Starr v Miller; Starr v Miller

These are the reasons for judgment following the trial of separate, but closely related, proceedings, listed to be heard consecutively, involving the estate of Nancy Louise Starr (the deceased), who died on 26 May 2018, aged 72 years, leaving property in New South Wales. It is another group of cases involving, principally, adult siblings, all children of the deceased, who were prepared to incur significant amounts, by way of legal costs and disbursements, rather than coming to a resolution of the proceedings (in one case, doing so only at the commencement of the hearing). All attempts at alternative dispute resolution failed and there was no hint of any rapprochement between the remaining siblings during the hearing of the proceedings. The case remained hard fought till its bitter end. It is necessary, now, in this regrettably long judgment, to deal with the issues raised by the parties.

The deceased left a professionally drawn Will dated 16 July 2012 (the 2012 Will). This Court granted Probate in common form of that Will on 15 October 2018, to her daughter, Margo Anne Miller, her accountant, David Patrick Brough, and her solicitor, Bradford Frederick McInnes Stuart, the first, second, and third Defendants, respectively, they being the executors appointed under that Will.

The proceedings concern whether the grant of Probate in common form should be revoked based upon allegations of a lack of testamentary capacity and a lack of knowledge and approval.

In Boyse v Rossborough (1857) 6 HL Cas 2 at 45; (1857) 10 ER 1192 at 1210, Lord Cranworth LC observed:

The substance of that quotation needs to be remembered in these proceedings so far as it relates to the testamentary capacity of the deceased. One issue for the Court is to determine whether darkness had fallen when the deceased came to give instructions for, or then when she came to execute, the 2012 Will.

In arriving at a conclusion, 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:

By Statement of Claim, bearing proceeding number 2020/34748, filed on 3 February 2020, the Plaintiff, Susan Maree Starr, a now adult daughter of the deceased, sought an order for revocation of the grant of Probate of the 2012 Will and an order that Probate in solemn form of a professionally drawn Will, (incorrectly dated therein) 28 May 2006, be granted to her and the first Defendant, Margo Anne Miller, with leave reserved to Belinda Louise Atlee and Emma Jane Buckley, the only two other children of the deceased, to apply for Probate. The four daughters of the deceased were the executors named in the 2006 Will. The Plaintiff also sought an order for her costs.

I shall refer to each of these Wills, although there is a dispute about the validity of the 2012 Will, as “the 2012 Will” and “the 2006 Will” (as correctly dated), respectively, only for convenience and without any prejudgment.

The Plaintiff filed an amended Statement of Claim on 12 March 2020 naming the same Defendants, correcting the date of the 2006 Will, and seeking the same relief.

Without conveying undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the children of the deceased by their first name.

During the course of the hearing, Susan and Margo, sensibly, were able to agree that if Susan was successful in the Probate suit, letters of administration with the 2006 Will annexed, should be granted to an independent solicitor, Kim Rickards. His consent had been obtained to that course: Ex P5. In this way, the potential for further disputes between them, concerning the administration of the deceased’s estate, could be avoided.

The Defendants opposed the revocation of the grant of Probate. They did not dispute the validity of the 2006 Will but stated that it had been revoked by the 2012 Will. There was really no dispute that even though Probate had been granted, the case was one requiring them to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2012 Will.

In her Cross-Claim, filed on 14 February 2020, Margo sought a family provision order out of the estate, or notional estate, of the deceased, only in the event that Probate of the 2012 Will was revoked. Her claim for a family provision order was brought under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009. Margo also sought an order for costs of the proceedings.

I shall refer to the proceedings for revocation of the grant of Probate as the Probate proceedings.

The two other proceedings that were to be heard were proceedings in which a family provision order was sought out of the estate and notional estate of the deceased. The proceeding filed first in time, was a proceeding bearing number 2019/162556, in which the Plaintiffs were Belinda and Emma. At the commencement of the hearing, the Court was informed that the proceeding had been resolved between the parties and that Short Minutes of Order and a Deed between the parties to reflect the agreement that had been reached were in the course of preparation.

The Court noted that Susan would need to agree with the form of orders and the way in which the matter had been resolved if the settlement involved any payment, out of the deceased’s estate, to Belinda and/or Emma, or otherwise. I shall refer to the events that occurred later in these reasons. (Subsequently, Susan did not oppose the orders that were made in these proceedings.)

The other proceeding, which bears the proceeding number 2019/162571, is one in which Susan is the Plaintiff. She filed this proceeding because of the possibility that Probate of the 2012 Will would not be revoked, or would be revoked, with a grant of Probate in solemn form of that Will. However, senior counsel for Susan confirmed that in the event the Court found the 2006 Will to be the last valid Will of the deceased, the proceeding for a family provision order could be dismissed.

The parties also agreed that if an order for provision out of the deceased’s estate were made in Susan’s favour, because her Probate proceeding was dismissed, that in order to save further costs and expenses, the order should be made “in lieu of the provision made for her” in the 2012 Will.

I shall refer to Susan’s proceedings numbered 2019/162571, and the claim made by Margo, by way of Cross-Claim filed in the Probate proceedings, as the family provision proceedings.

During the course of submissions, the Court raised with senior counsel, the question whether, if the Probate proceeding was dismissed, it was necessary to revoke the grant in common form of Probate of the 2012 Will and to make a grant of Probate in solemn form of the 2012 Will. It was not necessary, at that stage, to express a concluded view about this aspect as much would depend upon the order for provision, if any, to be made for Susan, and the method by which the order could be satisfied.

Although I shall leave that question to be determined after the parties have had an opportunity to consider these reasons for judgment, I should note that the practice of the Court, where probate in solemn form is granted after probate in common form has been granted, is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form, and the newly made grant in solemn form, are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred.

I note that the original grant of Probate had been delivered to the Court and was marked, in the Probate proceedings, as Ex D3. It remains with the Court file.

If a family provision order is made in favour of Susan, it is important to remind the legal representatives that a certified copy of any order made under the Act must be copied onto the grant of probate as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will: s 72(1)(a) of the Act. It is only if the order is actually endorsed on the grant of probate can the grant correctly represent what are the dispositive provisions of the Will of which probate has been granted: Gould v Gould [2005] NSWSC 914, at [6] (Campbell J). Also see Paragraph 23(a) of Practice Note SC Eq 7.

Considering the above, the following alternatives exist: if the 2012 Will is confirmed to be the last valid Will of the deceased, then Susan’s claim for a family provision order will need to be determined and Margo’s Cross-Claim would be dismissed; if Probate in solemn form of the 2006 Will is granted, Susan’s proceedings for a family provision order will be dismissed and Margo’s claim for a family provision order will need to be determined.

All proceedings were listed for concurrent hearing, for 9 days, commencing on 23 February 2021. (As it turned out, because of the settlement of Belinda’s and Emma’s proceedings, the hearing lasted 6 days). At the commencement of the hearing, without objection, the following order was made in the proceedings:

The order for a concurrent hearing had been anticipated when the matters were set down for hearing, and was made without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 2.1, which provides that the Court “at any time, and from time to time, [may] give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the court and it appears to the court that “it is desirable to make an order under this rule, the court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…”.

There were no difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. Factual and credit issues that overlapped that were relevant to each proceeding, were determined simultaneously, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the similar issues; the possibility of several appeals, with potential delays if the proceedings were not heard and determined at the same time, were avoided; the deceased’s estate has also been put to less expense in having only one set of hearings, rather than two or three; the just, cheap and quick hearing of all of the matters in dispute were facilitated; all parties, as affected persons, participated in the Probate proceedings; and the most efficient, and expedient, use of resources, for the parties, and, by implication, the Court, was achieved.

For those reasons, it was not only “desirable”, but also “convenient”, to make an order that the proceedings be heard consecutively, with the evidence in one being evidence in the other. (In the events that happened, neither Susan, nor Margo, sought to read any of the evidence filed in the proceedings by Belinda and Emma.)

The parties had discussed the order of witnesses before the hearing commenced. This necessitated some flexibility in the timing of the reading of the pleadings and the affidavits and in dealing with the objections to the affidavit evidence. However, this, too, was able to be achieved in an orderly manner and with the co-operation of the legal representatives.

The legal representatives of the parties are to be commended for the co-operative approach taken during the hearing and also for the way in which the hearing was conducted by them. I am also grateful to all counsel for the detailed submissions provided before, and during, the hearing, which has assisted the Court in the preparation of these reasons.

Finally, I should mention that the Court followed the Supreme Court’s Coronavirus (COVID-19) announcement of 29 January 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to, were able to do so). Naturally, the physical distancing rules remained in operation.

The main issues that needed to be determined were, and my conclusions, are:

There are affidavits of each attesting witness of the 2006 Will. It was duly executed.

There are affidavits of each attesting witness of the 2012 Will. It was duly executed.

Whilst Susan was likely to have been aware of at least some of the facts and circumstances upon which she sought to base her assertions of the deceased’s lack of testamentary capacity, and also lack of knowledge and approval, she had made no attempt to oppose the making of the common form grant of Probate when it was sought by the Defendants. Then, despite the making of the common form grant, she made no attempt to have it revoked, but on the contrary, commenced the family provision proceedings in May 2019, and prosecuted them upon the basis that, because of the terms of the 2012 Will, Probate of which had been granted to the Defendants to those proceedings, she had been left without adequate provision for her maintenance, education or advancement in life.

The matter had been in the Family Provision List (as the Succession List was then called) on 28 June 2019, 30 August 2019 (having, in the meantime, been to a private mediation), and on 27 September 2019. It was not until a directions hearing, held on 19 December 2019, that the Court was first informed, by junior counsel, that Susan intended to commence proceedings challenging the validity of the 2012 Will which had been the subject of a grant of probate made by this Court on 15 October 2018.

In Paragraph 5 of her Statement of Claim filed on 3 February 2020, Susan attributed her failure to commence the Probate proceedings to being “mistaken as to the date on which the Deceased was diagnosed with Alzheimer’s disease and was not aware of many of the facts pleaded below”. She then set out various allegations concerning the deceased’s medical condition.

Nothing more needs to be said about this matter as it was not raised as a matter going to the exercise of the Court’s discretion in relation to the revocation of the grant of Probate.

The only persons, remaining in the proceedings, who would be adversely affected whatever orders are to be made in the Probate proceedings, or in the family provision proceedings, are Susan and Margo. Belinda and Emma, as will be read, no longer have any interest in the determination of what is the last valid Will of the deceased, or in the order for provision to be made for Susan.

Susan commenced her family provision proceedings by Summons filed on 24 May 2019, that is within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

Margo filed her Cross-Claim, in the Probate proceedings, on 14 February 2020, that is outside the time prescribed by the Act. At the commencement of the hearing, senior counsel for Susan confirmed that if it became necessary to determine Margo’s claim for a family provision order, and if an order were to be made for additional provision, Susan consented to the application being made out of time, as permitted by s 58(2) of the Act: Tcpt, 23 February 2021, p 6(19-41).

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of Susan, Belinda, Emma, and Margo, is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as her, or his, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

However, under s 60(2) of the Act, relevantly in the family provision proceedings, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant, in the case of a child of the deceased, to the question whether the applicant is an eligible person.

The only eligible persons are the four children of the deceased. The husband of the deceased, the father of the four children, Richard William Starr, predeceased the deceased, having died in 2005. Only Susan and Margo now have a claim for a family provision order to be determined. In view of the orders that have been made in Belinda’s and Emma’s proceedings, the position of each of them, as an eligible person, is no longer relevant.

As the deceased dealt with all of her estate in her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

A family provision order may be made in relation to property that is not part of the deceased’s estate but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There is no property that is able, or is sought, to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by each of Susan, and Margo, respectively, neither sought an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased’s estate that has been distributed, other than amounts that have been paid on account of the costs of the Defendants, as executors to whom Probate was granted. Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. In the family provision proceedings, it will be necessary to refer to Margo’s interest, and if necessary, Susan’s interest, respectively, as a beneficiary, later in these reasons, when the claim by the other for a family provision order is determined.

On the second day of the hearing, at the request of the parties, I made the following orders and notations in the proceedings brought by Belinda and Emma:

On the fourth day of the hearing, senior counsel for Margo, filed in Court, without any opposition, the affidavit of Heather May Baker, sworn 1 March 2021. Ms Baker is an employed Australian legal practitioner at Campbell Paton Taylor, Margo’s solicitors. To that affidavit, was annexed a copy of a Deed of Settlement and Assignment made on 23 February 2021 between Belinda, Emma and the Defendants.

Relevantly, by the Deed of Settlement and Assignment, Margo agreed that on or before 28 May 2021, she would pay $350,000 to Belinda, and pay to Emma, $500,000, as directed by the solicitor acting for them, and agreed to deliver to them certain personal items of the deceased and of Richard. For her part, each of Belinda and Emma assigned her interest and entitlements in the deceased’s estate, including any benefits, or rights, to which she might be entitled under the 2006 Will and under the 2012 Will to Margo. They also agreed to renounce Probate of the 2006 Will. (There were other terms, but they are not relevant to the Probate proceedings or the family provision proceedings.)

In her affidavit, Ms Baker stated that the total amount to be paid to Belinda and Emma had been raised by a contribution of $250,000 from the funds of Margo and her husband, Scott; a sum of $300,000, which had been borrowed from Margo’s paternal aunt, Margaret Starr; and a sum of $300,000, which had been borrowed by Margo and Scott from the CBA.

Ms Baker also stated:

During her oral evidence, Margo confirmed the contents of Ms Baker’s affidavit. In answer to a question from the Bench, Margo estimated that the amount that would comprise the proceeds of sale of the stock, referred to in Ms Baker’s affidavit, would be about $100,000: Tcpt, 2 March 2021, p 300(16-41).

Margo also confirmed that it was not possible for her and Scott to borrow any more money, and that, in order to meet any provision to be made for Susan, Scott's real estate at Manildra may be able to be sold (although she had not discussed this with Scott), or that a property known as “Hylands”, to which reference will be made, would need to be sold. Naturally, whether that should occur will depend upon the result of both proceedings.

In submissions, senior counsel for Margo suggested that, if necessary, the deceased’s one quarter interest in a property known as “Koranui”, to which reference shall be made, could be transmitted, in specie, to Susan, in order to satisfy any order for provision made for Susan. For her part, Susan was unlikely to want to take the deceased’s interest in that property, in specie, as part of any provision to be made for her.

Under s 65(1) of the Act, the Court, amongst other things, must specify “…(b) the amount and nature of the provision, and (c) the manner in which the provision is to be provided and the part or parts of the estate out of which it is to be provided”, and under s 65(2) may require the provision to be made “… (c) by application of specified existing or future property, (d) by way of an absolute interest, or a limited interest only, in property”.

No reason was advanced why, if provision were made for her, a devise of the deceased’s interest, as a co-owner with a third party, in that property, should be made for Susan, as provision, or part of the provision, other than it would avoid Margo having to find a lump sum to satisfy an order for provision.

I shall allow the parties an opportunity to consider how any provision to be made should be satisfied, and if possible, reach agreement as to the period within which any order for provision should be satisfied. As the Court may have to deal with the issue of costs, any dispute about the time within which the orders of the Court should be satisfied, and any other disputed matters, can also be determined. Needless to say, the parties should attempt to reach agreement on any outstanding issues in order to avoid further costs being incurred and the administration of the deceased’s estate being further delayed.

It will be necessary to examine the evidence bearing upon instructions for, and the execution of, the 2012 Will, with some care. It is important to remember that 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.

Unless otherwise stated, each of the witnesses to whom I shall refer was cross-examined. I shall refer, first, to Susan’s witnesses.

Susan gave evidence in support of her Probate proceedings and the family provision proceedings. Her partner of many years, Andrew Killingsworth, did not give evidence, although he was present in Court during the proceedings. I shall return to Susan’s evidence later in these reasons.

Bruce Lyons, a wool-classer, who had known the deceased for about 65 years, and who was an employee of the deceased from 2007 to 2010, made an affidavit on 24 June 2020. In his affidavit, he did not give any evidence of observing any cognitive deficits in the deceased. Rather, he described her, in the period 2007 to 2010, as “a fit, reasonably lean, strong looking woman” who he “observed [was] working like a slave on the farm doing very hard manual work”. He was not cross-examined.

Dr Mesut Cetiner, a Consultant Psychogeriatrician, swore two affidavits, one on 19 June 2020 and the other on 19 February 2021, shortly before the commencement of the hearing. He is employed as a Senior Visiting Medical Officer, in the Older Persons Mental Health Service, NSW Health, Western NSW Local Health District operating out of Orange Base Hospital. He is also a Senior Staff Specialist in Psychiatry of the Aged, at St George Hospital in Sydney. I shall return to his evidence later in these reasons.

Mr Timothy Young, an Australian legal practitioner, and the principal of Young & Muggleton, the solicitors for Susan, gave evidence about the costs of the Probate proceedings and the family provision proceedings. He was not cross-examined.

I turn next to Margo’s witnesses.

Margo gave evidence in both the Probate proceedings and in respect of her family provision claim. Her husband, Scott Miller, did not give evidence, although he was present in Court during the proceedings.

Emily Reynolds, who had been employed as a receptionist, by Yates Baker McLean, accountants and business advisers, and who was one of the attesting witnesses of the deceased’s signature on the 2012 Will, swore an affidavit on 21 February 2020, which was in the form of what might be described as the usual affidavit of attesting witness. She was not cross-examined.

