Mackinlay v Holliday

These proceedings concern the estate of the late Roderick Mackinlay (“the deceased”), who died on 19 October 2020 at the age of 91.

The controversy is centred upon the validity of a codicil. The codicil was executed by the deceased on 22 October 2018. It is expressed to be a codicil to a will made by the deceased on 5 April 2007. There is no dispute that the will is valid. However, in relation to the codicil, there are issues as to whether the deceased had testamentary capacity and knew and approved of its contents at the time it was signed.

The will made on 5 April 2007 provides for the deceased’s spouse, Beverley Mackinlay, and the deceased’s son, Derek Mackinlay, to be the executors of the estate. Derek Mackinlay is the plaintiff. By his Statement of Claim filed on 3 February 2022, he seeks a grant of probate in solemn form in respect of the will. The named defendant is Brian Holliday, an accountant who had provided accountancy services to the deceased for more than 20 years. The codicil in question provides for Brian Holliday to be the sole executor of the estate. By his Defence and his Cross-Claim, each of which were filed on 8 April 2022, Brian Holliday asserts that parts of the will were revoked or altered by the codicil. He seeks a grant of probate in solemn form in respect of the will and the codicil.

By his Amended Defence to Cross-Claim, filed on 12 August 2022, Derek Mackinlay:

The suspicious circumstances alleged by Derek Mackinlay concern the involvement of Brian Holliday in the procuring of the codicil. The codicil would, if admitted to probate, make Brian Holliday the sole executor of the estate. He would thereby become the holder of powers in respect of certain trusts, and the holder of shares in certain trustee companies. Moreover, the will provides that, in certain circumstances, the executor is entitled to charge professional fees. However, the codicil would not operate to make him the beneficiary of any testamentary gift.

The will made by the deceased on 5 April 2007 is a lengthy and rather complicated instrument. The will, which runs to 28 pages, is divided into three parts, being Part A (General Provisions), Part B (Executors’ Instructions and Discretionary Powers), and Part C (Administrative Provisions).

The principal features of Part A are:

In the events that happened, the deceased was survived by his spouse, Mrs Beverley Mackinlay. She died on 22 July 2022 at the age of 89. She therefore satisfied the Gift Conditions in respect of cl 9.2 of the will.

The codicil was signed by the deceased on 22 October 2018 in the presence of Mr Nicoll Mason-Jones, solicitor, and Ms Jill Mason-Jones. Jill Mason-Jones is the wife of Nicoll Mason-Jones. The codicil is relevantly in the following terms:

In brief, the codicil would effect the following changes:

In order for a will, or a codicil to a will, to be a valid testamentary instrument, it is necessary that the testator had testamentary capacity at the time the will or codicil was made, and further that the testator knew and approved the contents of the will or codicil at that time. The general principles in this regard were recently summarised by Kirk JA (with whom Bell CJ and Griffiths AJA agreed) in Lim v Lim [2023] NSWCA 84 at [7]-[12] in the following terms:

The point is made that the simpler the will the more easily it might be shown that the testator had the requisite capacity and knew and approved the contents of the will. I would add that, depending upon the circumstances, it may be easier to establish these matters in relation to a codicil that operates to amend a will in only limited respects (see d’Apice v Gutkovich – Estate of Abraham (No 2) [2010] NSWSC 1333 at [96]-[99] per White J, as his Honour then was; see also Croft v Sanders [2019] NSWCA 303 at [126] per White JA; Gibbons v Wright (1954) 91 CLR 423 at 438 per Dixon CJ, Kitto and Taylor JJ).

The standard of proof is of course the civil standard, the balance of probabilities, as embodied in s 140 of the Evidence Act 1995 (NSW). In deciding whether that standard is satisfied in any particular case, the Court must take into account certain matters, including the gravity of the matters alleged in the case.

The concepts of testamentary capacity and knowledge and approval are distinct, but in an evidentiary sense they are linked. Where these issues co-exist, much of the evidence will be relevant to both (see Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [128] per Leeming JA).

Before turning to the evidence that was directed to the issues of testamentary capacity and knowledge and approval, it is desirable to refer to the salient evidence concerning the instructions for, and the preparation and eventual execution of, the codicil. In this regard, the relevant witnesses are the defendant, Brian Holliday, and Mr Mason-Jones.

Mr Holliday deposed that he was the accountant for the deceased and his wife from about July 1997 until the deceased’s death on 19 October 2020. He deposed that for many years the couple had lived together in a house in Warrabri Place, West Pymble, before Mrs Mackinlay was admitted to the dementia specific unit at the Adventist Aged Care facility in Wahroonga in about June 2018. Mr Holliday deposed that he is a long-term resident of West Pymble, living about a five minute walk from the Mackinlays’ home.

