificate, he (Mr Bricknell) would not have proceeded with making the 2008 Will for Bill.

The following Monday, 2 June 2008, Bill and James attended Mr Bricknell. Mr Bricknell’s attendance note is sparse and appears to address matters arising from the intestacy of Eileen. That is how Mr Bricknell interpreted his notes. His notes are completely silent in relation to the circumstances in which Bill made the 2008 Will in Mr Bricknell’s presence on that day. The 2008 Will included:

The 2008 Will was witnessed by Mr Bricknell and a J Creighton, a secretary, who was not called to give evidence.

Bill and Eileen’s carer’s notes for 2 June 2008 make no reference to Bill leaving home for any kind of appointment. Nor is there anything in the notes which sheds any light one way or the other on Bill’s cognitive ability on that day.

Eileen died on 13 August 2012.

Bill died on 2 October 2014.

Probate of the 2008 Will was granted to James on 24 March 2015.

Glenda, Lesley and Robert filed their summons for provision on 13 May 2015.

John (by his tutor NSW Trustee and Guardian) filed his summons for provision on 8 September 2015.

The first medical expert was Dr Scholem. He is a general practitioner who has been in private practice since 1982. He graduated with a Bachelor of Medicine and a Bachelor of Surgery with second class Honours from Sydney University in 1978.

Although Dr Scholem was Eileen’s regular general practitioner, he also attended to Bill from time to time. He saw Bill professionally on 22 occasions between 22 September 2003 and 9 March 2007. He prepared a report for these proceedings based on his notes of his attendances on Bill. That report concluded that “[f]rom my examination of Mr Phillips between June 2005 and March 2007 I have no difficulty in confirming that he did not have testamentary capacity throughout that period in that he had disordered thinking with lack of insight including lack of such basic knowledge as the number of his children”. That conclusion was expressed in answer to a question which drew his attention to the test in Banks v Goodfellow.

There was a telling moment during Dr Scholem’s cross-examination when Mr Morrissey put to him a series of assumptions to the effect of Bill having given instructions as to the precise matters set out in the 2006 Will. Mr Morrissey suggested to Dr Scholem that Bill had capacity to give those instructions, to which Dr Scholem replied with what I took to be genuine amazement by saying “not in a pink fit”. In submission, Mr Morrissey sought to criticise that answer as demonstrating lack of objectivity on Dr Scholem’s part. I do not accept that criticism. Dr Scholem’s reaction struck me rather as one of being genuine surprise that anyone would have suggested that Bill had testamentary capacity at the time of the 2006 Will.

Dr Scholem’s views on that point were further elucidated in re-examination (T162:1–48):

I formed the impression of Dr Scholem that he was a diligent and experienced general practitioner. In the witness box he was careful and impressive. I had no doubt about his independence. I accept his evidence that Bill did not have testamentary capacity at the time he made the 2006 Will.

In relation to the 2008 Will, I have not overlooked the fact that Dr Scholem’s last examination of Bill was in March 2007. Two things need to be said about this. First, it appears that he was prepared to express that opinion again when asked about Bill’s capacity in May 2008 by Ms Rooke of Mr Bricknell’s office. Second, while some of the records set out above occasionally referred to what might be described as Bill having a “slightly better day”, there is little in that evidence to suggest any prospect of real recovery and there are numerous references to likely deterioration. So understood, I have taken Dr Scholem’s evidence into account (although according it slightly less weight) in reaching my conclusion in relation to the 2008 Will. I infer accordingly that Bill’s cognitive ability in June 2008 would have been no better than it was as described by Dr Scholem as at October 2006 and in all likelihood would have deteriorated further from that point.

Finally, my acceptance of Dr Scholem’s evidence has been fortified by the fact that there was no real challenge to his opinions either in cross-examination or in James’ final submissions.

The next medical expert was Dr Abu-Arab. He is a well-qualified and experienced clinical psychologist. Both his written material and his evidence in the witness box left me in no doubt as to his independence and objectivity.