Philip Francis Hodges, a partner at Yates Baker McLean, accountants and business advisers, was the other attesting witness of the deceased’s signature on the 2012 Will. He gave evidence by affidavit and he was cross-examined remotely. On 25 February 2021, the Court with the consent of the parties, directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), that he, give evidence by telephone link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

Mr Brough, the second Defendant, who had a number of conversations with the deceased, relevantly, in 2012, gave evidence. It is clear that the deceased trusted him. He made full, and detailed, written attendance notes, which set out events with, it would seem, precision and clarity.

Mr Stuart, the third Defendant, and the Australian legal practitioner who took instructions for the 2006 Will and the 2012 Will and who drafted each Will, gave evidence. By 2012, he had been in practice for 36 years and, over that time, had drafted a large number of Wills and had held conferences with many clients to discuss testamentary intentions, or in order to provide advice about wills and estate matters generally. He stated that he “was aware of the test for testamentary capacity in Banks v Goodfellow and… was experienced in assessing whether the persons I was asked to prepare Wills for, or to advise, appeared to have testamentary capacity”.

It could not be, and was not, disputed that, by 2012, he was an experienced solicitor in wills and estates. The deceased had been his longstanding client and of his firm and she was known to him. I am satisfied that the deceased trusted him. He did not have any written diary notes because he had suffered a cardiac arrest in 2008, after which he found writing difficult. On some occasions, he had confirmed his instructions, subsequently, in correspondence addressed to the deceased.

Mr Stuart swore an affidavit on 17 March 2020 which was in the form of the usual affidavit of an attesting witness. He was one of the attesting witnesses of the deceased’s signature on the 2006 Will. His affidavit was read in Susan’s case and he was not cross-examined on that affidavit.

(Since 2013, it is only if the court has doubts about the due execution of the will, even where the attestation clause is sufficient, that an affidavit as to due execution will be required, and generally, if a will contains a sufficient attestation clause, it is not necessary to file a separate affidavit of attesting witness. However, as Susan sought a grant of Probate in solemn form of the 2006 Will, she was required to call at least one of the attesting witnesses to prove due execution: In re Munn [1943] SASR 304; Oakes v Uzzell [1932] P 19; Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].)

Jacquelyn-Anne Christopherson, a registered nurse, who saw the deceased on one, or two, occasions between November 2011 and October 2012 gave evidence. Ms Christopherson observed the deceased to be anxious when she came to the surgery and to the medical practice. As a nurse, one of her tasks was to talk with the deceased prior to any procedure, to help reduce her anxiety. Ms Christopherson gave evidence that she had spoken with the deceased about her farm, her family and a family friend, Ron Copson, and that she had come to know the deceased reasonably well during these conversations. She was cross-examined remotely.

Richard Ivey, an Agricultural Consultant and forensic accountant, gave evidence in a report which “investigates the impact on the viability of the farming operations run by RW & NL Starr Trust… if land available for the Trust were to be reduced from “Arakoon” and “Hylands” to “Arakoon” alone. He, also, was cross-examined remotely.

In relation to the cross-examination of Ms Christopherson and Mr Ivey, with the consent of the parties, on 2 March 2021, the Court directed, pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act, that she and he, respectively, give evidence by audio-visual link from a place within Australia, other than Court Room No 2 Hospital Road, Sydney.

Ms Baker swore several costs affidavits, and also the affidavit to which I have referred relating to the settlement of Belinda’s and Emma’s family provision proceedings. She was not cross-examined.

There was no objection taken to statements made by the deceased about which evidence was given. These were admissible, principally to show the knowledge, intention, and mental state of the deceased at the time of the making of the 2012 Will. A number of the statements also described the deceased’s view of one, or other, of her children. Those statements were also admissible as original evidence and as evidence of the deceased’s state of mind.

In making factual findings, I have borne in mind that the principal events took place over 8 years ago and that memories are bound to have become weaker, or less reliable, with the passage of time. In addition, I have allowed for the strong feelings that this type of dispute, undoubtedly, will have engendered, within the deceased’s family, and which may have influenced the recollection of events by Susan and Margo.

In addition to the affidavit and oral evidence, there was a reasonably large amount of documentary material, particularly going to the deceased’s medical condition.

There was also a certain amount of other contemporaneous documentary material produced from Mr Brough and from Mr Stuart that has been relied upon going to events leading to the execution of the 2012 Will. There was no dispute as to the authenticity of any of the documents and indeed, most were tendered without objection.

Margo gave evidence that the deceased “participated in all activities on the farm and… loved the rural way of life” and that “because of her lifestyle [the deceased] was still in good physical shape at the time of her death”.

Susan gave evidence that, “rather than loving her life, [the deceased] was depressed for many years and probably from the 1980s when she became the victim of domestic violence at [her husband’s] hands”.

Bearing in mind the evidence as a whole, to some of which I shall refer later, I tend to the view that Margo’s view of the deceased as stated above is a more accurate one.

I shall deal with the 2012 Will first.

The original grant of Probate dated 15 October 2018 was tendered as Ex D3. Relevantly, the deceased:

It was not suggested that the 2012 Will was wholly irrational, although, as will be read, senior counsel pointed to the fact that Susan was provided for in the same way as were Belinda and Emma, which seemed unusual because her relationship with the deceased was very different from each of them: Tcpt, 3 March 2021, p 344(12-38).

The 2006 Will was tendered and marked Ex P1. The attesting witnesses to the 2006 Will were Mr Stuart and Ms Therese Sprenger.

Relevantly, the deceased in the 2006 Will:

The earliest Will of the deceased, in time, which was the subject of evidence, was one made by her on 7 December 1973. By that Will, the deceased left the whole of her estate to her husband, Richard, but, in the event that he did not survive her, provided that her estate was to be divided equally amongst her children. (As will be read, only Belinda and Margo had been born when this Will was executed.)

In the circumstances of the Probate proceedings, since there is no dispute about the validity of the 2006 Will, if the 2012 Will is not a valid Will, the 1973 is not really relevant in the proceedings other than to demonstrate that the deceased’s long held testamentary intention was to provide for her husband if he survived her, and if he did not, to divide her estate between her surviving children.

On 2 December 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

At the hearing, a final version of the document, was tendered and marked Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The deceased left an estate with an agreed value, as at the date of death, of $7,824,653.

The parties agreed that the gross value of the deceased’s estate, at the date of the hearing, was $8,674,379: Ex. JS 1. The estate was said to comprise:

The Defendants contended that executors’ commission and capital gains tax, which would be incurred in selling the real estate, would be at least $1,139,831: Tcpt, 3 March 2021, p 327(18-30). I shall use this amount to reach a net estimated value of the estate (excluding the costs of the proceedings), which is $7,534,548. (Of course, it may not be necessary to incur some of the liabilities, immediately, particularly if “Arakoon” is not sold.)

In relation to the probate proceedings, Susan’s costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.

The balance of the Defendants’ costs, calculated on the indemnity basis, of the probate proceedings, were estimated to be $79,400.

There is no suggestion that either the Civil Procedure Act 2005 (NSW) or the UCPR do not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about them at this time.

The balance of the Defendants’ costs, calculated on the indemnity basis, of Belinda’s and Emma’s family provision proceedings were estimated to be $73,000.

In relation to the family provision proceedings, Susan’s costs, calculated on the ordinary basis, were estimated to be $97,500. Her costs, calculated on the indemnity basis, were estimated to be $130,000.

The balance of the Defendants’ costs, calculated on the indemnity basis, of the family provision proceedings, were estimated to be $60,500.

In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330 [54]; [2016] NSWCA 222 at [54]:

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the probate proceedings should be borne. They submitted that that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.

The total of the various costs, including in the case of the Defendants, the balance of their costs, totals $407,900. (The amount of costs referred to as agreed during the hearing was $334,900: Tcpt, 3 March 2021, p 327(06-16). However, that did not include the estimated amount of $73,000, being the balance of the Defendants’ costs, calculated on the indemnity basis, of Belinda’s and Emma’s family provision proceedings.)

(In this regard, Ex JS 1 confirmed that $108,039 of the Defendants’ costs had been paid out of the estate of the deceased.) It can be seen, therefore that in excess of $515,000 has been incurred in costs of the various proceedings.

Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of $7.1 million.

Without having undertaken any exercise designed to assess the reasonableness, or otherwise, of the costs and disbursements, I draw to the attention of the practitioners, as officers of the Court, that in Woolf v Snipe (1933) 48 CLR 677 at 678-679; [1933] HCA 5, Dixon J wrote:

As with all probate and family provision disputes, a proper understanding of the events is critical. It is sufficient, for present purposes, to set out what follows as the findings of the Court.

The deceased was born in November 1945 and was 66 years old when she executed the 2012 Will.

“Arakoon” was purchased by Richard’s father on his return from World War I and was acquired by Richard prior to his marriage to the deceased.

The deceased married Richard in 1968 and moved onto “Arakoon”. It was both the family home, and the source of the family income, sustaining mixed grazing (sheep and cattle) farming operations. The deceased remained living there until about May 2015.

In the 1950s, after Richard took over “Arakoon”, Richard’s father purchased “Hylands” for his wife and three daughters. Richard purchased “Hylands” from his sisters in 1980.

“Arakoon” and “Hylands” are farming properties, located about 10km apart, in Molong (about 13 km north of Manildra and 50 km from Orange).

As stated, there were four children of the deceased and Richard, namely:

The four children of the deceased and Richard attended a private boarding school (Kinross Wolari School) in Orange. They assisted with the farming operations during their primary and high school years. They worked in the shearing sheds, helped with the marking of lambs, checked on livestock, drafted sheep and cattle, loaded stock trucks and fed livestock during droughts.

The RW & NL Starr Trust was established by a Deed of Settlement dated 19 January 1982. All plant, equipment, and stock, for the farming properties were owned by the Trust. Arakoon Pty Ltd was the corporate trustee of the Trust.

Each of Margo, and Susan, moved to Sydney after she finished University. (There was no evidence read in these proceedings about Belinda’s and Emma’s movements (other than evidence going to each of their estrangements from the deceased, as will be read).)

Susan returned to Orange for 12 months in 2002, living with her parents and working as a speech pathologist at Orange Community Health Centre. She then spent a year abroad in Dublin, Ireland, working in a hospital. She returned to Sydney to work at Bankstown Hospital and spent six months living with Margo. She then moved in with some friends.

Susan met Andrew in about 2000. They moved in to live together in 2006 and have lived together, in a de facto relationship, since then.

In 1990, Margo commenced work with Westpac in Sydney. During this time, she maintained a close relationship with her parents and would visit them once a month. Margo worked for Westpac Banking Corporation for 10 years, but in 2001, commenced working for Maersk Line, an international shipping company, in Sydney. She held a responsible middle-level executive position, earning about $72,000 per annum. She spoke to her parents, almost daily, by telephone and visited one weekend a month. She would also take leave every September to assist at shearing time. (These matters are relevant to a proposition advanced by Susan concerning the capacity of the deceased.)

In March 2002, the deceased and Richard gave Emma and Craig a 10-acre block of land that had been subdivided from “Hylands” (“Emma’s Block”). They finished building their home on that land in November 2003.

In about 2002, Emma and her husband found water on Emma's Block. They paid for pipework from their land to Richard’s and the deceased’s land, which enabled the deceased and Richard to receive water to fill a black tank for stock, via a bore pump. As will be read, certain events occurred relating to the bore pump that caused a serious disagreement between Emma and her husband, on the one hand, and the deceased, on the other (to which I shall return).

Richard died, after a very short illness, in April 2005, leaving his entire estate to the deceased. The Inventory of Property of his estate was disclosed as having an estimated value of $1,918,224. There was also joint property that he owned with the deceased ($307,900).

Susan, who was, and had been for some time, living in Sydney, returned to her job as a speech therapist, in Sydney, shortly after Richard’s funeral.

Whilst Emma lived in the area, following Richard’s death, she was unable to assist the deceased, as she was busy with her own family and her work.

Belinda did not assist the deceased with household tasks and was estranged from her from approximately 2013. The estrangement arose because Belinda stopped visiting the deceased and the deceased did not like the way Belinda spoke to her: Tcpt, 2 March 2021, p 275(18-30).

Despite some of her daughters, particularly Belinda, urging her to leave “Arakoon”, the deceased decided, firstly, that she wanted to continue to live there and, secondly, that she wished to continue to work it as a farm. The farm had always been operated as a two-person venture, and she knew that she would have to employ an additional person if she were to be able to operate it successfully. At the time of Richard’s death, none of the farm work had been done with external help. All work had been completed by the deceased and Richard, with the occasional assistance from Margo and Emma.

In about July 2005, Margo moved from Sydney to “Arakoon”, to live with the deceased. Initially, it was not intended to be a permanent return, but she stayed living on “Arakoon” on a full-time basis, until February 2011 (when she moved into Scott’s home in Manildra). Her income dropped to $20,000 per annum, until 2012, and then increased to $40,000.

From July 2013, Scott commenced paid employment on “Arakoon”.

Margo married Scott in September 2013.

Mr Copson, who had been a close friend of the deceased, died in June 2014. Margo, Susan, Belinda and Emma, each received a pecuniary legacy of $216,000 from his estate.

In May 2015, Margo arranged for the deceased to have a two week respite at an aged care facility in Eugowra. Shortly afterwards, a bed became available at UPA Prunus Lodge, Molong, a residential aged-care facility. On 22 May 2015, the deceased moved into that facility.

In July 2015, Margo and Scott moved back to “Arakoon” and have continued to live and work there.

At the time of the deceased’s death, it appears that the deceased was estranged from both Belinda and Emma.

The following sections address some additional relevant legal principles, the evidence of the witnesses, and the views to which I have come which inform my findings of fact. Before turning to those facts, it is necessary to refer to some general principles which should be remembered.

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 Lynch v Cadwallader & Anor [2021] EWHC 328 (Ch), 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 misstate 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.

I also refer to what was written in Sangha v Baxter [2009] NSWCA 78, by Basten JA (with whom Handley AJA agreed), at [155]-[156]:

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

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:

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]:

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.

In late March 2012, Mr Stuart met with the deceased and Margo to discuss a dispute that had arisen, between the deceased, on the one hand, and Emma and her husband, Craig, on the other, regarding a bore pump that supplied water to part of the deceased’s property. It appears that the deceased had discovered that Emma had cut off the water supply to certain troughs on part of the 200 acres of “Hylands”, which adjoined Emma's property. Apparently, this had been done several weeks earlier after a disagreement as to who should pay for the electricity to the pump which pumped water from the bore along the pipe.

Susan confirmed in her affidavit made on 24 June 2020, that the deceased “repeatedly told me that my sister Emma had put the survival of 200 sheep at risk by cutting off the water to them”.

In cross-examination, Mr Stuart stated that he believed Margo had spoken to him about this dispute from time to time: Tcpt, 25 February 2021, p 151(08-09).

On 2 April 2012, Mr Stuart sent the deceased a copy of a draft letter that he wished to send to Emma and Craig on her behalf.

The letter included the following:

Subsequently, Mr Stuart received a telephone call from the deceased instructing him to send the letter, which he did on 10 April 2012.

(This evidence, which was not the subject of any challenge, demonstrates that the deceased appears to have read, and understood, the contents of the letter and that she had also understood that before the letter would be sent, she was required to provide instructions to Mr Stuart to send it.)

On 13 April 2012, Mr Stuart had a telephone conversation with Craig. Mr Stuart’s note of the conversation includes the following:

On 17 April 2012, Mr Stuart wrote a letter to the deceased, which included:

Mr Stuart stated that he had been unable to find a copy of the letter dated 16 April 2012, referred to above. However, Margo produced a copy in evidence: Affidavit, Margo Anne Miller, 1 December 2020 at Annexure C. The letter included a timeline of events surrounding the dispute and included the following (with minor spelling and grammar corrections):

Mr Stuart met with the deceased on 19 April 2012. She instructed him to reject Emma’s and Craig’s proposal, and, on her instructions, Mr Stuart sent a letter dated 23 April 2012 to Emma and Craig which included:

Shortly thereafter, Mr Stuart received a telephone call from Craig. He wrote a letter to the deceased on 30 April 2012, which included:

On 7 May 2012, Mr Stuart met with the deceased again and she instructed him that she would not pay any money to Emma and Craig.

On 8 May, Mr Stuart sent a letter to the deceased, which included:

The draft letter to Emma and Craig, referred to above, included the following:

It is not entirely clear whether the draft letter was sent, but the dispute does not appear to have proceeded further.

In cross-examination, Mr Stuart accepted that the deceased was “simply uncompromising on this topic [of the dispute]” and rejected his advice to compromise or resolve the matter by some financial recompense without giving any reason: Tcpt, 25 February 2021, p 152(46)-153(19). Rather than being a matter which assists Susan, in my view, it demonstrates the deceased’s uncompromising approach and depicts the strength of her conviction concerning the events that had occurred and the conduct of Emma and Craig.

Importantly, it was not suggested that the deceased had not understood the matters in dispute, or that she had not understood the advice given to her by Mr Stuart. It seems that Mr Stuart was content to follow the specific instructions given to him by the deceased. It was not put to him that he should not have done so because the deceased did not have the capacity to provide instructions, or that the instructions that she had provided demonstrated a lack of capacity to understand the consequences of those instructions.

In February 2012, Mr Brough received a telephone call from the deceased asking if he would come with her to “support [her] with drafting a new Will”. He agreed to do so. In cross-examination, Mr Brough stated that the deceased told him, during the telephone call, that she had been diagnosed with early-stage dementia: Tcpt, 25 February 2021, p 187(26-34).