Mr Holliday deposed:

Mr Holliday deposed that from about July 2018 (after Mrs Mackinlay went into fulltime care) until late 2019, he saw the deceased about two or three times a week.

Mr Holliday further deposed:

The reference to “Nick” in the above conversation may be understood to be a reference to Nicoll Mason-Jones. Mr Holliday deposed that he and the deceased had both known Mr Mason-Jones for a number of years, and that Mr Mason-Jones was also a long-term resident of West Pymble. There is evidence that Mr Mason-Jones had acted as the solicitor for the deceased on at least two separate occasions. The reference in the above conversation to “the Blakes” would seem to be a reference to Barrie Blake and Shirley Blake, who are referred to in cl 10.5 of the deceased’s will of 5 April 2007.

On 10 July 2018, Mr Holliday sent an email to Mr Mason-Jones which included the following:

On 13 July 2018, Mr Mason-Jones sent an email to Mr Holliday which included the following:

On 14 July 2018, Mr Mason-Jones sent a further email to Mr Holliday which included the following:

On 16 July 2018, Mr Mason-Jones sent another email to Mr Holliday. This email is concerned with the proposed power of attorney in favour of Mr Holliday, and contains a suggested 10-step course of action towards the execution of a power of attorney at the conference that was then scheduled to occur on 18 July 2018. A draft power of attorney was attached to the email.

It appears, from a file note made by Mr Mason-Jones, that he delivered a letter to the deceased’s home on 16 July 2018 that included, at least, the draft power of attorney and a copy of the email that had been sent that day to Mr Holliday.

On 17 July 2018, Mr Holliday sent an email to Mr Mason-Jones in relation to the draft power of attorney. Mr Mason-Jones responded by email sent later that day. That email included the following:

On 19 July 2018, a meeting was held at the deceased’s home, attended by the deceased, Mr Mason-Jones and Mr Holliday. Mr Mason-Jones gave evidence that the meeting (or conference, as he described it) was mainly concerned with the explanation he had given to the deceased about the proposed power of attorney. The proposed power of attorney had by that time been re-drafted to provide for the power to be given to Mr Holliday, but with Derek Mackinlay to be substituted as the attorney in certain circumstances. Mr Mason-Jones deposed that the conference went for about 55 minutes. His affidavit contains an account of what was said by him and by the deceased in relation to the power of attorney. The course of the meeting is also the subject of a reasonably extensive file note made by Mr Mason-Jones.

In relation to the deceased’s will, it appears that, at some stage during the course of the 19 July 2018 meeting, Mr Holliday handed Mr Mason-Jones a letter dated 17 July 2018 from the deceased to Mr Mason-Jones. The letter was signed by the deceased, but had been prepared by Mr Holliday. The letter (which also refers to the power of attorney) included the following in respect of the deceased’s will:

A handwritten note apparently made by Mr Mason-Jones on an “agenda/checklist” for the conference, suggests that there is likely to have been some discussion at the meeting about having Mr Holliday (or Mr Holliday and Mr Lambert) appointed as executor. Further, Mr Mason-Jones’ file note of the meeting includes the following:

Mr Mason-Jones deposed:

It appears that Mr Mason-Jones read the deceased’s will on 23 July 2018. Further, it appears that he made unsuccessful attempts to contact the solicitor who drew the 2007 will (Mr Fitzpatrick) with a view to referring the deceased to that solicitor. In cross-examination, Mr Mason-Jones said he did that as a matter of courtesy, rather than because that solicitor had more expertise in dealing with wills containing testamentary trusts.

On about 24 July 2018, Mr Mason-Jones prepared a draft codicil. On the same day, he prepared a letter to the deceased. It is a lengthy letter, but its importance is such that it should be set out in full. The letter provides:

It appears that Mr Mason-Jones provided the letter to the deceased on 25 July 2018. A copy of the letter was also provided to Mr Holliday.

On 2 August 2018, Mr Mason-Jones spoke to the deceased on the telephone about the letter. Mr Mason-Jones deposed:

Mr Mason-Jones’ file note records, inter alia, that the deceased “seemed very vague” about the letter. The note records that the deceased said that he would “give it more attention”. The note also records that the deceased said that “people with dementia can sometimes live a very long time”.

It seems that on about 7 August 2018, Mr Holliday provided certain information to Mr Mason-Jones about an application for guardianship that had been made in the NSW Civil and Administrative Tribunal (“the Tribunal”) by Adventist Aged Care in relation to Mrs Mackinlay. It further seems that on 10 August 2018, Mr Mason-Jones delivered a letter to the deceased, dated 9 August 2018, which included the following:

The letter also referred to issues in relation to the Tribunal matter, which had been listed for a hearing to take place in late September 2018. Those proceedings will be referred to later in these reasons in relation to the issue of the deceased’s mental capacity.