Although Dr Abu-Arab only saw Bill once, on 28 September 2007 (see paragraphs [61] to [62] above), his notes were extensive and he prepared a full report at the time. He also had available to him the 2005 report of Ms Staples. He prepared a report for these proceedings at the request of Mr Cheshire’s clients in which he concluded:

Dr Abu-Arab also gave this evidence in the course of re-examination [T204:46–T205:31]:

I accept Dr Abu-Arab’s expert opinion that Bill lacked testamentary capacity at the time he made the 2008 Will. In doing so, I accept Mr Cheshire’s submissions that the Dr Abu-Arab’s conclusion was well supported by his observations, including an MMSE score of 18/30. Furthermore, I accept that Dr Abu-Arab’s evidence is fortified by the fact that it was never put to Dr Abu-Arab in cross-examination that his opinion was wrong. The cross-examination dealt with propositions to which Dr Abu-Arab readily and properly acceded, such as that he would have been assisted with further information concerning the 2008 Will and that Bill may have had good days and bad days, including that on some days Bill may well have been able to remember correctly the names of all of his children. However, in that regard I also accept Dr Abu-Arab’s evidence in re-examination that “good days and bad days” are more usual in conditions not caused by trauma.

Dr Abu-Arab’s evidence has informed my conclusion both that there was a doubt about Bill’s testamentary capacity at the time he made the 2008 Will and that the doubt has not been dispelled.

The third medical expert was Dr Lee. As I have noted in paragraph [75] above, neither party called Dr Lee and each was content to rely upon his various examination notes of Bill, the Certificate and his explanatory letter (see paragraphs [74] to [75] above). Dr Lee’s clinical notes, which are reproduced above — and which all suggest Bill lacked capacity — have informed my conclusion that there is a real doubt about Bill’s capacity in relation to both wills. I consider the balance of Dr Lee’s evidence in paragraphs [147] to [150] below when considering whether the evidence of the circumstances surrounding the execution of the 2008 Will are sufficient to displace the doubt which the Court is satisfied exists about Bill’s testamentary capacity at that time.

The fourth and final medical professional whose evidence was available to the Court is Ms Staples, a consultant clinical psychologist and neuropsychologist. Ms Staples provided a report in November 2005 (see paragraph [42] above). She also prepared a report for the purposes of these proceedings which included:

In his evidence, James did not take issue with the observations of Bill recorded in either Ms Staples’ 2005 report or her report for the purposes of these proceedings. Ms Staples was not required for cross-examination.

The significance of her evidence for my reasoning is twofold. First, I have relied upon her observation in her report prepared for these proceedings as to there being “considerable doubt as to Mr Phillips’ capacity to make a will” in October 2005 to inform my conclusion that there exists a doubt as to his testamentary capacity in relation to the 2006 Will. When combined with other evidence to the effect that there was no real prospect of any significant improvement in Bill’s condition, I have also taken into account her evidence in forming my conclusion that there is a doubt about Bill’s testamentary capacity in relation to the 2008 Will.

Second, none of Ms Staples’ evidence could possibly be said to have assisted James in discharging his forensic burden, a doubt having been established, to satisfy the Court that Bill had testamentary capacity in relation to either of the wills. On the contrary, her evidence adds some limited weight to a conclusion that James has failed to discharge his onus of demonstrating his father’s testamentary capacity at the relevant times.

Mr Cheshire placed only minimal reliance on the evidence of Glenda, Lesley and Robert. That was not because of any implicit or explicit concession that their evidence in relation to their father’s capacity was unreliable. Rather, he accepted that, for differing reasons, they had fallen out with James. This meant they did not attend the family home as regularly as they otherwise might have. Nevertheless, they did see their parents from time to time. Each of them gave evidence broadly consistent with the medical evidence, painting a picture of Bill’s gradually increasing frustration and confusion, and cognitive decline. In his affidavit responses, James took issue with their evidence only in some minor respects. This has to be contrasted with his evidence in the witness box where he gave increasingly strident denials of his siblings’ evidence as though to say, in effect, that Bill’s difficulties were minimal.

Glenda, Lesley and Robert relied on two other lay witnesses, Ms Anne Grgurevic and Ms Lorraine Bruinink.