It was not put to Mr Brough that the conversation had not occurred in the terms that he had repeated. In my view, the telephone call with Mr Brough demonstrates that the deceased, at the time, understood the significance of what she was about to do, the importance, to her, of being able to achieve it, and the insight that she had in seeking assistance from a trusted adviser, in that regard.

Mr Brough met with the deceased and Margo at about 10:00 a.m. on 6 February 2012. Margo handed Mr Brough a piece of paper on which she had written out a list of the deceased’s assets and some questions that the deceased wished to ask. Mr Brough recalls that both the deceased and Margo discussed the assets referred to with him: Tcpt, 25 February 2021, p 185(23-25).

In cross-examination, Margo confirmed that, at the request of the deceased, she had prepared this list of the deceased’s assets from her own analysis of the deceased’s documents: Tcpt, 25 February 2021, p 209(25-34). When asked if the reason she had not consulted the deceased about the list was because she knew the deceased could not remember the details of her assets, Margo stated (at Tcpt, 25 February 2021, p 210(49)-211(10)):

Mr Brough wrote notes whilst speaking with the deceased and Margo, which included the following statements:

Mr Brough also recalled the following conversation:

Mr Brough also recalled the deceased making the following statements during the meeting:

(The reference to Emma being “happy to let it go” appears to be a typographical error and should refer to Margo “being happy to let it go”.)

These statements show a clear exposition of the deceased’s testamentary intentions. It also demonstrates some knowledge of the property of which she was disposing in her Will. In the circumstances, as they then existed, they also appear to demonstrate a rational consideration of the competing claims on her bounty.

During the meeting, Mr Brough told the deceased that a Will was not beyond challenge and he raised the possibility of a transfer of the farm to Margo whilst the deceased was alive.

Later the same day, Mr Brough made a more detailed note of this meeting, which included the following:

Immediately after the conference, Mr Brough and the deceased attended a conference with Mr Stuart, which conference Mr Bough arranged. On the way, Mr Brough repeated:

Mr Brough also made notes of the conference with the deceased and Mr Stuart, which included the following:

During the meeting, Mr Stuart read through the deceased’s 2006 Will and asked “Who do you want to have as your executors? At the moment, you have all four daughters.” The deceased replied: “I want to change that. Will you be one of my executors? I’ve asked Margo and David to be executors too”. Mr Stuart agreed to do so.

Mr Brough notes that Mr Stuart then showed the deceased her existing Enduring Power of Attorney and Appointment of Enduring Guardian. He said “You have appointed Margo. Do you want to change this?”. The deceased said “No”.

Although Mr Stuart accepted that he had reminded the deceased of what a Power of Attorney and Guardianship was, it was not Mr Brough’s recollection that the deceased said something which indicated that she needed reminding, but rather “it was Mr Stuart being thorough in his advice”: Tcpt, 25 February 2021, p 185(07-10).

Mr Brough recalled that during the conference, the deceased repeated:

Mr Stuart also recalled the deceased saying:

Mr Brough told Mr Stuart that he had raised the possibility of a transfer of the farms to Margo during the deceased’s lifetime and that Mr Stuart had counselled her against this, saying:

Mr Brough was cross-examined. I found his answers to be precise and his evidence to the point. It was not suggested that he had any axe to grind. I thought he brought a professional, independent, eye to the events that had occurred. I accept what he has written and said without reservation.

Mr Stuart was cross-examined extensively about his knowledge of the deceased’s capacity at the time of the conference. I found some of his evidence to be inconsistent, but this, it seemed to me, was caused by the passage of time that had passed since the events that occurred. The contemporaneous records that he produced supported the broad thrust of his evidence.

Mr Stuart confirmed that it was Mr Brough who had telephoned to organise the conference with the deceased and that Mr Brough had expressed a concern that the deceased “was in the early stages of dementia”: Tcpt, 25 February 2021, p 135(11-25).

He stated that he had discussed with her, “her ability to make a will, what a will was… that she understood the will and what her… assets were”: Tcpt, 25 February 2021, p 135(42-49). However, he could not remember anything about the conference “in great detail”: Tcpt, 25 February 2021, p 136(13-15).

In addition, Mr Stuart accepted that it was, in fact, Mr Brough who told him what the deceased’s assets were and their approximate value: Tcpt, 25 February 2021, p 137(47-49) & p 138(16-18). Despite this, he maintained that “[the deceased] had a reasonable understanding of the assets”: Tcpt, 25 February 2021, p 147(20-22).

According to Mr Stuart, from his discussions with the deceased, he was satisfied that she understood what a Will was; that she had a reasonable understanding of the assets she would be disposing of by her Will; that she knew who would have a claim on her testamentary bounty; and that she was able to weigh up the relative ‘entitlements’ of each such person.

Mr Stuart recalled that Mr Brough, during the meeting, asked whether the deceased could transfer the land to Margo during her lifetime by way of an intergenerational farm transfer. Mr Stuart recalls that some time was spent discussing the benefits and costs of doing so. Mr Stuart considered that this discussion confirmed the deceased’s desire to ensure Margo received the farm.

Mr Stuart accepted that he did not know whether the deceased intended to make an inter vivos transfer to Margo, and that it was merely “a suggestion that [he] made”: Tcpt, 25 February 2021, p 146(22-27). He understood the deceased to be uncertain about the matter: Tcpt, 25 February 2021, p 147(03-15).

After the conference with Mr Stuart, Mr Brough made a note in the following terms:

Mr Brough was not challenged on the contents of the note. Nor was it suggested to him that what had been written about the deceased’s “role” was inconsistent with what had occurred previously in her life.

Mr Stuart did not make a contemporaneous note of discussions during this meeting. He stated that his usual practise was to dictate a letter to the client shortly after meeting, to serve as a record of the instructions taken, and the advice given, as well as to provide a report to the client.

Mr Brough wrote an email to Mr Stuart on 6 February 2012 concerning the tax implications affecting the relative values of the farm and the off-farm assets. The email included the statement that “Nancy indicated she was not aiming for equality amongst the daughters and specifically recognised the contribution by Margo since Dick died”.

On 21 February 2012, Mr Stuart dictated, and subsequently sent, a letter to the deceased. The contents included a summary of the deceased’s “Present Position” and went on (with editorial corrections):

This document, which is almost contemporaneous with the giving of instructions by the deceased, is the best guide to the event that had occurred and what had been discussed. The letter disclosed that the discussions had included the size of the deceased’s estate, the changes to the identity of the executors of the Will, the changes to the distribution of the deceased’s estate and the reasons for the distribution, and as an alternative scenario, an inter vivos transfer of the real property to Margo.

In cross-examination, Mr Stuart was asked about the words “we presume this would be the three remaining daughters. In which case each would receive approximately $500,000.00”. Whilst Mr Stuart accepted that the word “presume” indicated there was some doubt in his mind, when he wrote this letter, as to the deceased’s intentions about which of her daughters were to receive the remaining assets, it seems to me that the letter is clear and is consistent with the discussion which the deceased had with Mr Brough: Tcpt, 25 February 2021, p 145(43-46).

Mr Stuart also accepted that the $500,000 figure was incorrect, based on the value of the deceased’s assets: Tcpt, 25 February 2021, p 145(15-16). Mr Stuart accepted that the value of the deceased’s cash assets was $912,000 and stated that he understood her share of “Koranui” to be worth $200,000: Tcpt, 25 February 201, p 145(05-28). On these figures, each of Susan, Belinda and Emma would receive approximately $370,000, rather than $500,000.

(Senior counsel for Susan and Mr Stuart, did not seem to recollect the letter dated 21 February 2012, sent to the deceased, in which Mr Stuart had set out the deceased’s “Present Position”, which had included “a quarter share in… Karanui [sic] … worth $100,000”, and “off farm assets of superannuation of approximately $900,000 and cash of $500,000”. Of course, those estimates, if accurate, established that each of the three residuary beneficiaries would receive about $500,000.)

On 2 April 2012, Mr Stuart sent a letter to Dr Guerin (who was the general medical practitioner who had treated the deceased since about September 2000) which included the following words:

In cross-examination, Mr Stuart accepted, that at the time he wrote this letter, his understanding was the deceased was going to do an intergenerational transfer of the land to Margo, but she had given no reasons for this decision: Tcpt, 25 February 2021, p 150(01-23).

In about April 2012, during the time of the dispute with Emma and Craig, the deceased said to Margo:

Mr Stuart also stated that, when he wrote this letter, he thought there was a potential loss of capacity: Tcpt, 25 February 2021, p 148(37-46). However, the letter makes clear that he had been informed, by Mr Brough, of what the deceased had said, and seeking confirmation from a medical practitioner demonstrates his experience, as well as the care that he was taking to ensure that the deceased had capacity from a medical point of view: see, for example, the publication of The Law Society of NSW, entitled “When a Client’s Capacity is in Doubt – A Practical Guide for Solicitors”, which provides:

Mr Stuart received a letter from Dr Guerin dated 7 May 2012, which simply stated: “It is my understanding that, at this time, Nancy understands the implications of her will.” The letter was admitted over objection, not as proof of the truth, but as relevant evidence of an experienced solicitor making inquiries of a medical practitioner.

I acknowledge that the letter from Dr Guerin is of limited weight in these proceedings: Tcpt, 23 February 2021, p 48(21) and I do not rely upon it, other than as a response, which does not specifically identify any diagnosis that would have raised a red flag about the deceased’s capacity.

Having said that, in light of the evidence of Mr Brough and Mr Stuart, it is difficult to conclude, other than that the deceased, when giving instructions to each of them, had sufficient capacity to understand the effect of entering into a new Will and also of transferring her interest in the land to Margo. As will be read, there is also other evidence which supports this conclusion.

On 8 May 2012, Mr Stuart wrote another letter to the deceased which included:

In cross-examination, Mr Stuart stated that, at this point, it was “probably” still his understanding that it was the deceased’s intention to make an inter vivos transaction to Margo: Tcpt, 25 February 2021, p 146(44)-147(01). However, later, he recalls that the deceased changed her mind. He was unable to recall how the deceased communicated her changed instructions: Tcpt, 25 February 2021, p 153(21-31).

That the deceased, ultimately, did not choose to make an intergenerational transfer suggests that she had the capacity to reflect upon the advice that she had been given about the disadvantages of doing so and, having done so, to reject the concept.

Shortly thereafter, Mr Stuart received a telephone call from the deceased, during which she said:

Bearing in mind the request made in the letter dated 2 April 2012, for the deceased’s “opinion”, the deceased’s response confirmed her earlier instructions.

Mr Stuart stated that he also asked the deceased about the intergenerational farm transfer which they had discussed, but “she was reluctant to transfer the land during her lifetime”. In cross-examination, he accepted that the word “reluctant” indicated that the deceased was uncertain about whether the transaction would be inter vivos or by her will: Tcpt, 25 February 2021, p 157(07-10). Whilst I consider that the suggestion put to him was a rather strained interpretation of his statement, its meaning was clarified later when he said “I think she was certain at the time of the conversation”: Tcpt, 25 February 2021, p 157(20).

Mr Stuart did not make a file note or write to the deceased to confirm her instructions: Tcpt, 25 February 2021, p 157(22-24). When asked why he did not do so, he stated “I could not write my own file notes”: Tcpt, 25 February 2021, p 157(39). However, he accepted that he could have dictated a file note or letter, as was his usual practice at the time: Tcpt, 25 February 2021, p 157(41-50).

On 8 May 2012, the deceased telephoned Mr Stuart and confirmed her instructions for the new Will.

Mr Stuart stated that, after his telephone call with the deceased, he drafted a Will based on the deceased’s instructions at the meeting on 6 February 2012. No evidence was given going to the exact date that Mr Stuart drafted the Will. I infer, from this, that at the time he did so, he was satisfied of the deceased’s then testamentary intentions, at least, sufficiently to enable him to draft a Will.

In cross-examination, Mr Stuart stated that he had other conversations with the deceased regarding the Will and the transfer of the lands between 8 May and 16 July 2012. However, he was unable to recall the substance of what was said on those occasions: Tcpt, 25 February 2021, p 156(34-46).

On the afternoon of 16 July 2012, the deceased attended Mr Stuart’s office at Molong. He told her that he was recording their conversation and proceeded to record the meeting on his dictaphone. Following the conclusion of his conference with the deceased, Mr Stuart took the cassette tape from the dictaphone back to his office at Orange and asked his secretary to transcribe it. He read the transcript and confirmed that it matched his recollection. As was the practice in his office, the cassette tape was then used for other dictation and the recording of the meeting was taped over. Unsurprisingly, but unfortunately, the recording was not available to be played at the hearing.

In cross-examination, Mr Stuart accepted that, before commencing to record what was to occur, there had been some discussion with the deceased (which was not otherwise recorded or transcribed): Tcpt, 25 February 2021, p 161(07-09). He could not recall how long the discussion had been, or what was said during it: Tcpt, 25 February 2021, p 161(34-39).

When pressed, Mr Stuart thought he would have said words to the effect of “You’re here to sign a will” and the deceased would have responded “I want to sign it”: Tcpt, 25 February 2021, p 162(45)-163(14).

I am not sure that there is any significance of what was not recorded (which must, at best, be speculation bearing in mind the passage of time that has passed). Far more important, it seems to me, is what was recorded, and transcribed, as follows:

During cross-examination, Mr Stuart was asked detailed questions about this transcript. Mr Stuart was asked about various passages:

He stated that he had asked all of these questions consecutively, rather than taking a pause after each question: Tcpt, 25 February 2021, p 163(25)-164(04).

He was then asked about:

Mr Stuart stated that there was no gap between the first and second line or the second and third line of this exchange: Tcpt, 25 February 2021, p 164(06-26).

Mr Stuart was then asked about:

Mr Stuart stated that there was no gap between his questions and that the deceased seemed “quite positive” that she had no idea: Tcpt, 25 February 2021, p 164(28-48). However, he also stated that he did not think that she appeared confused; or that she had looked at him blankly; or that she did not look around before answering; and that there was no delay in her answer: Tcpt, 25 February 2021, p 164(50)-165(14).

Mr Stuart was then directed to:

He stated that he did not leave a gap between these questions and that the deceased had answered immediately: Tcpt, 25 February 2021, p 165(16-26).

Mr Stuart stated, when asked in cross-examination, that, whilst reading the Will to the deceased, that he was looking at the document and not at her: Tcpt, 25 February 2021, p 165(39)-166(03). As such, he accepted that he did not know if she was reading the Will herself: Tcpt, 25 February 2021, p 166(05-06). It was not suggested that she could not hear what he was reading.

Mr Stuart was then directed to:

He stated that the deceased appeared “quite firm” when she said these words: Tcpt, 25 February 2021, p 166(41-47).

Mr Stuart accepted that he knew that the Will he was asking the deceased to sign did provide for Emma to receive a share of the residuary estate which would be inconsistent with the statement by the deceased and that the deceased, to that extent, did not approve of the contents of the Will: Tcpt, 25 February 2021, p 168(04-13).

Senior counsel for Margo submitted that the reference on 16 July 2012 to Emma not getting any money was a reference to the request from Emma for the deceased to pay for electricity and maintenance for the bore pump, not a reference to a testamentary gift. I accept this submission and do not read the transcript of the discussion, on this aspect, in the same way as suggested by senior counsel for Susan. As has been referred to above, not long before the deceased signed the 2012 Will, she had been in dispute with Emma and her husband, Craig, about the water pump. She had rejected all offers that had been made by them to resolve the dispute by the payment of money to them. In this regard, the deceased had been adamant.

In making the statement that she did about “Emma getting any money”, I am comfortably satisfied that the deceased was referring back to her dispute with Emma and Craig, and that she was not giving instructions for a Will that was inconsistent with what she had previously told Mr Brough and Mr Stuart. The deceased’s statements had been consistent that Emma would be included, with Belinda and Susan, in receiving an equal share of the deceased’s residuary estate.

It is also consistent with Margo’s evidence, which I accept, that the deceased had told her when she saw a copy of the letter of 16 April 2012, received from Emma and Craig, that she wanted to take Emma out of her Will but that she had been advised by Mr Stuart that if she omitted Emma completely, that Emma might have grounds to contest the Will and so had decided to “leave it as it is”, which was a reference to the instructions that Emma should get one third of residue.

Next, Mr Stuart was directed to the lines:

Mr Stuart accepted that, until this point in time, there was some uncertainty, in his mind, as to whether the deceased wanted to transfer the land inter vivos or by testamentary device: Tcpt, 25 February 2021, p 170(14-17). Despite his evidence about the earlier telephone conversation, Mr Stuart confirmed that this exchange was the first time he had received confirmation on the matter: Tcpt, 25 February 2021, p 170(19-29).

(It is fair to say that Mr Stuart’s recollection of the day the 2012 Will was signed was not impeccable. I am not entirely sure that his evidence about the last topic was accurate bearing in mind his earlier evidence. Previously, in cross-examination, he had stated that the deceased had rejected the idea of an inter vivos transfer “before she entered the will” (although he could not recall specifically when she had rejected such a transaction): Tcpt, 25 February 2021, p 146(08-20). In any event, what the deceased said was consistent with what she had repeated earlier.)

Even if his later evidence was accurate, it does not seem to me to assist Susan’s case at all. To the contrary, it demonstrates that the deceased had been thinking about what had been discussed with Mr Stuart and with Mr Brough and that it appears that she was able to weigh up the alternatives, finally determining that she did not want to have the land transferred to Margo before her death and accepting the advice that there were disadvantages in making an intergenerational transfer to Margo.

Mr Stuart was then asked about the following lines in the transcript of what had been said:

Mr Stuart stated that he did not think there was a delay in the deceased’s answer to his question: Tcpt, 25 February 2021, p 170(34-45).

In his affidavit, Mr Stuart stated that he had no doubts as to the deceased’s capacity to make a Will, during this meeting:

However, in cross-examination, Mr Stuart accepted that, at that stage, he was concerned about testamentary capacity: Tcpt, 25 February 2021, p 161(44-46). When asked about the steps he took to ensure the deceased had testamentary capacity (other than those appearing in the transcript), Mr Stuart stated that he wrote to Dr Guerin again: Tcpt, 25 February 2021, p 161(48)-162(04).

It was at this meeting, that the deceased executed the 2012 Will. The attesting witnesses were Mr Hodges and Ms Reynolds.

Mr Stuart conceded that he took no specific other steps to ensure the deceased understand, or approved, the 2012 Will: Tcpt, 25 February 2021, p 168(23-24). However, he stated “[The deceased] said she understood the terms of the will” and “[The deceased] said that… she had no questions”: Tcpt, 25 February 2021, p 169(08) & p 170(04).

Mr Stuart’s statement is hardly surprising as the Will that had been drafted included the specific instructions as to the distribution of property, about which she had spoken to both Mr Brough and to Mr Stuart in February, that she had repeated to Ms Christofferson, and that she repeated not once, but twice, to Mr Stuart.

Mr Stuart was cross-examined as follows at Tcpt, 25 February 2021, p 144(06)-144(35):

However, it is to be noted that Clause 6 of the 2006 Will contained a similar provision, which was in the following terms:

(I have included the topic of the charging clause as Susan relies upon the inclusion of that clause, in a Will prepared by Mr Stuart, and the involvement of Mr Brough, as one of the “suspicious circumstances” supporting the allegation of the lack of knowledge and approval: see Paragraphs 10 and 11 of the amended Statement of Claim filed 12 March 2020. As earlier stated, Mr Stuart read the terms of the Will aloud to the deceased.)

On 18 July 2012, Mr Stuart sent Dr Guerin a letter, together with a copy of the Will and the transcription of what had been recorded, which included:

The importance of the opinion expressed in the first sentence of Mr Stuart’s letter to Dr Guerin, which was written almost contemporaneously with the date on which the deceased had executed the 2012 Will, and the accuracy of which Mr Stuart was not directly challenged, should not be underestimated. In this regard, the cross-examination of Mr Stuart about the events occurred over 8 years after the 2012 Will was signed by the deceased. It is not surprising that some of his evidence may not have been entirely consistent with contemporaneous documents.

On 18 July 2012, Mr Stuart sent the deceased a letter, enclosing a copy of the Will, the letter sent to Dr Guerin on 18 July 2012 and a copy of the transcript from 16 July 2012. The letter included the following words:

In cross-examination, Mr Stuart accepted that this was the first time he had written to the deceased to suggest that she go and see Dr Guerin, despite being told, in February 2012, that she was potentially suffering from early dementia: Tcpt, 25 February 2021, p 173(33-39). He accepted that he wrote this letter because he was concerned about her testamentary capacity: Tcpt, 25 February 2021, p 174(11-14). He later stated that he “wanted confirmation as to her capacity”: Tcpt, 25 February 2021, p 174(28).

Mr Stuart did not have any recollection whether the deceased saw Dr Guerin, or whether he had heard, subsequently, from the deceased, or from Dr Guerin about any such consultation. However, there was evidence that Dr Guerin had replied, by letter dated 19 July 2012, which was in the following terms:

Although Dr Guerin expressed an opinion as to the deceased’s understanding, the part of the report containing that opinion was objected to and rejected because its basis was not explained in the report and there was no evidence of him having undertaken any formal testing when he expressed the opinion. It was difficult to know upon what, precisely, the opinion expressed was based. (I considered that to allow it might be unfairly prejudicial to Susan.)

Some of Mr Stuart’s evidence, in cross-examination, about what he did, or did not do, suggests that he did not have a very good recollection of the events. What is clear is that, contemporaneously, he did not express a doubt about the deceased’s capacity. At the date of the hearing, he was retired. I formed the view, from his demeanour, and some of the answers that he gave in the witness box, together with the long pauses before some of his answers, that he was struggling to recall events which had occurred 8 years earlier.

The cause of his lack of recollection, other than the passage of time, would be mere speculation. However, I am satisfied from all of the evidence, that, at the time, including from the transcript of the instructions, that he had based his opinion that “Nancy had full testamentary capacity at the time and that she understood the nature of the Will and its effect” on a proper and contemporaneous assessment.

In my view, the transcript of what occurred at the conference, as recorded, prior to the 2012 Will being executed, is important. Mr Stuart read out the 2012 Will as the deceased appeared to read it. When he asked the deceased if she had any questions, she said that she did not. She did not say that could not “follow or appreciate the legal jargon”, or that she could not “comprehend Mr Stuart's reading aloud of the Will”.

I shall return to the evidence of Dr Cetiner later in regard to those matters and about the significance of some of the statements made by the deceased later in these reasons, which in my view support the conclusion that the deceased did have testamentary capacity at the time she executed her Will.

There is nothing to suggest that, at the time, Mr Stuart was acting other than with proper vigilance and with due attention to the deceased’s instructions. He conferred with the deceased, on her own, more than once, before she signed the 2012 Will and he had confirmed his instructions subsequently by sending to her a copy of that Will, together with other documents.

Under cover of a letter dated 19 September 2012, Mr Stuart sent a copy of the signed version of the 2012 Will to the deceased “for your records”. The letter also stated that the original Will, the Power of Attorney and Appointment of Enduring Guardian had been placed in the firm’s deeds safe and would remain there unless otherwise instructed by her. A copy of the firm’s Tax Invoice was included with the letter. It included the following statement:

Mr Hodges specifically recollects the deceased signing the 2012 Will on 16 July 2012. He knew the deceased as a neighbour of his client, Mr Copson, and he had met her, briefly, on several occasions when she had driven Mr Copson to complete his tax return.

Mr Hodges recollected that he greeted the deceased and made reference to her knowing Mr Copson. The deceased said:

According to Mr Hodges, at the time of the Will being signed, Margo did not say anything to him about the deceased’s “condition”: Tcpt, 24 February 2021, p 111(46-47). However, he stated that, at another time, Mr Stuart had told him that she “was starting to sort of be in the early stages of dementia”: Tcpt, 24 February 2021, p 111(49)-112(02).

Mr Stuart had also told him that the deceased was Mr Copson’s guardian and that a solicitor “involved with that sort of thing” should be contacted: Tcpt, 24 February 2021, p 112(32-42).

Initially, Mr Hodges stated that he was “pretty sure” that this conversation occurred after the 2012 Will had been signed: Tcpt, 24 February 2021, p 112(09-14). He thought that it was “at least six to 12 months” after the 2012 Will was signed: Tcpt, 24 February 2021, p 112(27-30), “probably later in the year December or… early 2013”: Tcpt, 24 February 2021, p 113(26-28).

However, during cross-examination, Mr Hodges was shown a file note, prepared by Mr Brough, relating to the meeting held on 6 February 2012, in which was written:

Mr Hodges then accepted that he was not present at the meeting to which the file note related and said that the conversation about the deceased’s dementia would have, in fact, occurred before the signing of the 2012 will: Tcpt, 24 February 2021, p 114(17-20). He remained unsure of the exact date but stated “I presume [it was] within a month or two of that meeting [on 6 February 2012]”: Tcpt, 24 February 2021, p 117(50)-118(03).

According to Mr Hodges, he had been approached by Mr Brough at this time and was told that the deceased “had early onset dementia and [to] talk to Michael Shillington who was Mr Copson’s solicitor about getting that possibly changed, because of her… condition”: Tcpt, 24 February 2021, p 114(31-41).

Mr Hodges accepted that he “did not have a file note to back up when it was said or anything like that”: Tcpt, 24 February 2021, p 119(24-27).

Mr Hodges was also uncertain about the identity of the person with whom he had a conversation about the deceased’s dementia, stating at various points in cross-examination:

It is unsurprising that Mr Hodges did not recollect the identity of the person who told him about the deceased suffering from dementia, bearing in mind his limited involvement.

Importantly, Mr Hodges did not give evidence of having observed any obvious signs of dementia at the time the deceased signed the 2012 Will. Nor did he say that there was anything which led him to conclude that she may not have had the capacity to understand what she was signing.

Because there was some criticism of each party’s evidence, I shall record next, the evidence given by each of the parties and my conclusions about her credibility respectively. It is to be borne in mind that each is an interested witness, who held strong views as to the deceased’s condition and as a result, perhaps, naturally, each lacked some objectivity.

I start by noting that Susan is a speech pathologist and that she has worked in hospitals. She said that she often sees people with dementia. She was an articulate and intelligent witness.

According to Susan, the deceased’s mental capacity was “greatly impaired”, from 2009 onwards. I do not accept this description. Nor do I accept that the deceased exhibited any obvious impairment as early as 2009. Although Susan mentioned in her affidavit made on 16 October 2019, in paragraph 10, that she had taken the deceased to a GP in 2009 due to concerns about her capacity, her evidence on the topic is inconsistent with:

Susan gave evidence that in December 2010, she had observed the deceased was unable to write a congratulatory card. At around this time, the deceased had begun to hand over her entire wallet to cashiers when she was shopping. More significantly, Susan’s evidence was to the effect that the deceased’s recollection was so poor that she did not remember seeing Margo, despite the latter's regular visits.

Susan stated that she observed the deceased to have become unable to care for herself, manifested by an inability (for example) to keep fresh food and to look after the house. In stating this, she noted an email sent to her on 14 February 2011 in which Margo had written:

Susan also stated that, prior to taking the deceased to Dr Guerin, she had discussed her concerns with Margo and with Margaret. Susan recalls that both had told her they thought there was a problem and that they had also noticed changes in the deceased's behaviour and memory. Susan said to Margo: “Mum keeps telling me she hasn't seen you for days and complaining that she hardly sees you?” to which Margo replied “That's not right I do see her. But Scott and I don't have lunch with mum when we come out, as there is no food, or the food is mouldy”.

During the consultation with Dr Guerin, Susan stated that he had spoken only to the deceased and "was reluctant to do anything when I was there or even discuss anything with me". Susan "felt like he wasn't listening or acknowledging my concerns". She stated:

However, in cross-examination, Susan was taken to Ex TB1/10, a progress note made by Dr Guerin in his practice records on 26 October 2011, recording a visit to him by the deceased and Susan. In this note, Dr Guerin stated "daughter became abusive". Susan stated "I don't recall becoming abusive": Tcpt, 24 February 2021, p 90(14-15).

Initially, in cross-examination, Susan stated that Dr Guerin "asked me to leave, but I don't recall that he separated mum and I": Tcpt, 24 February 2021, p 90(36-38). However, Susan later accepted that she had left when Dr Guerin asked her to: Tcpt, 24 February 2021, p 91(14-21). Susan denied that she had physically propelled the deceased out of the room: Tcpt, 24 February 2021, p 92(05-09).

On this aspect, I do not accept Susan’s evidence. I consider that the contemporaneous records reveal far more about the event than Susan was prepared to admit. I tend to the view that her conduct, on this occasion, was highly combative, as reflected in the notes of Dr Guerin.

According to Susan, a couple of months after the appointment, she attended an appointment with Dr Cetiner. Susan recalls telling Dr Cetiner about the language changes she had noticed in the deceased and asking if the deceased had a specific type of dementia. Susan recalled that Dr Cetiner stated that this could only be tested post-death.

Susan also recalled that in 2011 or 2012, when in Orange, the deceased had wanted to buy some lollies from a coffee shop for her grandchildren. Susan stated that she stayed in the car with her children. When the deceased returned, she said that she had been unable to find the coffee shop.

Susan recalled Margo telling her, in December 2012, that, whilst visiting Susan in Sydney, the deceased kept trying to escape from her hotel room in the middle of the night, forgetting where she was and what she was doing. However, Margo’s evidence is that she woke up during the night and the deceased was trying to open the hotel door. When Margo asked her what she was doing, the deceased stated that she was trying to find the bathroom. Margo stated:

Margo, also, was an articulate and intelligent witness. It is to be remembered that she was the person who had, by late 2011, been living with the deceased for about 6 years. Although she did commence to live with Scott in 2011, she remained the person with the closest relationship to the deceased and the one who saw her most regularly. Hers was more than casual observation.

She stated that, in May 2008, she drove the deceased for an MRI in Dubbo and to Sydney for specialist appointments at the RPA. In June 2008, the deceased had an operation at the Royal North Shore Hospital.

After the operation in June 2008, the deceased made the decision to stop driving to Orange and to only drive locally within 15km of Molong. Margo would drive the deceased to Orange when required.

According to Margo, in 2011, the deceased’s behaviour became a “bit odd”. In cross-examination, Margo stated that the first thing she noticed that caused her concern was, in June 2011, when she and the deceased were marking lambs and the deceased had difficulty “doing something that she had done for numerous years”: Tcpt, 25 February 2021, p 191(39-45). Margo also recalled an incident, in the second half of 2011, where the deceased had left a farm gate open and that shorn and unshorn sheep became mixed: Tcpt, 25 February 2021, p 191(47-50). She also noticed that the deceased misplaced items, like her dentures and handbag: Tcpt, 25 February 2021, p 192(01-02).

In cross-examination, Margo was shown a note, prepared by Ms Christopherson, which recorded Margo as saying that the onset date of the deceased’s symptoms was December 2010 and that those symptoms included “confusion and memory loss”: Tcpt, 25 February 2021, p 193(04-05).

In spite of the contents of the note, Margo maintained that she had only noticed the deceased’s memory problems in the second half of 2011: Tcpt, 25 February 2021, p 193(36). She also denied that the deceased was losing her mind or was confused from time to time before then: Tcpt, 25 February 2021, p 193(45-49). Margo rejected the proposition that she had told Ms Christopherson that the deceased was “extremely vague”, “can’t write her name anymore” or was confused all the time: Tcpt, 25 February 2021, p 195(31-40).

Margo denied that, from about early 2011, the food in the deceased’s fridge occasionally became mouldy or that the deceased sometimes ran out of food: Tcpt, 25 February 2021, p 196(33-38). Margo also denied that the deceased’s premises were run down at this stage: Tcpt, 2 March 2021, p 273(20-21).

However, in cross-examination, Margo was unable to explain why she told Susan, around this time, that she had “checked the fridge and it smells much better” and “it will be safe to visit [“Arakoon”]”: Tcpt, 2 March 2021, p 273(01-18). On this topic, I tend to the view that Margo’s evidence is more likely to be inaccurate and that there was food in the deceased’s fridge that had become mouldy.

In relation to the event involving Susan and Dr Guerin, Margo had asked Dr Guerin to complete an MMSE and had requested Susan to attend the appointment. Margo denied having told Susan that she thought the deceased was suffering from worsening dementia: Tcpt, 25 February 2021, p 197(19-21). Indeed, Margo said that she had not detected there was anything wrong with her mother’s speech or her ability to converse at that stage.

During cross-examination, Margo was directed to a note by Dr Guerin of an appointment he had with the deceased and Margo on 7 November 2011. Margo could not recall her or the deceased stating that her memory was deteriorating rapidly. She was unable to explain why Dr Guerin had noted these matters in his records: Tcpt, 25 February 2021, p 197(48)-198(09). Margo accepted, however, that Dr Guerin had told her that the deceased “possibly had early stages of dementia” on this occasion: Tcpt, 25 February 2021, p 199(08-09).

On 7 November 2011, Mr Stuart drafted and executed an Enduring Power of Attorney and Appointment of Enduring Guardian for the deceased, appointing Margo. In cross-examination, Margo accepted that she had told Mr Stuart, at the appointment executing these documents, “that [the deceased] had memory problems and they were doing tests at that time”: Tcpt, 25 February 2021, p 200(36-40).

In cross-examination, Margo accepted that, by December 2011, the deceased had suffered some deterioration in memory, diminished functioning and that on occasions, had been anxious and teary: Tcpt, 25 February 2021, p 202(07-31). However, she denied that the deceased was confused, disorientated about the days of the week, or when away from her own environment, or that she was increasingly dependent on Margo: Tcpt, 25 February 2021, p 203(24-37).

Margo also accepted that, by the end of 2011, the deceased’s handwriting was not as neat as it had previously been and that the deceased had difficulty, in general, with writing. However, she denied that that the deceased could not write her own signature: Tcpt, 25 February 2021, p 203(06-22).

Margo accepted, also, that at the end of 2011, Dr Cetiner had diagnosed the deceased with early stage dementia. Margo informed Susan of the diagnosis, but, at the request of the deceased, had not informed Emma and Belinda.

Margo stated that, despite the diagnosis of early stage dementia, the deceased’s mental capacity was not “greatly impaired” in 2011 and that she continued to work on the farm, with Margo, until late 2013.

Margo acknowledged that, as the deceased’s health deteriorated, some of the incidents to which Susan had referred in her affidavit of 23 May 2019 had occurred, such as the deceased wandering around Molong or handing over her entire purse as payment when shopping. However, as Susan acknowledged, some of these events occurred around the time that the 2012 Will was executed.