Ms Grgurevic is a nurse/carer who looked after Bill and Eileen from 2005 until June 2007. In broad terms, her evidence was that Mr Phillips was always very confused. In his affidavit in reply James did not challenge these two paragraphs of Ms Grgurevic’s affidavit evidence:

Ms Grgurevic was also the author of two important pieces of contemporaneous evidence. First, there was a pointed summary about Bill’s circumstances in a letter to the CTP insurer dated 8 December 2006 (see paragraph [52] above). Second, in a care plan which she prepared around the same time she noted that “Bill becomes confused and disoriented with any change no matter how minor. A good way to overcome this is to put an idea in his head and think it was his idea. Put the explanation and thought process to him before changing any details” (see paragraph [51] above).

In assessing Ms Grgurevic’s evidence, I also note, however, that in that same care plan (and to some extent inconsistently with her evidence in paragraph 9 of her affidavit — see paragraph [104] above) she said:

Leave was granted to rely on Ms Grgurevic’s affidavit notwithstanding she was unavailable for cross-examination. This was because she was undergoing treatment for a terminal illness. The way such evidence should be treated was considered by Hallen J in Fulton v Fulton [2014] NSWSC 619:

Mindful of the approach just referred to, in my view no discount needs to be made in relation to Ms Grgurevic’s contemporaneous documents (see paragraphs [51] and [52] above). I accept them as accurate according to their terms. However, I have only given weight to Ms Grgurevic’s affidavit evidence to the extent to which it is corroborated by contemporaneous records or other witnesses. That conclusion is not a criticism of Ms Grgurevic, still less a finding that her evidence should not be accepted. However, her inability to be cross-examined in circumstances where her affidavit evidence goes to the central issue of Bill’s capacity and where, to some extent at least, there are inconsistencies between that evidence and her contemporary documents (see paragraph [106] above) which were not able to be explored in cross-examination, in my view it is appropriate to treat her affidavit evidence only in the way in which I have just described.

Nevertheless, even with the limitation just referred to, Ms Grgurevic’s affidavit evidence is a matter to which I have given a small amount of weight in reaching my conclusion that there is a serious doubt about Bill’s capacity to have made the 2006 Will, because it is consistent with the medical evidence. Again, on the basis that there is no suggestion that Bill’s condition improved or was likely to improve, her evidence has also played a small, but not decisive, part in my conclusion that there is real doubt about Bill’s capacity to make the 2008 Will. I have also taken her evidence into account to the same extent, mutatis mutandis, in reaching my conclusion that James has failed to satisfy the onus of demonstrating that Bill did have capacity in relation to either of the wills.

Ms Bruinink gave evidence that she commenced working as a carer for Bill and Eileen in April or May 2008 and remained in that role until Bill’s death. Her evidence was that while Bill could feed himself, he was very vague and confused all of the time. She said that by 2009 Bill’s condition had worsened and he had become even more vague and confused.

A difficulty with Ms Bruinink’s evidence is that the Court is satisfied that she made an honest error about when she started working for Bill and Eileen. James tendered evidence of pay received by Mrs Bruinink from Trust Co no earlier than July 2009 and the Court is satisfied that is in fact when she commenced.

Notwithstanding this honest error on her part, her evidence remains of some limited assistance. While she was cross-examined vigorously in relation to her starting date of her employment, she was not cross-examined in relation to her evidence relevant to Bill’s lack of capacity. I am satisfied that her evidence relates to a period commencing in around July 2009. Nevertheless, consistent with a lack of evidence that Bill’s condition would ever improve and the other evidence that his condition in fact deteriorated, I have given Ms Bruinink’s evidence some small, but far from decisive, weight in my conclusion both as to the existence of circumstances calling Bill’s capacity into question and James’ failure to discharge his onus on the question of capacity in relation to the 2008 Will only.

James relied on three lay witnesses: Ms Barbara Rizk, his own evidence and the evidence of Mr Danny Bricknell, the solicitor who prepared and witnessed both the 2006 Will and the 2008 Will. Mr Bricknell’s evidence is considered in paragraphs [141] to [146] and [159] below in the context of whether James has discharged the onus of demonstrating that Bill had capacity in relation to either of those wills. I did, however, also take his evidence (such as it is) into account in concluding there was a doubt about Bill’s capacity in relation to the 2008 Will.