On 19 April 2012, Margo took the deceased to see Dr Cetiner for another appointment. Margo accepted that the deceased had continued to show signs of cognitive impairment: Tcpt, 2 March 2021, p 281(24-26). According to Margo, the deceased was able to tell Dr Cetiner how many tablets of Aricept she was taking, but not the milligram dosage: Tcpt, 2 March 2021, p 282(10-29).

In cross-examination, when asked whether she knew why the deceased was undertaking MMSEs on a regular basis, Margo stated “I thought [the deceased] was doing these every couple of months to get another prescription for the medication”: Tcpt, 2 March 2021, p 289(50)-290(03). (Dr Cetiner confirmed that, at the time the deceased was taking Aricept, the Pharmaceutical Benefit Scheme (PBS) required a patient to show at least a 2 point improvement in their MMSE scores after commencing Aricept to qualify to continue to receive it with a PBS subsidy. However, he did not explicitly state that this was a reason for the deceased having to undergo the MMSEs.)

By the end of 2013, there were occasions when Margo found medications at “Arakoon” that had been opened but had not been taken by the deceased: Tcpt, 2 March 2021, p 283(06-11).

In January 2014, Dr Guerin suggested that the deceased’s drivers licence be revoked.

I have carefully read the evidence of Susan and Margo. It is likely that there is truth in some of the evidence of each of them. There is also some evidence given by each that I do not accept. However, I tend to the view that this has more to do with the passing of time rather than any dishonesty or attempt to mislead the Court.

Overall, I tend to the view that Susan exaggerated the severity of the deceased’s condition in the period before July 2012. This is not to say that the deceased did not suffer from some cognitive difficulties in 2011 and in the first half of 2012. From all that I have read, I do not think her condition, at all times, during this period, was as bad as Susan stated.

However, I am also satisfied that the deceased’s cognitive abilities, throughout the period, was not quite as good as depicted by Margo. In this regard, it must be remembered that by December 2011, a decision was made to obtain medical advice from a specialist medical practitioner, Dr Cetiner. This, alone, suggests that there were some matters of concern about the deceased’s cognitive condition that required specialist medical diagnosis. In reaching these conclusions, I have also borne in mind the evidence of other witnesses.

The medical evidence relied upon in the case consisted of a copy of the medical notes of the Molong Medical Centre at which the deceased’s treating general practitioner, Dr Guerin, conducted his practice; the contemporaneous and other reports; the affidavit and oral evidence, of Dr Cetiner; and the affidavit and oral evidence of Ms Christopherson.

The medical notes record, amongst other things:

There is no suggestion that the documents referred to did not accurately record what the author observed on the date recorded.

Ms Christopherson’s notes were the subject of evidence. For example, in one of the records, it was noted (with minor amendments correcting spelling errors):

Ms Christopherson stated that that it was her practice to raise with patients the need to think about the care she, or he, wished to receive as she, or he, became older so they could make decisions about it while they still had the capacity to do so.

However, in cross-examination, when asked if she would speak about a directive to someone of the deceased’s age if she had a concern about the patient’s mental capacity, Ms Christopherson stated: “No, the advanced life directive doesn’t have anything to do with capacity”: Tcpt, 2 March 2021, p 310(39-41).

Ms Christopherson stated that, when she began explaining the advanced life directive to her, the deceased asked “Is this about the farm? I want Margo to have… the farm. She’s worked so hard”. Ms Christopherson replied: “You will have to see a solicitor about that. This is about making health decisions”.

In her affidavit, Ms Christopherson referred to Dr Cetiner's description of the deceased as disordered, confused, never very "conversive", giving monosyllabic answers and not being lucid. She stated that the description given did not accord with her recollection of the deceased in 2011 and 2012. She recalled having several conversations with the deceased about her diagnosis of dementia and, before Mr Copson's death (in June 2014), about his health and about what was happening on the farm. Ms Christopherson recalled the deceased answering questions and volunteering information about Mr Copson and farm events. She stated that the deceased often said words to the effect of: "It's hard for Ron. He lives on his own. He doesn't have power. I am worried about him. He doesn't have support like I've got Margo and Marg and Judy”.

Ms Christopherson also recalled that the deceased was always very comfortable talking about family, farming, or the weather.

In cross-examination, Ms Christopherson maintained that her recollection was that the deceased was not confused all of the time: Tcpt, 2 March 2021, p 305(42-44). However, she accepted that "when [the deceased] was anxious she could get confused": Tcpt, 2 March 2021, p 306(03-05).

Ms Christopherson also recollected that, after the deceased’s husband died, the deceased said "My daughter Margo is coming to help me run the farm. She is leaving her job in Sydney" and that subsequently the deceased often spoke about Margo and her work on the farm. She regularly said words to the effect of: "I couldn't do it without Margo's help. It's hard work". Ms Christopherson recalls the deceased, on one occasion, stated: "Margo has a boyfriend and I miss her when she is with him".

According to Ms Christopherson, on several occasions prior to October 2012, the deceased had told her Margo was "continuing to work hard on the farm" and that she "want(ed) Margo to have the farm after [her] death".

Dr Cetiner saw the deceased for the first time on 29 December 2011. He continued to see her, at various times, until 8 December 2016. He had received a copy of the Referral Form dated 15 November 2011 from Dr Guerin (which had been completed by Ms Christopherson). He had also been provided with the results from a series of standard pathology tests used to screen for dementia and a CT scan of the deceased of 2 November 2011 which can be found at Ex TB1/113:

Dr Cetiner described cerebral atrophy as meaning “a decrement, or decrease in the size of the cell. In brain tissue, atrophy describes a loss of neurons and the connections between them”.

Dr Cetiner noted that the deceased presented with a 12-month history of cognitive changes and consequential behavioural changes, manifesting in the form of forgetfulness. He did not make any assessment of her cognition but noted that there had been some subtle improvement in her since she had commenced on Aricept.

Dr Cetiner indicated that based on the CT scan results, he would expect to see an impairment of conscious thought and voluntary processes. He said that his observations of the deceased included trouble with language (i.e. expressive dysphasia), confusion, disordered words and monosyllabic answers. Based upon his observations, the referral, the MMSE results, the screening test results and the patient history he diagnosed the deceased with Alzheimer's disease in the mild to moderate range.

After the consultation, Dr Cetiner recommended increasing the deceased’s dosage of Aricept to the maximum of 10mg daily. He also recommended that she commence taking an anti-depressant if the increased dosage of Aricept did not improve her mood.

When asked in cross-examination, Dr Cetiner said that he was not familiar with the drug Protos (or Cafergot), and could not recall whether or not he had previously been told that the deceased had been taking it, or that she had been taken off it a month before he saw her, specifically because one of its side effects was to cause confusion. Therefore, he could not make any comment on the extent to which the cessation of Protos (or Cafergot) might also have led to an improvement in the deceased's mental condition.

On 19 April 2012, Dr Cetiner attended on the deceased again. (He did not think he had seen her otherwise after her first consultation in December 2011.) Margo was present for the consultation. He performed another MMSE in which the deceased achieved a score of 16/30. One of the MMSE tests indicated there were some issues with her handwriting and visuospatial function.

Margo informed Dr Cetiner that the deceased had begun taking Zoloft, which had stabilised her mood, but that the cognitive deficits remained. Although her score on the MMSE, conducted on this date, showed only a modest improvement, Dr Cetiner stated that there had been more significant clinical improvement in terms of her affect and manner, as “she was less distressed, less labile and crying, and more co-operative that day”: Tcpt, 23 February 2021, p 23(06-14).

Dr Cetiner also noted that, clinically, there had “been an improvement with [the deceased’s] mental state and behaviour”; that she “keeps a daily calendar to remind herself”; that she was still “independent with her living skills and there are no services”; that in the MMSE conducted on that day, she scored 16/30 and she still had cognitive impairment. He also recorded that “[S]he was eating and sleeping well”, and that “[A]gain there were no symptoms of mental illness such as psychosis or mood disorder”.

He summarised his opinion on her condition in a letter dated 19 April 2012 to Dr Guerin stating:

Dr Cetiner provided another letter, dated 23 May 2012, to Dr Guerin in which he noted that “on 19 April 2012, there was more significant clinical improvement…”.

Dr Cetiner saw the deceased again on 11 October 2012. On this occasion, the score she achieved on the MMSE was 20/30, which he wrote showed “significant improvement with her cognition”. He added that “Clinically at least, she remains unchanged with her level of cognition and functioning… there has been no obvious progression of her dementia”. He recommended the deceased continued on her medication.

In his affidavit, Dr Cetiner explained that he considered an MMSE score between 20 and 23 indicated “early stage or mild dementia”, and that a score of between 10 and 19 indicated “moderate dementia”.

During the course of his consultations and treatment of the deceased, Dr Cetiner was not asked to assess, or to even consider, her testamentary capacity. To use his words, the question of testamentary capacity “never came up”: Tcpt, 23 February 2021, p 31(21). Indeed, the first time he was asked to do so was in April 2020, over eight years after he had first seen the deceased. The request was made by Susan’s legal representatives in the course of obtaining evidence. In other words, during the period of time that he saw the deceased, Dr Cetiner had never been required to formally assess her testamentary capacity.

Dr Cetiner agreed that he had not been given any of the other affidavits in these proceedings until sometime before 19 February 2021 (the date he swore his second affidavit); that even then, he had not been furnished with the evidence of either Mr Brough, or Mr Stuart, particularly the affidavit of each made in January 2020, and, therefore, did not know of the evidence each had given of his conversations with, or observations of, the deceased. It is clear, however, that he had been shown the transcript of the conversation that the deceased had with Mr Stuart on the day she signed the 2012 Will.

Dr Cetiner was cross-examined as follows at Tcpt, 23 February 2021, p 25(21)-26(25):

In re-examination, Dr Cetiner stated that from the MMSE of April 2012, he would conclude that “her language skill at that time from that question, particularly expressive, is very poor”: Tcpt, 23 February 2021, p 29(43-44). What follows demonstrates that perhaps it was better than he recollected.

Following the questions asked by senior counsel for Susan, Dr Cetiner gave some answers in response to questions from the Bench: Tcpt, 23 February 2021, p 31(23)-34(13):

Senior counsel for Susan then asked some questions Tcpt, 23 February 2021, p 35(41)-36(42) (with minor spelling corrections):

Susan submitted that the deceased did not have the requisite level of testamentary capacity at the time of signing the 2012 Will. In doing so, Susan relied on the evidence of Dr Cetiner, the only medical expert called in these proceedings. She maintained that weight should attach to his opinions because they were formed at the critical times with the benefit of at least one lengthy conference with the deceased and having taken a history from Margo.

Margo submitted that Dr Cetiner’s conclusions as to the deceased’s capacity were formed without knowing of some significant evidence bearing on the deceased’s condition, namely:

Margo submitted that the views of Dr Cetiner must be considered carefully.

Not very much time, if any, was spent by either senior counsel on the events in February 2012, in which there had been discussions with Mr Brough and with Mr Stuart about her testamentary intentions. Importantly, Dr Cetiner himself did not comment on what either of them had stated in his affidavit about those events and the instructions given by the deceased at that time.

Importantly, there can be no dispute that in December 2011, the deceased was diagnosed with dementia and that the conclusion of dementia of the Alzheimer’s type was an accurate one. As the Court knows, dementia is a neurodegenerative condition characterised by the development of multiple, cognitive deficits, usually including memory impairment, whilst not impairing consciousness. Yet, there was no evidence of any neuropsychological examination. There was clearly evidence of the deceased suffering some impairment of memory and of cognition, but there was no evidence of any behavioural, or psychological, symptoms of dementia. Nor was the deceased suffering from any debilitating physical ailments, she being able to continue to do the farm work with Margo.

In relation to the various MMSE conducted, it is to be remembered that the examination is wholly insensitive to executive dysfunction. It is insensitive to cognitive impairment in a more general sense, such as in relation to frontal executive functions of insight, judgement and the ability to plan. Scores are also influenced by IQ and education levels.

It is also clear that in 2011 and 2012, the deceased had an understanding of personal, health and lifestyle decisions that she was required to make and she was able to make those decisions. For example, signing an Enduring Power of Attorney and Appointment of an Enduring Guardian suggests that she was able to understand these matters.

In executing the Power of Attorney, Mr Stuart completed a certificate under s19 of the Powers of Attorney Act 2003 (NSW), which read:

There was no suggestion put to Mr Stuart that the certification that he gave was inaccurate.

The deceased’s condition did not follow a straight line and there appear to have been periods of exacerbation and fluctuation.

I must also take care to remember, in the assessment of Dr Cetiner’s evidence, that much of that evidence was directed to questions of capacity, generally, rather than testamentary capacity, and that the deceased’s capacity to execute a will was not under direct consideration.

According to Susan, the transcript of the deceased’s 16 July 2012 meeting with Mr Stuart demonstrates that the deceased could not identify, with precision, her assets or give an accurate description of Margo’s career. Further, the deceased had been prescribed and was supposed to be taking 10mg of Aricept to improve cognitive functioning, but it appears that she was not taking Aricept, or was not taking it correctly, by July 2012.

Susan submitted that Mr Stuart made a number of concessions in evidence, which demonstrated the deceased’s lack of capacity, including:

According to Susan, Mr Stuart undertook no comprehensive test of the deceased’s testamentary capacity, failed to correct her misunderstanding as to the terms of the Will, and, even after 16 July 2012, harboured doubts about her testamentary capacity.

During oral submissions, senior counsel for Susan referred to Veall v Veall (2015) 46 VR 123; [2015] VSCA 60, in which Santamaria JA stated (Beach and Kyrou JJA agreeing), at [186]:

Susan submitted that Mr Stuart’s evidence was unreliable, given that he was unable to remember many of the details of what occurred at his meetings with the deceased on 6 February 2012 and 16 July 2012.

Susan submitted that the deceased also did not know and approve of her Will, given that:

However, in oral submissions, senior counsel for Susan accepted that, despite her assertions that the deceased was a significantly demented elderly person living on her own, she had given no evidence of any attempts made by her to assist the deceased in the years following 2011: Tcpt, 3 March 2021, p 340(12-23).

Senior counsel also accepted that Susan did not file a caveat to prevent a grant of probate and took a year to bring her claim for revocation of the grant: Tcpt, 3 March 2021, p 340(25-43). Whilst she may not have known all of the particulars that she inserted in her Statement of Claim when it was filed, according to her evidence, the deceased was significantly impaired from 2009. In this regard, she gave evidence of her experience as a speech pathologist and her observations of dementing patients.

Susan was not cross-examined on the deceased’s capacity and she submitted that special significance should attach to this fact. Senior counsel for Susan referred to Gooley v Gooley [2021] NSWSC 56, in which Sackar J wrote, at [1150] - [1152]:

The matters to which I have referred about Susan’s evidence on her observations were self-evident and did not require cross-examination.

Susan submitted that when the deceased stated that she did not want Emma to have any money, she was referring to the money proposed to be given under the 2012 Will. She relied on the fact that Mr Stuart accepted, in cross-examination, that the deceased was referring to the Will when she made this statement. Further, the pump dispute was not the subject of any earlier discussion on that day and there is nothing in the transcript which could have caused the deceased to turn her mind to it. The last communication on that topic occurred on 8 May 2012, being the date of Mr Stuart’s letter on the topic.

During oral submissions, however, senior counsel for Susan accepted the proposition I put to him that “Elderly people… often come back to issues that have been bothering them” and that the pump dispute had “been a very significant issue in relation to the last six months of [the deceased’s] life”: Tcpt, 3 March 2021, p 349(09-20). I have dealt with this issue earlier in these reasons.

Margo’s case is that the provisions of the 2012 Will set out a natural and logical testamentary scheme, having regard to the deceased’s circumstances and those persons who might have had a claim on her bounty. I accept this submission.

Margo relied on the unequivocal, and repeated, statements made by the deceased during her meeting with Mr Brough and her meeting with Mr Brough and Mr Stuart on 6 February 2012, and then what she repeated to Mr Stuart, concerning “Arakoon” and “Hylands” going to Margo and the residue of the estate being shared between her other three children as demonstrating both capacity and knowledge and approval.

Margo asserted that Mr Stuart’s evidence in cross-examination that the deceased’s statement “I’m not agreeable about getting Emma any money” was a reference to a testamentary gift was mistaken, for the following reasons:

Counsel for Margo, during oral submissions, referred to Salmon v Osmond [2015] NSWCA 42, a probate case in which a child of the deceased had worked, for many years, on the deceased’s rural property. Beazley P (McColl JA and Gleeson JA agreeing) wrote, at [67]-[72]:

Counsel for Margo submitted that he did not cross-examine Susan on this issue because “what's important really is what happened on 6 February when the instructions were given and what happened on 16 July”: Tcpt, 3 March 2021, p 385(25-28).

I turn next to some matters concerning dementia.

The World Health Organisation definition of dementia is:

There is in Nicholson & Ors v Knaggs & Ors [2009] VSC 64 at [369], a very useful summary of the different stages of dementia (footnotes omitted):

The task of the Court in contested Probate proceedings is to determine which is the last valid will of the deceased. Relevantly, in the present case, one focus of the enquiry is to ascertain whether the deceased suffered from any medical conditions that affected her capacity to make the 2012 Will. Another is upon the process by which the 2012 Will was produced.

Wills can be proved in two ways; being in common form or in solemn form. A grant, in whichever form it takes, is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 at 398. The power to grant probate of a will vests in the Supreme Court.

A grant in common form is the result of non-contentious proceedings where the validity of the will is not contested. In that case, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596, at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147, at [35]. It has been described as an interlocutory order. It is usually made on the basis of affidavit evidence, and in the absence of interested parties, by a Registrar exercising the powers of the court.

In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [8], it was said that a grant of probate in common form is inherently revocable. The grant does not create a res judicata, but is subject to later challenge: Romascu v Manolache [2011] NSWSC 1362 at [174]- [177].

In order to obtain a grant of probate in solemn form, the propounder of the will must establish that the will-maker had capacity at the relevant time to make a will, that she, or he, had the intention, by the instrument, to make a will, and that she, or he knew and approved of the contents of the testamentary instrument: Hardingham IJ, Neave MA and Ford HAJ, Wills and Intestacy in Australia and New Zealand (2nd ed) (1989) [301]; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21.

It is open to a court exercising probate jurisdiction to revoke the grant, at any time, upon a proper case being established: Richardson v Rearden [2006] NSWSC 1252 at [16].

In Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (Supreme Court (NSW), 8 May 1992, unrep) Powell J wrote, at 14–18:

Powell J repeated what he had written in Bramston v Morris; Estate of Sini Sophia Murray (aka Sini Sophia Vecht) (Supreme Court (NSW), 20 August 1993, unrep) at 19-20, and Bryson J applied it in Stanley v Stanley [2000] NSWSC 1133 at [8] as did Campbell J in Richardson v Rearden [2006] NSWSC 1252 at [16]. More recently, the passage was referred to, with approval, by Lindsay J in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [293].

The relevant legal principles concerning the determination of the question whether a grant should be revoked were considered in Seeley v Back - Estate of John Michael Pegus Seeley [2005] NSWSC 68, in which Barrett J wrote, at [16] – [17]:

More recently, in Estate Kouvakas; Lucas v Konakas, Lindsay J, at [304] – [306] wrote:

Lindsay J also wrote in Estate Cockell; Cole v Paisley [2016] NSWSC 349, at [51] – [55]:

In this case, there did not seem to be serious dispute that the deceased’s diagnosis of dementia at, or about, the time of the execution of the 2012 Will, was such that it was appropriate to require the executors to prove, affirmatively, on the balance of probabilities, that the deceased had testamentary capacity, and that she knew and approved the contents of that Will. As stated, there was no challenge to the 2006 Will other than on the basis of it having been revoked by the 2012 Will.

In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, I set out the relevant principles. However, for the benefit of the parties in these proceedings, I shall restate what I said there, with additional principles, where necessary.

It is trite that a solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving instructions freely and voluntarily.

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

In Pates v Craig & Anor; The Estate of Cole (Supreme Court (NSW), 28 August 1995, unrep), Santow J, at 36-39, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour wrote:

Because it is relevant to the issues in this case, I also refer to Key v Key [2010] 1 WLR 2020; [2010] EWHC 408, in which there was a reference to what has been described, in the United Kingdom, as “the golden rule”, namely, that “when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings”.

There is no so-called “golden rule” in Australia. At its highest, what is described elsewhere as a rule provides guidance only and any failure to obtain the view of a medical practitioner does not automatically invalidate the will; nor does compliance guarantee its validity. The duty of the solicitor instructed to make a will is to take reasonable steps to satisfy herself, or himself, that the will-maker has testamentary capacity. This requires the exercise of her, or his, judgement.

Certainly, some authority suggests that it would be prudent for a solicitor to obtain a medical opinion as to the will-maker's medical condition and the effect on her, or his, capacity, before making a new will for an elderly client where there is a doubt about testamentary capacity, see, for example: Fradgley v Pocklington (No 2) [2011] QSC 355 at [28].

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 statement that should be borne in mind is 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, in which (at 107) it was said:

In Nicholson v Knaggs, Vickery J, at [664], recommended a "considered and appropriately structured interview with the testatrix" and, at [387], emphasized that "in order to establish knowledge and approval of a will by a testator, ‘more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him’".

In Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47], White J wrote:

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; his, or her, ability to make an assessment of capacity taken with the quality of the assessment made, as appears from any contemporaneous notes and records; his, or her, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and his, or her, 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, at [51].

Red flags might include recency of hospital admissions or other medical attention received by the will-maker; whether the will-maker is making significant changes to her, or his, will; or that the will-maker is not an existing client of the firm of the solicitor. In circumstances where there are any red flags, the solicitor would be prudent to exercise more caution. In such cases, she, or he, may consider that the only way to be satisfied that the will-maker has testamentary capacity is by obtaining a medical report.

This appears to be a case in which the words of Young J in Re Crooks Estate (Supreme Court (NSW), 14 December 1994, unrep) apply. In that case, at 29, his Honour stated that evidence from a solicitor who has considerable experience, including in dealing with elderly clients, and their testamentary wishes, is valuable evidence of testamentary capacity because:

The passage quoted above was referred to, with approval, in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218, at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing).

Other authority supports the view expressed by Young J. Mummery LJ in Hawes v Burgess, wrote, at [57] and [60]:

Yet, I accept that the value of the solicitor’s evidence should not be overstated, and it should not be regarded as being of magnetic importance. Nor does the fact that a solicitor may genuinely believe that the will-maker had testamentary capacity at the time she executed the Will, displace the Court’s role in deciding whether, in fact, she had testamentary capacity. The solicitor’s evidence must be read with all of the other evidence in the case.

In this regard, Christopher Pymont QC stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43] that the comments made:

In Petrovski v Nasev; The Estate of Janakievska, I wrote, at [89], referring to Pates v Craig & Anor; The Estate of Cole, that a solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the will-maker.

In this case, as has been read, Mr Stuart did seek the opinion of Dr Guerin who provided an opinion, initially, albeit one which was brief and unexplained. Subsequently, he confirmed his earlier opinion.

Furthermore, I have used as a guide, in the consideration of Mr Stuart’s evidence, the contemporaneous correspondence and in this he expressed the view that the deceased had capacity.

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 the caselaw. Nor does the Court adhere to the language of testamentary capacity in the caselaw as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 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: McNamara v Nagel [2017] NSWSC 91, per Robb J, at [263].)

Thus, the test for 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. 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.

In regard to burdens and presumptions, one needs, also, to remember what was more recently written by Leeming JA in Mekhail v Hana; Mekail v Hana at [168]:

Next, I repeat what Powell J stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707:

In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 565-566, stated:

At 568-570, Cockburn CJ referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117, at 290-291, where Erskine J had delivered the judgment of the Court in the following terms:

In Banks v Goodfellow, the Court referred to some American authorities. The first was the case of Harrison v Rowan (1820) 3 Washington at 585, where the Court, after referring to the three usual aspects which the law requires, wrote:

The issue was taken up in the next case referred to, Den v Vancleve (1819) 2 Southard, at 660, where it was stated:

Another case was also referred to, Stevens v Vancleve (1822) 4 Washington at 267, (which has been referred to by Powell J, as he then was, 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:

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….". Thus, 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. 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.

Henry J put this succinctly in The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, at [100]:

Thus, capacity is not a test of memory, but rather, a test of disposition; it is the soundness of the will-maker’s ability to dispose that concerns the Court. The issue is not so much her, or his, ability to remember details, but the soundness of her, or his, ability to decide how assets are to be divided: Frizzo v Frizzo [2011] QCA 308 at [24].

A prima facie case of testamentary capacity will only be displaced if there is evidence that the deceased’s mental facilities had been so affected as to make her, or him, unequal to the task of disposing of her or his property: Pates v Craig [1995] NSWSC 87 at 4 (Santow J).

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

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, at [65]:

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

I should also refer to Bailey v Bailey, at 570-572, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant:

The statement of principle in Banks v Goodfellow 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:

In Re Griffith; Easter v Griffith, at 290-291, the Court considered it a grave matter to invalidate a will:

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

I have also found the following passage in Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82, at [74]-[75] (Poon J), useful to remember:

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 Read v Carmody [1998] NSWCA 182, Powell JA, (with whom Meagher and Stein JJA agreed), wrote (at 4) that a testator or testatrix “is aware, at least in general terms, of the nature, and extent, and value, of the estate”.

In Kerr v Badran; Estate of Badran [2004] NSWSC 735, 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) [2009] NSWCA 197, and by White J in D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333, at [95].

In Frizzo v Frizzo, 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].

In Re Matiasz [2017] VSC 677, Zammit J set out a useful summary of the principles relating to capacity in elderly will-makers, at [25]-[29]:

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 wrote in Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67, at 453:

I also note that in Bool v Bool [1941] St R Qd 26, at 39 (Full Ct, Macrossan SPJ), it was said:

However, whilst that may be a summary of the principle, I prefer to identify the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), 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.

As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time he, or she, gave instructions for the will, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see, Hardingham, Neave and Ford, at [308].

Thus, it would be necessary to establish that the Will, as executed, accords with the instructions given by the will-maker at the earlier time and the principle does not apply if there are material differences between the instructions given and the Will prepared.

In this case, affirmative satisfaction of the testamentary capacity of the will-maker at the time the 2012 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.

Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J).

Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at §19 (Lam VP).

I should refer to Key v Key, at [97] - [98], in which it was said:

As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2), at [65] (Hodgson JA; Young JA and Bergin CJ in Eq agreeing):

It was also aptly put in Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh, Ian M. Hull and Pamela R. Champine, “Assessment of Testamentary Capacity and Vulnerability to Undue Influence” (2007) 164 The American Journal of Psychiatry 722, at 722:

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.

In Parker v Felgate (1883) 8 PD 171; [1883] UKLawRpPro 41, a testatrix gave solicitors instructions for her will in July. She ceased to have testamentary capacity in late August. On 29th August, she executed the will drafted by her solicitors in accordance with her instructions. She died on 2nd September. The executors sought to propound that will. Their claim was opposed by the testatrix’s next of kin on the grounds that the will was not duly executed, lack of testamentary capacity at the time of execution and want of knowledge and approval. The case was tried by Sir James Hannen P with a jury. In the course of summing up, Sir James Hannen directed the jury as to the applicable law. He said, at 173-174:

Thus, the primary occasion for assessing capacity is the date of the execution of the contested will. However, if by the date of execution, testamentary capacity is absent, the rule in Parker v Felgate allows for the assessment to be made on a secondary and earlier occasion: In such circumstances, the Court can nevertheless have regard to whether the willmaker had testamentary capacity at the time when she or he gave the instructions to prepare that will. See also, Bailey v Bailey at 567 and 572.

The force of the rule in Parker v Felgate was recognised by the Court of Appeal in Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3, at [5]:

In addition to showing that the deceased had testamentary capacity, Margo, as the propounder of the 2012 Will, must also show that the deceased knew and approved its contents. This requirement 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.

Chadwick LJ in Hoff v Atherton continued:

The relevant 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):

In Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879, Peter Gibson LJ referred to circumstances in which the court's suspicions might be aroused by the nature of the testamentary provisions and continued at [33]:

In the same case, Chadwick LJ summed the matter up at [65]:

In Estate Rofe [2021] NSWSC 257, Lindsay J, at [129(b)] described the concept as “directed (upon an assumption of testamentary capacity) to whether the testator truly knew the terms of a will and intended to give effect to them”.

Traditionally, a two-stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to “excite suspicion” on the part of the court. If so, the burden is on the propounder of the Will to establish that the deceased knew and approved the contents of that Will. If the circumstances do not “excite suspicion”, then the court presumes knowledge and approval in the case of a Will that has been duly executed by the deceased who had testamentary capacity.

More recently, however, the single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [22], is considered more appropriate:

In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana, at [165] (Leeming JA).

In Hawes v Burgess [2013] EWCA Civ 74, Mummery LJ, with whom Patten LJ and Sir Scott Baker agreed, commented in the circumstances of the case before the court at [12] – [14]:

I should also refer to the judgment of Lewison LJ in Simon v Byford, at [47]:

In Romascu v Manolache, at [205], I wrote that the factors the Court may look at when considering whether circumstances that excite suspicion exist, include:

In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, had observed:

Davey LJ, at 159-160 wrote:

These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, Leona Johnson (Deceased) [2015] SASC 51, at [7].

In Tobin v Ezekiel, Meagher JA put it as follows:

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.

As stated by Kunc J in Ng v Lau [2020] NSWSC 713 at [81]:

Finally, I should mention Paraskov v Paraskos [2002] WASC 109, in which case, Pullin J, at [50] observed:

It is the will-maker’s understanding that is decisive. The sufficiency of evidence going to whether she, or he, knew and approved the contents of the Will depends upon the circumstances of the case. As was put by Lindsay J in Estate Rofe, at [152] – [154]:

I am of the view that the evidence, overall, suggests that the deceased, in this case, in late December 2011 and until July 2012, was in the mild dementia stage, although there were occasions when the symptoms appeared to be referable to the moderate stage.

I have paid close attention to the evidence of Dr Cetiner. Unlike some other probate cases in which experts called provide an opinion on the deceased's capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence in the present case was given by doctors, and others, who had contact with the deceased. Each of Dr Cetiner, Dr Guerin and Ms Christopherson, whose evidence, or documents are relied upon, had the advantage of having personally carried out interviews, examinations and clinical assessments of the deceased. The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe, and assess, the deceased first-hand: Nicholson v Knaggs, at [39] (Vickery J).

However, in the present case, it is clear that none of them was required to undertake any contemporaneous comprehensive assessment of the deceased to satisfy himself or herself of the deceased’s testamentary capacity. This is not of great significance since “[t]he Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance”: Nicholson v Knaggs, at [41].

Furthermore, in the present case, there was direct, contemporaneous, evidence from both the deceased’s accountant and from her solicitor who took instructions from the deceased, who drafted the 2012 Will, read the 2012 Will to her, and who received instructions from the deceased explaining why she made the provision for Margo that she did in that Will. What he said, and wrote, in 2012, was more significant, from an evidentiary point of view, than some of what he said in 2021. The contemporaneous documents made by each of them are compelling.

Mr Brough’s evidence withstood cross-examination. I have no hesitation that he was independent, honest, and, in giving his account, did so impartially.

I acknowledge that some of Mr Stuart’s oral evidence was inconsistent with what he had written and what he had said at the time the instructions for the 2012 Will were given and when the Will was executed.

The instructions that the deceased gave in February 2012 as to her testamentary intentions were clear and unequivocal and she maintained those testamentary intentions when she gave instructions to him to prepare the Will, and confirmed them again when she conferred with Mr Stuart at the time she executed the Will a few months later.

The transcript of some of what the deceased said to Mr Stuart about the Will was clear. This is not a case where her instructions to her solicitor changed in the months prior to, or at, the time she executed the 2012 Will. I am satisfied that she did know and approve of the terms of the Will that she signed.

In my view, the detailed, contemporaneous notes of Mr Brough and the correspondence written by Mr Stuart, are consistent and they more accurately depict the view taken by each of them going to the deceased’s capacity than any estimate of her cognitive functioning by Dr Cetiner, who saw her on only two occasions and who was not concerned about her testamentary capacity. This is not a case of "extreme old age", the deceased being 66 years of age when she executed the 2012 Will, living at home, and looking after herself, and, for the most part, being independent with activities of daily living, although with help from, particularly, Margo.

Nor is this a case in which the deceased’s estate, or the terms of the 2012 Will, were complex. She seemed to have known of the property that she had, including that part of it was held in a Trust. Whilst she may not have known the precise values of all of her property, she had a sufficient idea of it as it was explained to her by Mr Brough and Mr Stuart.

I have found that in mid-to-late 2011 and in 2012, there were signs of dementia. However, as was accepted by senior counsel for Susan, the presence of cognitive decline, or dementia, does not necessarily preclude, and is not necessarily incompatible with, testamentary capacity: Tcpt, 4 March 2021, p 400(04-07).

The deceased, in 2012, considered that she should leave her only substantial assets, being “Arakoon” and “Hylands”, together with associated property, to Margo, who had been a loving and caring daughter throughout their joint lives and who, for about 7 years prior to the making of the 2012 Will, had worked, on a fulltime basis, with the deceased, in maintaining the farms, and the deceased’s lifestyle, at great personal, as well as financial, hardship. The deceased’s wish to stay in her home and work on the farms despite the death of Richard, may have been unreasonable (according to some of her children), but it was Margo who enabled that wish to be fulfilled.

Whilst she continued to maintain her relationship with the deceased, Susan had returned to her life, in Sydney, with Andrew, after the death of Richard in 2005, and did not play the same role, in the life of the deceased, that Margo had thereafter. Belinda and Emma did not, by 2012, play any significant role in the deceased’s life and in the case of Emma, had been involved in a dispute with her.

I do not see any basis for doubt that the deceased knew that those with claims on her bounty were her four children. She was also made aware of the 2006 Will and that she had, then, divided her estate, equally, between her four children.

Because it has been raised in relation to Susan, 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.

In this regard, even if providing for Susan, with whom she had a close and loving relationship, as a residuary beneficiary, with Belinda and Emma, with whom she did not, was unreasonable, it does not mean that the deceased lacked capacity.

In this case, it is clear from the instructions that the deceased considered the claims on her bounty of each of her children. As she stated it, she considered that it was Margo to whom she owed the greatest obligation. The solicitor’s contemporaneous evidence on this topic was confirmed by at least one other independent witness. Whilst it may be accepted that there was a change in the deceased’s Will, this was not a case in which it was an unexplained change.

The 2012 Will is also consistent with statements made by the deceased to other persons, such as Mr Brough, to Mr Stuart and to the registered nurse, Ms Christopherson. Her statements to each reveal the deceased’s state of mind which was consistent with the intentions reflected in the 2012 Will.