Ms Rizk was a carer who looked after Bill and Eileen from July 2007, initially part time and then full time. Her affidavit evidence covered the period from 2007 to 2011. Her description of Bill from 2007 to 2008 paints a picture very different from the evidence of the various medical witnesses. She described Bill as friendly and talkative, although he would repeat himself often. He would reminisce to her and recite Henry Lawson poetry. He knew who he was, he knew who his wife was and he spent a lot of time talking to her. According to Ms Rizk, Bill never spoke badly to or of any of his children and was never rude to anyone. She and another carer would take Bill and Eileen up to the Cox’s Road shops. Bill would chat to the shop owners. Bill would open his mail when it arrived and read it.

During the course of her cross-examination, I formed a strong impression that Ms Rizk was not an independent witness who was trying to give her evidence to the best of her recollection without regard to whose case it might benefit. Ms Rizk was clearly very much “in James’ camp”. For the reasons advanced by Mr Cheshire, I have approached her evidence with caution and given it little or no weight, save to the extent it was supported by contemporaneous evidence. Those reasons are:

Turning to James’ evidence, for the reasons which follow I am unable to accept James as a reliable witness on any question in relation to Bill’s capacity unless it is inherently likely, supported by contemporaneous records or is otherwise against interest. James sought to minimise or deflect any evidence which might be seen as casting doubt on Bill’s capacity. He refused to accept obvious propositions, even in the face of contemporaneous documents.

James did not present as a witness who was doing his best to tell the truth. Rather, he appeared determined to present a version of events which favoured his case. However, as I develop below, that included some glaring omissions in relation to the circumstances of the creation of the 2006 Will and the 2008 Will. In expressing these conclusions, I should note that they are limited only to the question of James’ evidence about Bill’s capacity. While I have heard all of James’ evidence (with the possible exception of some further cross-examination in relation to his assets should his claim for provision proceed), I have only been addressed by the parties on the issue of Bill’s capacity.

There are four broad areas in which James’ evidence did not assist his case and are the basis of the unfavourable assessment the Court has reached about his reliability as a witness. First, much of James’ evidence in these proceedings was inconsistent with the evidence he had given in his affidavits in support of the approval of the settlement of Bill’s District Court proceedings and for the protective proceedings. Those affidavits were generally consistent with the various medical reports suggesting that Bill had ongoing, serious cognitive difficulties. Examples of James’ inconsistent evidence, which seriously undermined him as a witness of credit on this issue, included:

The second major evidentiary area which informs the Court’s conclusion concerning James’ credit is the consideration that was given in 2008 to obtaining a statutory will for Eileen.

Despite his denials, it is clear that James had a real interest in the question of a statutory will for Eileen. In reaching this conclusion the Court accepts Mr Cheshire’s submission that James’ assertion in the witness box that he did not know the contents of his father’s wills is not credible. There are two reasons for this:

In circumstances where James knew that he was the principal beneficiary under the 2006 Will and the 2008 Will, James had every interest to ensure that the statutory will that mirrored Bill’s will was created. If Eileen predeceased Bill, then James was the principal beneficiary of the estate, in particular taking the family home. At all material times, Eileen was incapable of making a will so that, if Bill predeceased Eileen, James would only be entitled to one fifth of her estate on intestacy.

The high point of James’ denials of any involvement in the proposed statutory will of Eileen was (T248:10–12):

James gave evidence — which the Court cannot accept — that others were driving the process for a statutory will. This flies in the face of the contemporaneous evidence in Mr Bricknell’s file. James is recorded as being present at the conferences. After Mr Bricknell had written to Trust Co inquiring whether it would be prepared to fund the application for a statutory will for Eileen, Mr Bricknell received a reply which caused him to write to Bill to “make an appointment for yourself and James” to speak to him about how to respond to Trust Co’s letter. After Trust Co had refused the request, Mr Bricknell wrote to Bill saying that he had “discussed this (the refusal) with James after our telephone call with them last week. Could you please get James to give us a ring so we can discuss the matter further”. The next letter on the subject from Mr Bricknell to Bill bears the salutation “Dear Bill (and James)”. It is by reference to such contemporaneous correspondence that the Court has concluded that James’ attempts to minimise or deny his involvement in the statutory will inquiries are completely incredible.