Capacity to make a will is to be assessed having regard to the particular will made. At the time she gave instructions for the 2012 Will, and at the time she executed that Will, even though there may have been some degree of cognitive impairment, which seemed to fluctuate, the deceased knew the nature of the act of making a will and its effects; she had a realistic perception of her property; 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. Judged at both times, the 2012 Will was not irrational on its face. In this regard, the apparent rationality of the 2012 Will, from the deceased’s perspective, is an element of my assessment of capacity. However, I do not conclude that the deceased had capacity merely because the 2012 Will was rational from her perspective.

The concept of knowledge and approval is concerned with the contents of the 2012 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 2012 Will and must relate to the preparation and execution of that Will. The transcript of, at least part of, the discussion at the time the deceased made the 2012 Will demonstrates that the deceased knew what she was doing when she executed that Will. I am satisfied that it reflected her testamentary intentions. That Mr Stuart read the Will aloud to the deceased is also a relevant fact in this aspect of the case.

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 deceased did have testamentary capacity at the time she gave instructions for, and then executed, the 2012 Will.

There is no evidentiary support that Margo participated, in any meaningful way, in its preparation or execution. Her conduct, in saying to the deceased that she would be prepared to give up “Hylands” in order to “keep the peace”, a matter rejected by the deceased, confirms that she was not endeavouring to protect her own position by involving herself in its preparation.

I am also affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw or, now, s 140(1) of the Evidence Act, that the 2012 Will expressed the mind of the deceased, that she understood what she was doing and its effect, and that it truly represented her testamentary intentions. Margo 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.

On the whole of the evidence, 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 of execution of the 2012 Will and knowing and approving of its contents.

In view of this conclusion, Margo’s Cross-Claim will be dismissed. It is not really necessary to refer to it further in light of the settlement of the claims of Belinda and Emma. Even if my conclusion about the validity of the 2012 Will is wrong, she is now entitled to receive three quarters of the deceased’s estate as a result of the settlement of Belinda’s and Emma’s claims subject, of course, to satisfying the payments to be made to each of them.

In my view, she would not be able to establish that an order for additional provision should be made for her. I shall, however, have more to say about her competing claim upon the bounty of the deceased in determining Susan’s claim for a family provision order.

I should make clear that some of what follows by way of findings, where relevant, has also been considered in relation to my findings in the Probate proceedings.

In view of the conclusion reached regarding the validity of the 2012 Will, I must now turn to Susan’s family provision claim. In doing so, I shall also refer to Margo’s competing claim, financial and otherwise, upon the deceased’s bounty as part of the evidence in the family provision claim.

Susan maintained a close, mostly harmonious and loving relationship with the deceased throughout their joint lives. She would return to visit on average once a month and would speak to the deceased, by telephone, regularly. Generally, she also visited the deceased every year for her birthday, Christmas, Easter and Mother’s Day.

During oral submissions, senior Counsel for her, accepted that the evidence made clear that Susan had been completely financially independent of the deceased for approximately 40 years: Tpct, 3 March 2021, p 362(05-08).

I next turn to Susan’s current assets and liabilities:

It can be seen from this summary that almost all of her liabilities relate to the costs of these proceedings. Whether she recovers any, or all of those costs, is yet to be determined.

In cross-examination, Susan accepted that her financial position had improved by about $200,000 between May 2019 and February 2021: Tcpt, 24 February 2021, p 94(41-46). Since May 2019, Susan had purchased $40,000 in shares in public companies.

Susan was asked about a credit to an account of $1,200 on 1 September, labelled ‘Fess, September’. Susan stated that:

She accepted that this was “a transfer by way of just saving money [and] putting money aside for expenses” and said “I can’t access that bank account at the teller, so… it’s a bit like a security guard”: Tcpt, 24 February 2021, p 96(38-41).

For the 5 years prior to October 2020, Susan was earning about $97,000 a year: Tcpt, 24 February 2021, p 99(10-12). Her gross annual income at the date of hearing was approximately $84,000. However, Susan plans to start a new position as soon as practicable, working three days per week, in which her annual income will be approximately $62,000.

Susan asserted that she had a number of “needs”. She sought, by way of provision, a capital sum of $1 million: Tcpt, 24 February 2021, p 101(48)-102(01). Her so-called “needs”, when added up, required a much greater sum by way of provision.

She stated that she needed a capital sum to provide an independent income stream which would enable her to work part-time or flexible hours, so she is able to spend more time with her children.

As a speech pathologist, she anticipated that, in future, she will continue to incur significant irregular expenses attending continuing education conferences, which often involve travel. To complete her PhD, Susan asserted that she will require a sum of $280,000, made up of $10,000 in fees and $270,000 in foregone wages over the course of the 3 years it would take to complete the course.

Susan also maintained that she needed a home of sufficient size for her family. She currently lives in Andrew’s house, in Stanmore. According to her, whilst marketed as a 4 bedroom home, it is really only a 3 bedroom home, with the fourth bedroom measuring 2.4m x 2.8m. She stated:

Susan stated that she also needed financial security and security in her tenure in her home, in the form of a capital sum to be used as a contribution towards purchasing a bigger home jointly with Andrew, or to enable the financing of renovations to his home in exchange for having her name placed on the title.

When asked, in cross-examination, why Andrew, did not “fix up his own house”, Susan stated, “I can’t answer that. I can only say it’s his house, I would like to have some financial security and contribute to our relationship, and the house we live in. My name isn’t on the title of the house”: Tcpt, 24 February 2021, p 102(47)-103(01).

In cross-examination, Susan also stated that she has not, to date, had any conversations with him about how, if she received a capital sum, it would be spent on the house in which they currently live: Tcpt, 24 February 2021, p 103(03-29).

In addition, during oral submissions, senior Counsel accepted that it is not a deceased person’s obligation to provide funds to an eligible person to improve a property that is not her own but in which she lives: Tcpt, 3 March 2021, p 367(41-45).

Susan stated that she had been unable to accumulate sufficient superannuation to support herself in retirement and requires a capital sum to provide her with income in retirement and a buffer against contingencies.

However, in cross-examination, she accepted that she has another 20 years before she is likely to retire, during which she will continue to accumulate superannuation: Tcpt, 24 February 2021, p 103(39-44).

Susan also sought additional funds to pay for her three children to attend private schools, which she estimated will cost at least $540,000 plus inflation: Tcpt, 24 February 2021, p 104(25-30). During cross-examination, Susan stated that she wanted an additional $300,000 (on top of the $1 million claimed) to put towards these fees: Tcpt, 24 February 2021, p 104(32)-105(05).

In cross-examination, Susan stated that Andrew currently pays for school fees but that she would like to contribute to her children’s education: Tcpt, 24 February 2021, p 105(10-12). She gave no evidence that he would not continue to do so.

As has been stated, Susan is in a de facto relationship with Andrew who is the father of her children. According to her, Andrew has always insisted that they keep their finances separate.

Susan stated that, in return for living in Andrew’s house, she contributes her entire salary to paying household and childcare expenses and, consequently, has not been able to save any money.

In cross-examination, Susan stated that Andrew made some contribution to family expenses: “he pays some bills, he pays for some of the things the children need like soccer boots, he pays for some insurance”: Tcpt, 24 February 2021, p 93(31-36).

When asked whether Susan had an agreement with Andrew about who pays for what, Susan stated, “No, we have separate finances”: Tcpt, 24 February 2021, p 93(38-40). She also stated “I [use] my wage to pay for things, and then I guess he use[s] his wage to pay for things as well”: Tcpt, 24 February 2021, p 94(02-04). When asked why Andrew does not contribute in a more meaningful way to the expenditure of the children, Susan stated: “I think he does. I guess we just pay for different things”: Tcpt, 24 February 2021, p 94(09-11).

Andrew has an annual net salary of about $157,504, gross before tax. He also received dividends from Lighting Australia Pty Ltd of $204,000 in July 2020 and $102,000 in March 2020.

Andrew was said by Susan to have the following assets:

Susan stated that Andrew planned to retire at age 60. Susan would also like to retire at around age 60, so she can help to look after any grandchildren.

Susan acknowledged that, if their relationship ended, or if Andrew died, she would have a significant claim against him, or his estate, either for a property adjustment order under the Family Law Act 1975 (Cth) or for a family provision order under the Succession Act.

I accept, however, that whilst a person in Susan’s circumstance has the financial resource of those potential claims, she “shouldn’t necessarily be beholden to [her] partner or spouse for providing [her] with a fund in circumstances where a mother has a large estate, and where there is no suggestion of any… disentitling conduct to make it that no provision ought to be made for her out of the estate”: Tcpt, 3 March 2021, p 387(28-34).

Susan’s claimed “needs” demonstrate a problem that occurs in many cases in which a family provision order is sought. The problem is that there is little consideration given to the basis of the claimed “needs” – namely the obligation of the deceased to the applicant to meet the perceived needs. Formulating “needs”, such as renovation costs and the purchase of a pizza oven, private schooling for her and Andrew’s children, and the completion of a PhD which may be characterised as an extravagant “wish list” of wants rather than genuine “needs”, are counter-productive as they may divert the Court’s attention from the real “needs” of the applicant.

In addition, the “need” should be substantiated in some way. By way of example, a claim for an order which includes a capital sum to build up superannuation entitlements should ordinarily have a solid foundation in the evidence.

Margo maintained a close, harmonious and loving relationship with the deceased throughout their joint lives.

In about July 2005, Margo moved from Sydney to “Arakoon”, to live with the deceased. Initially, she took compassionate leave from her middle-executive position to stay with the deceased to help her adjust after the death of Richard, but subsequently resigned. As there was a drought at the time, they had to work together on the farm to keep the stock fed.

Initially, Margo intended to move back for a period of one year to help. However, after about one year, whilst she did not have a specific conversation about staying on at “Arakoon” with the deceased, it was assumed that she would do so.

The deceased expressed her gratitude to Margo for her help during this difficult period, saying, later, “I have enjoyed working with you; we have a good time together. I’m glad that you came home to Arakoon”.

Margo’s work on “Arakoon” was labour intensive and included fencing, animal husbandry, marking sheep, vaccinating, drenching, shearing and feeding the stock. As the deceased never used a computer, Margo was also in charge of the administrative running of the farm including preparing the accounts, paying insurances, creating tax invoices, doing banking, the payroll and the like.

Margo paid, personally, for the internet at “Arakoon” at a cost of $55/month. The telephone bills were shared, in a 60% share by the business and 40% personally by the deceased. Margo was provided with a car by the business in 2010 and, until 2014, she paid for all fuel.

It was accepted that Margo had made a significant financial, and personal, sacrifice in returning to “Arakoon”. Financially she had held a responsible position at her employment and was highly regarded, earning a gross salary of $72,000 per annum. She might have expected significant advancement in the subsequent years if she had stayed. Her income, when working at “Arakoon” dropped to $20,000 per annum ($5,000 being paid per quarter). Any profits made by the Trust which operated the farming business - beyond the $20,000 paid to Margo up to 2012 and the $40,000 after that time, and whatever the deceased received - was used to pay for improvements to the properties and the farming machinery and equipment.

On the personal side, the farming work was hard and made any social life difficult.

As the years went by, it became necessary for Margo to spend more and more time caring for the deceased, in addition to completing the farm work. The deceased said to her “Please do everything you can to keep me living here. I don't want to leave Arakoon. I want to stay in my home”. Although there was some dispute about whether Margo "was there every day" or "was there very frequently" and how often she assisted the deceased with shopping, I am satisfied that she was the person, of all the deceased’s children, who did the most for the deceased.

After 2008, Margo would drive the deceased to medical appointments and on any other occasion that she needed to go to Orange, or to anywhere other than Molong. Contemporaneous medical records record, in late December 2011, that the deceased “remains mostly independent with her living skills, but she is closely supervised by one of her daughters”. (There was no dispute that the reference was to Margo.)

Margo also took over the care of Ron Copson - a long-standing, close family friend, and of Margaret Starr, Richard’s sister, because the deceased was no longer able to do what she had been doing in this regard. (Margaret Starr lives alone in her home in Molong, 13 km from “Arakoon”. She has a pacemaker, deteriorating vision and suffers from macular degeneration.)

In February 2011, Margo moved, on a full-time basis, into the house of her then de facto partner, Scott Miller, in Manildra. However, she remained as the deceased’s primary carer and travelled 5 to 6 days a week to “Arakoon”. In 2013, Margo and Scott were married.

It was not until 2013, that Margo sought help from Merilyn Ball to spend two days a week with the deceased, and subsequently, sought assistance from Baptistcare. The assistance that was provided eased the burden on Margo to some extent, without eliminating it completely.

Whilst the deceased was a resident at Prunus Lodge, Margo visited regularly and would take her mother out for lunch and on weekends. She would visit on most weekends, except on weekends when Susan and her family were visiting. As the deceased’s condition further deteriorated, Margo received advice from staff that it would be better if she did not take the deceased out and that she should visit for shorter periods.

In oral submissions, senior counsel for Margo made reference to the fact that, despite having the opportunity to do so, Margo did not, at any point in the deceased’s lifetime, encourage the deceased to make an inter vivos transaction of “Arakoon” or “Hylands” to her: Tcpt, 4 March 2021, p 398(43-45).

Since 2012, Margo’s salary for managing “Arakoon” and “Hylands” has been $40,000 per annum (which is said to be less than the award rate for a farm manager). From 2006 to 2009, Margo did not have any time off for holidays and, from 2010 to 2019, she had one week off a year.

Margo’s income for the financial year to 30 June 2020 was $43,286, comprising of salary and interest.

Margo’s assets include:

Prior to 2013, Scott had been helping out at “Arakoon”. However, in July 2013, Scott commenced paid employment on the properties. Since that time, Mr Miller has been paid a salary by the Trust of $33,600 per annum, which is slightly under the award rate. Margo states that Scott’s contribution to the farm is in excess of the of the award rate for ‘farm hand’, as he is experienced in cropping and machinery maintenance. Mr Miller also undertakes contract harvesting work in Western NSW and Victoria for 4 months a year. Between 2013 and 2017, Scott received funds from the sale of sheep he ran in his grandfather’s property. His income for the financial year to 30 June 2020 was $33,929, comprising of salary and interest.

Scott is said to have the following assets and liabilities:

However, in cross-examination, Margo accepted that, in her tax return for the year ended 30 June 2018, she had disclosed Scott’s taxable income as $50,000. According to her, the difference between the $50,000 estimate in the tax return and the $33,600 figure in her affidavit was attributable to the sheep that Scott ran on his grandfather’s property and his contract harvesting work: Tcpt, 2 March 2021, p 265(50)-266(04).

Any excess farm income after expenses, including salaries, is reinvested in capital improvements on “Arakoon” and “Hylands”. Margo stated that the substantial amount of salary she had foregone over 14 years and, to a lesser extent, that Scott had foregone over the last 6 years, had been invested in capital improvements on the properties, which have added to the value of both “Arakoon” and “Hylands”.

In cross-examination, Margo accepted that she made a number of errors and omissions in her affidavit of 29 January 2021, setting out her and Scott’s current financial position, including:

Margo does not wish to sell either “Arakoon” or “Hylands”, but wishes to continue farming both properties as she has for the last 15 years. However, in cross-examination, she accepted that, since 2013 (with the exception of 2017), the trust has made a loss: Tcpt, 2 March 2021, p 278(07-09). When asked what would occur if the trust reserves came to an end and the trust was still making losses, Margo stated “We could stop making improvements on the farm”: Tcpt, 2 March 2021, p 278(29-30).

Margo stated that she had never thought about selling one, or both, of “Arakoon” and “Hylands”: Tcpt, 2 March 2021, p 278(26-27). She believed that if either were sold, it would significantly reduce the revenue from current farming activities. She considered that there would not, necessarily, be a corresponding proportionate decrease in costs and that current diversification in farming activities would be reduced, making the business more susceptible to risks.

She said that if “Hylands”, or part thereof, or part of “Arakoon” were sold, two workers would still be required to complete all farming activities and the properties would not generate sufficient income to support two salaries. She said to sell, and to then purchase another property would require significant capital.

Margo stated that if she was unable to establish her own farming operation, she would seek employment as a farm manager, at an average annual salary of $47,000. However, due to the drought, she maintained that finding work in the rural sector was extremely difficult. Furthermore, she believed that her lack of experience in managing external farm hands and not having references from a previous employer would put her at a disadvantage in finding work.

Margo also said that, as she continues to provide support and company for her aunt, she wishes to find employment within 100 km of Molong.

In those circumstances, Scott would also seek to find work as an unsupervised farm hand or manager, with an expected salary of $35,000-$47,000. According to Margo, his ability to find employment is likely to be constrained by his limited experience in managing the finances of a property. Whilst he could undertake contract harvesting, much of this work is located in Western NSW and Victoria. To have him do so, would seriously affect her family’s quality of life and would require capital to purchase and upgrade harvest plant and equipment.

In cross-examination, Margo accepted that, from December 2020 to January 2021, Scott had conducted harvesting work on properties other than “Arakoon” and “Hylands”, as well as conducting the harvests on those properties: Tcpt, 2 March 2021, p 261(37-48). She accepted that he is a “capable contract harvester” who is well regarded in the local community: Tcpt, 2 March 2021, p 262(21-25). He charges $100 per hour for time spent travelling and $250 per hour for time spent working.

Margo was asked about potential ways in which she could satisfy any obligation to Susan incurred in these proceedings. She stated that:

Mr Ivey’s report was the primary source of evidence, in these proceedings, as to the viability of operating “Arakoon” and “Hylands” separately. Currently, as stated, the properties are run in conjunction. Until about 10 years ago, cattle and sheep were run on both properties. In subsequent years, only cattle have been run on “Hylands”, with the exception of fattening of lambs and surplus sheep bound for slaughter. In recent years, more emphasis has been given to cropping on “Hylands”. As also stated, labour for the operation of the properties is provided by Margo and Scott.

Trust income from the farm’s primary production activities varied greatly from 2012 to 2020, with a low of $107,578 in the financial year 2013 to a high of $304,000 in financial year 2018. Total expenses (excluding owner operators’ wages) followed a similar pattern to income, increasing from a low of $92,647 to a high of $282,342.

Over the period reviewed, net profit (before an allowance for the cost of owner/operators’ labour) varied from a high of $93,343 in the financial year 2017 to a loss of $10,408 in the financial year 2019.

The results for the financial year 2019 reflect the adverse seasonal conditions which were experienced in the 2017, 2018 and 2019 calendar years. Average net profit over the nine year period was $33,361 per annum. Net profit showed a close relationship to annual rainfall. Annual rainfall over this period was 18% below the average. The extended period of below average rainfall was a major contributor to low trading profits.

The results for the year 2017 reflected the high number of sheep sold that year for a relatively high price and low fodder expenses: Tcpt, 2 March 2021, p 236(12-18).

In cross-examination, when referred to his summary of the profit and loss statements for RW & NL Starr Trust, Mr Ivey accepted, on the figures presented there, that, on balance, the business has been trading at a loss: Tcpt, 2 March 2021, p 237(14-21). However, he contended that these figures did not accurately reflect the profitability of the business, due to the inclusion of extraneous non-farm factors: Tcpt, 2 March 2021, p 237(19-25).

Mr Ivey also accepted that he did not attempt to reconcile the actual costs for “Arakoon” and “Hylands” with his estimates: Tcpt, 2 March 2021, p 243(06-09). The average year budget for the combined operation produced an operating surplus of $75,736 (before labour costs). He considered this to be a reasonable return for the amount of labour necessary to manage and operate the properties.

Mr Ivey’s assessment of the labour requirement to operate the combined properties is 1.25 full-time equivalents, which would take the form of a full-time manager and some additional part-time or casual assistance. He assessed the gross wage cost of employing a suitable manager to be $55,000 per annum, plus provision of a residence rent free. Superannuation at 9.5% would be payable on this gross wage. He estimated the cost of casual assistance at $30 per hour for an average of 10 hours per week, representing an annual cost of $15,000. Superannuation at 9.5% would be payable on this gross wage.

The average year budget for the operation of “Arakoon” produced an operating surplus of $38,548 (before labour costs). According to Mr Ivey, this was less than a reasonable remuneration for an experienced farm manager.

Mr Ivey estimated that 80-90% of a full-time equivalent worker would be required to run “Arakoon” alone: Tcpt, 2 March 2021, p 234(07-16). However, he estimated that 20-30% of the time, two hands would be either advantageous or necessary in operating Arakoon as a stand-alone property: Tcpt, 2 March 2021, p 243(33-37). Whilst he accepted that the person operating “Arakoon” would have approximately one month (in aggregate) for work off the farm, he maintained that this would only be for certain periods of the year and that the work would need to be found in the vicinity of “Arakoon”: Tcpt, 2 March 2021, p 243(44-49). Furthermore, he stated that the longest period of time that he or she could be away from “Arakoon”, without adverse impact on the operations of the property, was three days: Tcpt, 2 March 2021, p 244(39-42).

To justify an order for provision under the Act, the Court must be affirmatively satisfied that the deceased has not made “adequate provision for the proper maintenance … or advancement in life of the person in whose favour the order is to be made”: s 59(1)(c). If that is established, the Court is empowered to order such provision out of the estate as it “thinks ought to be made” for the identified purposes: s 59(2).

Importantly, the question of the inadequacy of provision is to be assessed at the time when the Court is considering the application. The basis upon which the evaluative judgement is to be undertaken is unrestricted. There is no automatic entitlement to provision stipulated by the Act and the deceased’s Will applies unless a specific application is made and acceded to by the Court.

Other than by reference to the provision made by the Will of the deceased, s 59(1)(c) of the Act leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

King CJ in In the Estate of Puckridge, Deceased (1978) 20 SASR 72 at 77 wrote:

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: White v Barron (1980) 144 CLR 431, at 434-5, 443; [1980] HCA 14; Singer v Berghouse (No 2) (1994) 181 CLR 201, at 210-211; [1994] HCA 40.

Whether the disposition of the deceased’s estate is not such as to make adequate provision for the proper maintenance, education or advancement in life of the applicant, will always, as a practical matter, involve an evaluation of the provision, if any, made for the applicant on the one hand, and the applicant’s “needs” that cannot be met from her, or his, own resources on the other: Hunter v Hunter (1987) 8 NSWLR 573, at 575. This statement is not intended to suggest that an applicant’s “needs”, when compared with the provision made for her, or him, out of the deceased’s estate, should be the only, or even, the dominant consideration. An applicant’s financial needs and the financial needs of other persons with claims on the deceased’s testamentary bounty are important, and often highly important, considerations, but as Basten JA said in Chan v Chan, at [22]:

In Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [81] - [82], Buss JA said, in respect of the first stage of the process:

As Callinan and Heydon JJ emphasised in Vigolo v Bostin, at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The whole of the context must be examined. In this regard, the assessment of what constitutes “adequate provision” for the “proper maintenance” of the person seeking provision is to be assessed not simply by an entirely objective assessment, in monetary terms, of alleged needs.

If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

Section 65(1) of the Act requires the family provision order to specify:

The Court’s order may require the provision to be made in a variety of ways, including a lump sum, periodic sum, or “in any other manner the Court thinks fit” (s 65(2) of the Act). If the provision is made by payment of an amount of money, the order may specify whether interest is payable on the whole, or any part, of the amount payable for the period, and, if so, the period during which interest is payable and the rate of interest (s 65(3) of the Act).

Section 66 of the Act sets out the consequential and ancillary orders that may be made.

The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales, per Dixon CJ, at 19; McKenzie v Topp [2004] VSC 90, per Nettle J, at [63].

Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1, at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

As Pembroke J repeated in Sung v Malaxos [2015] NSWSC 186, at [5]:

In Stott v Cook (1960) 33 ALJR 447, at 453-454, Taylor J, although dissenting in his determination of the case, observed that the Court did not have a mandate to re-work a Will according to its own notions of fairness. His Honour added:

Dixon CJ, in Pontifical Society for the Propagation of the Faith v Scales, at 19, commented upon the consideration that was to be given to the deceased’s wishes:

In Vigolo v Bostin, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

Of the freedom of testamentary disposition, in Grey v Harrison, Callaway JA also wrote, at 366:

In Ilott v The Blue Cross [2017] 2 WLR 979; [2017] UKSC 17, at [47], the UK Supreme Court wrote:

In Goodsell v Wellington [2011] NSWSC 1232, at [108], I also noted that:

In Sgro v Thompson [2017] NSWCA 326, at [83], White JA (McColl JA agreeing) adhered to the view that he had expressed in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522, at [127], namely, that:

His Honour added, at [86]:

In Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114, at [51], White JA, although partially disagreeing with the majority, wrote that he “did not say that wherever it can be seen that the deceased was capable of giving due consideration as to the adequacy of the provision in the will for a claimant and did so, that that was determinative of a claim for provision” and at [54], that “[t]he issue is how freedom of testamentary disposition is to be factored into an assessment of whether the provision made by the testator is adequate for the proper maintenance, education or advancement in life of a claimant. The determination of the adequacy of the provision is a matter for the court and it is to be determined as at the time the court is considering the application rather than as at the time the testator made a will or at his or her death”.

Clearly, in this case, the deceased decided to discriminate between her children and make substantially greater provision for Margo who had forgone wages, worked on the farm and help build it up, particularly in the last 12 years or so of the deceased’s life.

Of course, in considering the question, the nature and content of what is adequate provision for the proper maintenance, education and advancement in life of an applicant, is not fixed or static. Rather, it is a flexible concept, the measure of which should be adapted to conform with what is considered to be right and proper according to contemporary accepted community standards: Pontifical Society for the Propagation of the Faith v Scales at 19; Walker v Walker (Supreme Court (NSW), Young J, 17 May 1996, unrep); Stern v Sekers; Sekers v Sekers [2010] NSWSC 59.

In all cases under the Act, what is adequate and proper provision is necessarily fact specific: Sgro v Thompson, per White JA, at [67].

The size of the estate is a consideration in determining an application for provision. However, its size does not justify the Court in re-writing the deceased’s Will in accordance with its own ideas of justice and fairness: Bowyer v Wood (2007) 99 SASR 190; [2007] SASC 327, at [41]; Borebor v Keane (2013) 11 ASTLR 96; [2013] VSC 35, at [67].

In this case, the estate is of reasonably large value. In Anasson v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep), Young J (as his Honour then was) said at 20-21:

In Vigolo v Bostin, at [51], it was noted that “in the case of large estates, provision can be made for the well-to-do”.

In McCann v Ward & Burgess [2012] VSC 63, Hargrave J, at [32], wrote:

(In this case, it is to be noted that Margo submits that there will be serious prejudice to her rights if a substantial family provision order is made in favour of Susan.)

Yet, it must also be remembered, as McLaughlin AsJ (as his Honour then was) stated in Lumb v McMillan [2007] NSWSC 386, at [26]:

The size of the estate is but one factor, among many, which the Act requires the Court to take into account, in the evaluation suggested by s 60(2) of the Act, wherever it is relevant. However, the Court only alters a will as far as is necessary to provide adequately for the proper maintenance, education and advancement in life of the applicant. (I have, of course, taken into account the other factors referred to in s 60(2) also.)

In relation to the claims, each being a claim for provision by an adult child, I have set out the following principles in many other cases, which are also useful to remember:

A very similar statement of these principles, which I set out in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275, at [111], was cited with approval in Chapple v Wilcox [2014] NSWCA 392, at [21]; and at [65]-[67]; and was referred to, with no apparent disapproval (although in that appeal there was no challenge to the correctness of those principles), in Smith v Johnson [2015] NSWCA 297, at [62].

The role of the Court is not “to address wounded feelings or salve the pain of disappointed expectations” that the applicant might feel: Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep).

In Foley v Ellis, at [88], Sackville AJA noted that Singer v Berghouse “strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act”.

Basten JA, at [3], noted that the state of satisfaction "depends upon a multi-faceted evaluative judgment". In Grey v Harrison [1997] 2 VR 359, Callaway JA, at 366-367, observed:

The nature of the estate may also be a relevant factor in the Court’s consideration. Yet, the Act does not direct the formal retention in the family of one form of property (such as a farm) against another. If a farm must be sold to provide for the proper maintenance, education or advancement in life of the applicant, that may be unavoidable. There are no special rules which apply to such cases.

However, the fact that two farming properties comprise the most valuable assets of the deceased’s estate does give rise to considerations going to the ways and means by which any order for provision could be given effect. There is an overlap between the factual realities and the determination which the Court must make. If there is a way of providing for such provision, without causing the sale of the “Arakoon” or “Hylands”, then it should be considered.

In White v Chambers (Supreme Court (WA), Franklin J, 27 February 1985, unrep), Franklin J stated, at 17:

In Bryant v Bryant (Supreme Court (NSW), Needham J, 24 July 1986, unrep), Needham J stated, at 8:

In Davey v Fairhead (1996) ACL Rep 395 WA 7, Walsh J stated, at [22]-[24]:

I have borne in mind Margo’s desire to retain both properties. However, I have come to the view, bearing in mind Susan’s claim for a family provision order, and the possibility of costs being paid out of the estate, that this may not be possible. However, some reasonable opportunity should be given to Margo to satisfy the order for provision that should be made in Susan’s favour.

As long ago as 1980, in White v Barron, at 440, Stephen J wrote:

As I have stated in many cases (see, for example, Bowditch v NSW Trustee and Guardian), I do not intend what I have described as “principles” or “general principles” to be elevated into rules of law, propositions of universal application, or rigid formulae. Nor do I wish to suggest that the jurisdiction should be unduly confined, or the discretion should be constrained, by statements of principle found in dicta in other decisions, or by preconceptions and predispositions. Decisions of the past do not, and cannot, put any fetters on the discretionary power, which is left largely unfettered. I do not intend what is provided as a guide to be turned into a tyrant.

It is necessary for the Court, in each case, after having had regard to the matters that the Act requires it to consider, to determine what is adequate and proper in all the circumstances of the particular case. In addition, in each case, a close consideration of the facts is necessary in order to determine whether the basis for a family provision order has been established. Every case is different and must be decided on its own facts. As Lindsay J wrote in Verzar v Verzar [2012] NSWSC 1380, at [131]:

The importance of the qualifications to which I have referred have been stressed in Chapple v Wilcox, by Basten JA, at [18]-[20], and by Barrett JA, at [66]-[67]; in Burke v Burke (No 2) [2015] NSWCA 195, at [84]-[85]; in Yee v Yee [2017] NSWCA 305, at [172]; and very recently, by White JA, in Steinmetz v Shannon, at [37]. They must be remembered.

In my opinion, the deceased, in all the circumstances to which I have referred, failed to make adequate provision for the proper maintenance and support of Susan in the 2012 Will. In this regard, I have borne in mind all the circumstances, including, amongst other things, Susan’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between Susan and the deceased, and the relationship between the deceased and Margo, the only other person with a legitimate claim upon the deceased’s bounty.

I have also made an assessment of what is the proper level of maintenance and advancement in life bearing in mind all of the circumstances. In this regard, I consider that a wise and just will-maker would have made greater provision for the future needs of Susan taking into account that she has not very much by way of her own property.

The use of the word “proper” means that attention may be given, in deciding whether adequate provision has been made, to such matters as what used to be called the “station in life” of the applicant and the expectations to which that has given rise and the fact that she was throughout her adult life independent upon the deceased for any ongoing financial support.

I have also taken into account, as I may do pursuant to s 60(2)(e) of the Act, since Susan is cohabiting with Andrew, his financial circumstances. I also bear in mind that, in the event of a breakdown of their relationship, she has rights upon which she can rely (being a financial resource).

In reaching these conclusions, I have also borne in mind the deceased’s wish, reflected in the 2012 Will, to provide “Arakoon” and “Hylands” to Margo, based upon, amongst other things, her significant sacrifices, services and contribution made directly and indirectly, financially and non-financially, towards the deceased. It is clear, as set out above, that her desire was to make provision to preserve “Arakoon” and “Hylands” as an indivisible entity, even if it provided a significantly greater share of her estate to Margo. The fact that she discriminated between her four daughters in this way is not, however, a determinative factor. She was entitled to do so.

I turn next to give consideration to the provision that should be provided for Susan.

Senior counsel for Susan submitted that the maximum amount by way of provision that should be ordered was $1,000,000: Tcpt, 4 March 2021, p 397(29-32). Senior counsel for Margo submitted that the maximum amount by way of order for provision for Susan was $810,000: Tcpt, 3 March 2021, p 391(13-16). Both agreed that the minimum figure to be awarded to Susan was about $440,000: Tcpt, 4 March 2021, p 397(29).

The parties agreed that if provision were made for Susan, it should be in lieu of her entitlement under the deceased’s Will. In this way, Margo can determine how best to satisfy the order for provision as she will effectively be entitled to the whole of the estate after satisfying the order for provision made for Susan and the agreement that she has reached with Belinda and Emma.

The determination of the quantum of the provision to be made is not an arithmetical exercise, based on fiscal micrology, but involves the exercise of discretion within the confines of the Act and having regard to the numerous factors, both tangible and intangible, for which the Act provides and to which I have referred. In reaching the quantum of provision, I have considered what are said to be the “needs” of Susan. I do not accept that all of what she described as “needs” should, after the death of the deceased, fall to be met from her estate. As I have written, I consider that some of those “needs” are not within the concept of “adequate and proper” provision. That concept cannot extend to any, or every, thing which it would be desirable for the applicant to have. In this regard, what is “proper” provision, should be informed, at least in part, by the scope of an applicant’s dependency upon the deceased during her, or his, adult life. Susan is an adult fully emancipated daughter of the deceased who had lived her own life and made her own lifestyle decisions without financial assistance from the deceased for many years prior to the deceased’s death.

Ultimately, I am of the view that Susan requires a lump sum that should enable her to be, at least partially, financially independent of Andrew and which lump sum she can use, as she sees fit, for the exigencies, or vicissitudes, of life.

Taking into account the submissions made with respect to Susan’s circumstances and all of the circumstances of Margo, even though Susan could not be regarded as being in necessitous circumstances, in my view, and in lieu of the provision made for her in the 2012 Will, she should receive a lump sum of $750,000 out of the estate of the deceased. Such a sum is capable of providing Susan with a financial buffer, whilst at the same time giving due consideration to the competing claim of Margo.

The parties should also consider other matters to which I shall refer below. I shall allow them the opportunity to consider these reasons and provide short minutes of order which should include an order:

When delivering the reasons for judgment, I shall adjourn the matter to enable the parties to agree on the orders for costs and to provide the form of orders to me. If they cannot be agreed within 10 days thereafter, the matter shall be re-listed to enable the determination of any outstanding issues.