The third matter is that the episode of the statutory will concluded with a letter from Trust Co to Mr Bricknell dated 18 November 2008 which stated:

In the context of everything that had gone before in relation to the statutory will, the Court has no doubt that James’ motivation in procuring that letter was to protect his position to make a claim against his parents’ estates as best he could once it was apparent that the possibility of Eileen having a statutory will mirroring Bill’s had come to nothing. Notwithstanding the clear statement in the letter that had been provided at James’ request, James sought to give evidence — which again the Court cannot accept — which was to this effect:

The final aspect of James’ evidence which needs to be considered is in connection with Mr Cheshire’s submission that there was a “stark absence of detail in James’ evidence” concerning the circumstances in which the 2006 Will and the 2008 Will had been made. The submission was that, in accordance with the decision in Commercial Union Insurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 (“Ferrcom”), an inference favourable to James (in this case that Bill had testamentary capacity) should not be drawn when James had given no evidence of his observations of his father at the time those wills were executed in circumstances where it was obvious that James could have done so. The often cited passage from Ferrcom is the judgment of Handley JA (with whom Kirby P agreed, Priestley JA not deciding) at 418:

James’ affidavits in chief say almost nothing about the circumstances in which Bill made the 2006 Will and the 2008 Will. However, there was ample evidence that James lived with Bill and Eileen at all material times and provided assistance to them. He attended medical appointments with Bill. James accepted that he took Bill to see Mr Bricknell for the appointments at which both the 2006 Will and the 2008 Will were executed. In the absence of an express statement from James that he had no recollection about Bill’s condition at the relevant times, I infer that James refrained from giving evidence about his father’s condition at the time the wills were executed because it would not have assisted his case. Applying Ferrcom, the Court is less likely to draw an inference in favour of James’ case from all of the evidence, including such other evidence as he adduced on the question of capacity at the time the 2006 Will and the 2008 Will were executed. As it happens, the Court has concluded that evidence — alone or in combination with all of the evidence — is insufficient for James to discharge his onus of demonstrating that Bill had capacity in relation to either will. The Court’s reluctance to draw an inference in favour of James from that evidence reinforces that conclusion.

There was no dispute between the parties as to the applicable legal principles. It is convenient to record at the outset that it was common ground that the fact that this Court had made an order in relation to Bill under the Protected Estates Act 1983 (NSW) did not lead to the conclusion that Bill was conclusively to be presumed to have lacked testamentary capacity: Perpetual Trustee Company Ltd v Fairlie-Cunninghame & Anor (1993) 32 NSWLR 377 (Powell J). However, while that may be so, I accept Mr Cheshire’s submission that, in many cases (of which I consider this case is an example), the fact that a person has been found incapable of managing their financial affairs provides a good starting point for establishing a doubt about that person’s testamentary capacity.

The classic expression of the test for testamentary capacity was stated by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

The Court’s attention was then drawn to the judgment of Meagher JA (with whom Basten JA agreed) in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285:

The parties also relied on the helpful summary of the law by Hallen ASJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275:

Mr Morrissey also relied on the observation by Windeyer J in Loupos v Demirgelis [2008] NSWSC 1207 at [55] that “[c]ognitive failure does not of itself mean there is no capacity to make a will. It is the extent of the failure which bears upon this.” To that I would respectfully add his Honour’s observations at [54] that:

In Loupos, Mr Morrissey submitted, his Honour had found the deceased had the requisite capacity to make his will, notwithstanding the evidence that eleven weeks after executing that will the deceased had an MMSE score of 13/30 which indicated severe cognitive impairment. However, the Court notes that in Loupos his Honour was primarily influenced by the unchallenged evidence of a large number of lay witnesses, especially on the topic of the deceased’s memory. That is not this case.

Finally, I have also relied upon Lindsay J’s recent summary in Estate Stojic, Deceased [2017] NSWSC 168:

The contemporaneous medical evidence is, in and of itself, sufficient to raise a doubt about Bill’s testamentary capacity in relation to both wills. That conclusion is only fortified when the medical evidence prepared for these proceedings (from doctors giving their opinions based upon their own earlier observations of Bill) and the evidence led from James and others in relation to both the District Court proceedings and the protective proceedings are added to the equation.

Although Mr Morrissey submitted in relation to both wills that there was insufficient material to raise a doubt, he, with respect, rightly focused his arguments on the question of whether testamentary capacity had been established in relation to both wills. Mr Cheshire, on the other hand, submitted that the evidence was so strong in relation to both wills that, while the Court did not have to go so far, it could make a positive finding that Bill lacked testamentary capacity at the time he made the 2006 Will and the 2008 Will.

To demonstrate that Bill had testamentary capacity at the time he made the 2008 Will, Mr Morrissey placed heavy emphasis on the affidavit evidence of Bill’s solicitor, Mr Bricknell, and the Certificate. He submitted that the differences between the 2006 Will and the 2008 Will constituted “minor changes” within the meaning of Dr Lee’s certificate.

Mr Morrissey also drew attention to Ms Rizk’s evidence of her observations about Bill’s capacity. That evidence does not assist James’ case for three reasons:

Lacking any medical evidence called in his own case, Mr Morrissey was confined (in relation to the 2008 Will) to criticising the evidence of Dr Abu-Arab. He submitted that Dr Abu-Arab’s evidence was not reliable because the doctor had not been provided with the 2008 Will, details of it or the notes of Mr Bricknell. That submission may be accepted as far as it goes. Dr Abu-Arab, properly, conceded that he would have been assisted in forming his opinions had he been given those documents. However, the force of the criticism of Dr Abu-Arab’s evidence is completely dissipated by the fact that in cross-examining Dr Abu-Arab, Mr Morrissey did not put any of those documents to the doctor with a view to establishing that his opinion would have been any different had he seen that material. For the reasons given in paragraphs [92] to [96] above, the Court accepts Dr Abu-Arab’s opinion that Bill lacked testamentary capacity at the time he made the 2008 Will.

At this point, I note again that the Court’s determination as to whether James has satisfied his onus to establish Bill’s testamentary capacity as at the date of execution of the 2008 Will must be determined by having regard to all the evidence. I have considered all of the evidence. Absent consideration of Mr Bricknell’s evidence and the Certificate, the totality of the evidence which I have set out above has not satisfied me, on the balance of probabilities having regard to the seriousness of the question, that Bill had testamentary capacity on the day he made the 2008 Will. It is therefore necessary to examine Mr Bricknell’s evidence and the Certificate with the vigilance required by the authorities.

In testamentary capacity cases the evidence of the solicitor who took instructions and drafted and witnessed the will can be of the utmost importance. In this case, and without intending any criticism of him, Mr Bricknell’s evidence is of little assistance on the question of testamentary capacity in relation to the 2008 Will for the following reasons:

Putting Ms Rooke’s notes to one side, Mr Bricknell’s file is barely informative. It contains nothing relating to Bill’s capacity except for the Certificate. Mr Bricknell had no actual recollection of raising the issue of Bill’s capacity. Furthermore, although the file contains the 2006 Will, there is no document setting out the taking of instructions to make the changes which resulted in the 2008 Will, except for a loose, typed sheet recording the changes to the pecuniary gifts which states:

There was no evidence from Mr Bricknell or anyone else about the provenance of that document. It does not bear any holes which would suggest that it had ever been stapled or placed or pinned with other correspondence in the file. It does appear to have been folded in eight as though it had once been in an envelope or someone’s pocket. There is also a loose photocopy of the document in the file. Nevertheless, the Court is unable to make any findings about the document.

Putting Ms Mr Bricknell’s file note of the date of the 2008 Will — 2 June 2008 — is attached as Schedule 1. Mr Bricknell accepted that on its face it appeared more to relate to Eileen’s intestate estate but in part could also relate to Bill’s estate. Importantly for present purposes, it makes no reference to any specific instructions concerning the 2008 Will, the Certificate or any record of the circumstances attending the execution of the 2008 Will.

There is also an additional page, which Mr Bricknell thought would not have been made during any conference, but afterwards, being some drafting (which was ultimately included in the 2008 Will):

For completeness I should record there is in Mr Bricknell’s file what appears to be an intermediate draft of the 2008 Will. A copy of the first three pages is Schedule 2 to this judgment. I describe it as “intermediate” because the specific bequests to Lesley, Glenda, Robert and John have been changed to the amounts which appear in the 2008 Will. However, the earlier parts of clause 3 are those which appear in the 2006 Will, but with handwritten amendments pointing to the final form of the 2008 Will. I infer from this that Mr Bricknell may have still had the 2006 Will on his word processing system and used it to create the 2008 Will. However, the Court can make no other inferences about the circumstances in which this “intermediate” draft was created.

It will be recalled that the Certificate provides that “This is to certify that Mr William Phillips is competent to make minor changes to his will. He will need simple and clear clarification of his changes in the will”. I have assumed in favour of James’ case that the Certificate was provided to Mr Bricknell at or prior to the time the 2008 Will was executed.

Even in its own terms, the Certificate raises as many questions as it answers. What are “minor changes” to the will? Was “simple and clear clarification” of any changes given? Does this qualification mean that, in Dr Lee’s opinion, Bill was only capable of understanding something he was told if it was “simple and clear”?

A further difficulty is that insofar as James relies on the Certificate as evidence of Bill’s testamentary capacity, it must be read in the light of Dr Lee’s explanation of the Certificate set out in paragraph [75] above. That explanation (see, in particular, “I used the wording “minor changes” in the certificate because of my doubts about his capacity to make clear and sound decisions regarding his will … I would certainly not have been able to certify that Mr William George Phillips was able to make “major” changes to his will”) demonstrates just how qualified Dr Lee’s view of Bill’s capacity at the time really was.

There is no suggestion that Dr Lee was provided with a copy of the changes proposed to be made from the 2006 Will to the 2008 Will. I do not accept Mr Morrissey’s submission that those changes can confidently or necessarily be described as “minor” and the Court has no evidence what Dr Lee meant by “minor”. Furthermore, there is no evidence that Bill was ever provided with the “simple and clear clarification” contemplated by Dr Lee. If that had, in fact, been done and there was evidence upon which the Court could be satisfied that it was done and that Bill had demonstrated a sufficient understanding of those explanations, then the outcome of these proceedings in relation to the 2008 Will might have been quite different. However, no such evidence exists and there are no primary facts which have been proven that would enable the Court to infer it had been done by Mr Bricknell or understood by Bill.

Two additional observations need to be made about the submission that the changes were “minor”.

First, insofar as the change involved departing from the income arrangement for Eileen under the 2006 Will and leaving her the whole of his estate absolutely, it involves making a significant judgment about what would be most advantageous for Eileen. Similarly, the changes in the pecuniary legacies (see paragraph [142] above) involve making some evaluative judgments to discriminate between those beneficiaries. The overall schemes set out in Clause 3 of the two wills may appear to be superficially similar, but are materially different ways of achieving what it might be accepted was the same result — providing for Eileen and then dividing the estate. In my view, both types of change involve a level of sophistication that the accumulation of medical and other evidence which I have accepted leaves me seriously doubtful that Bill possessed.

Second, I accept Mr Cheshire’s submission that when considering capacity some caution should be exercised in focussing on “changes” and asking if the testator could understand those changes. The question of capacity is not to be decided incrementally or in a piecemeal fashion from will to will. By this I mean reasoning that if the testator had capacity to make a will containing Clauses 1, 2, 3 and 4, one need only be satisfied the testator could make the change to Clause 4 if the other clauses remain the same in the subsequent will. While the nature of any changes are not irrelevant to a capacity inquiry (and can be highly relevant, for example, if undue influence or other misfeasance is alleged), the basic question remains did the testator have the capacity to make the whole of the later will? That proposition is vindicated where, as here, the later will expressly revokes all previous wills and testamentary dispositions.

Having considered Mr Bricknell’s evidence and the Certificate, it is therefore now necessary to return to the fundamental question of whether, on the basis of all the evidence, the Court is satisfied on the balance of probabilities (but bearing in mind the seriousness of the question) that the 2008 Will is the last will of Bill as a free and capable testator.

The totality of the medical and other evidence which the Court has accepted from the period 2005 to 2 June 2008 has created a doubt in the Court’s mind about the validity of the 2008 Will. In my view, taken at its highest, the evidence which is available to dispel that doubt is:

Keeping firmly in mind that the question relates to Bill’s’ capacity on 2 June 2008 to make the 2008 Will, when the Court weighs the matters referred to in the preceding paragraph against all the other evidence, it is left with a substantial doubt (rather than merely a residual doubt) which precludes the formation of a belief that the 2008 Will is the will of Bill as a free and capable testator. James has not established that Bill had testamentary capacity on the balance of probabilities (bearing in mind the seriousness of the matter to be proved).

The most significant features of this case which inform this conclusion are:

For essentially the same reasons as those set out above, the Court has reached the same conclusion in relation to the 2006 Will, namely that James has failed to establish on the balance of probabilities (bearing in mind the seriousness of the matter to be proved) that Bill had testamentary capacity at the time he made the 2006 Will. That conclusion has, necessarily, been reached by reference to a more limited body of evidence so, for the avoidance of doubt, I will set out my reasoning again.

In relation to Mr Bricknell’s testimony it is to be noted that his file in relation to the 2006 Will had been destroyed and was not available to him or the Court. Nor was there any suggestion that anything like the Certificate had been obtained in relation to the 2006 Will and there was no evidence of the terms of wills which Bill had made before the 2006 Will (including the one he had made only a few months earlier (see paragraph [47] above)).

I have again reminded myself that it is necessary to return to the fundamental question of whether, on the basis of all the evidence, the Court is satisfied on the balance of probabilities (but bearing in mind the seriousness of the question) that the 2006 Will is the last will of Bill as a free and capable testator.

The totality of the medical and other evidence which the Court has accepted from the period 2005 to 31 October 2006 has created a doubt in the Court’s mind about the validity of the 2006 Will. In my view, taken at its highest, the evidence which is available to dispel that doubt is:

Keeping firmly in mind that the question relates to Bill’s capacity on 31 October 2006 to make the 2006 Will, when the Court weighs the matters referred to in the preceding paragraph against all the other evidence, it is left with a substantial doubt (rather than merely a residual doubt) which precludes the formation of a belief that the 2006 Will is the will of Bill as a free and capable testator. James has not established that Bill had testamentary capacity on the balance of probabilities (bearing in mind the seriousness of the matter to be proved).

It is necessary to be precise about “all the other evidence” referred to in the preceding paragraph. The Court has reached its conclusion by reference to all the evidence which it has accepted relating to the period up to 31 October 2006, including James’ evidence which clearly relates to 2006 in his District Court affidavit sworn on 20 February 2007 (see paragraph [56] above). However, it has been fortified in that conclusion by the further evidence for the period up to and including January 2007 (see paragraphs [51] to [54] above). However, the same conclusion would have been reached without reference to that further evidence. The conclusion has not been informed by any assumption or finding as to how Bill’s capacity in October 2006 might compare to his capacity in June 2008.

The most significant features of this case which inform this conclusion are:

The Court will stand the matter over to enable the parties to consider the next steps that are required in the light of these reasons. In due course the Court will make declarations that Bill lacked capacity in relation to both wills. It will be necessary for the probate granted to James to be revoked and, given the fact that this result means James’ family provision claim will be pressed, an independent administrator will have to be appointed. Directions will be required in relation to the expeditious conduct of the various family provision claims that will be pressed. Given that the hearing included taking all (or virtually all) of the evidence for the entire proceedings, my tentative view is that any argument as to the costs of the determination of Bill’s testamentary capacity should await determination of the balance of the proceedings.