It appears that Mr Mason-Jones unsuccessfully attempted to contact the deceased by telephone on 16 August 2018 to discuss the codicil.

On 16 August 2018, Mr Holliday sent an email to Mr Mason-Jones. The email included the following:

The matter seems to have stalled for a period whilst the Tribunal proceedings were concluded. Mr Mason-Jones deposed that in October 2018 he received a copy of the decision of the Tribunal that had been given following a hearing that took place on 28 September 2018. The reasons for decision contain references to a report of a Dr Achar, who stated, in effect, that the deceased had capacity to make decisions for his wife. Mr Mason-Jones deposed that he then arranged a meeting with the deceased to sign the codicil.

On 19 October 2018, Mr Mason-Jones again made attempts to contact the deceased by telephone, but without success. Mr Mason-Jones became concerned about the deceased’s wellbeing.

However, at about 9:49am on 22 October 2018, Mr Mason-Jones was able to speak to the deceased on the telephone to remind him that he would be coming around to his home and would take him to his office (at Mr Mason-Jones’ home) for the signing of the codicil. Mr Mason-Jones’ file note suggests that the deceased said that he was ready to see Mr Mason-Jones whenever he came.

The file note further indicates that Mr Mason-Jones arrived at the deceased’s home at approximately 10:15am.

Mr Mason-Jones deposed:

In an earlier affidavit, Mr Mason-Jones deposed that, prior to the signing of the codicil, “we read through it together”.

Mr Mason-Jones’ file note in respect of the events of 22 October 2018 includes the following:

In cross-examination, Mr Mason-Jones accepted that, on the question of the reading of the codicil, his file note was more likely to be accurate than his later recollections.

There is no dispute that the codicil was properly signed and attested in accordance with the requirements of the Succession Act 2006 (NSW).

As noted earlier, the defendant, as the propounder of the codicil, bears the onus of proving that the deceased had testamentary capacity in respect of the codicil at the time it was executed. In that regard, the defendant relied upon evidence given by himself and by Mr Mason-Jones, as well as documentary evidence, including medical records, that concern the deceased. The plaintiff relied upon evidence given by himself and others (including friends of the deceased and a general medical practitioner who treated the deceased), as well as some of the documentary evidence that concerns the deceased.

The defendant submitted that the Court should be satisfied on the whole of the evidence that the deceased had the requisite capacity at the time he executed the codicil. The plaintiff submitted that the evidence as a whole was sufficient to throw a doubt on the testator’s capacity, and that the evidence adduced by the defendant was not sufficient to establish, to the satisfaction of the Court, that the deceased had the requisite capacity at the relevant time.

I set out below a summary of what appears, from the submissions of the parties, to be the salient aspects of the evidence.

Reference has already been made to evidence given by the defendant about his relationship with the deceased as his accountant, and also as a friend. The defendant gave further evidence of his observations of the deceased over the years, including evidence to the effect that:

The defendant deposed that there were brief periods in about the last three years of the deceased’s life, when he seemed to have some cognitive impairment. The defendant said that the worst occasion was when the deceased was admitted to hospital in 2017 following a fall at home. The defendant deposed that after his discharge from hospital, it took the deceased a further few weeks to “get back to his usually mentally sharp self”. The defendant suggested that if the deceased became dehydrated it would affect his cognitive ability, for example, when he was admitted to Wollongong Hospital in November 2018. The defendant deposed that, until his “final decline from about September 2020”, the deceased always recovered from the brief periods when he may have been cognitively impaired. The defendant deposed that until about September 2020, he had no concerns about the deceased’s ability to understand the nature and effect of the decisions he made.

The evidence given by Mr Mason-Jones was essentially confined to his account of his dealings with the deceased in the period from July 2018 to October 2018, as referred to above. He deposed that he had no cause for concern or any doubts regarding the deceased’s mental capacity or his ability to understand the nature and effect of the codicil he signed. Whilst Mr Mason-Jones was not directly challenged in cross-examination about that statement, he was pressed in various ways in cross-examination, particularly concerning the adequacy of his explanation to the deceased of the codicil.

The plaintiff deposed that, from about 2015, he observed both his parents to experience a significant decline in their cognitive abilities. He gave evidence of a number of examples of incidents or conduct that demonstrates, in his view, such a decline. These examples include:

The plaintiff also referred in his affidavit to various medical records, notably in relation to the deceased’s fall in August 2017 and his subsequent admission to Royal North Shore Hospital, his admission to Wollongong Hospital in November 2018, and his admission to Royal North Shore Hospital in June 2019.

Ms Pharo, the plaintiff’s partner, gave evidence to generally similar effect to that given by the plaintiff. She gave evidence about the 2015 incident involving the loss of passports and hire car, and about the deceased having accidents whilst driving. She also gave evidence about the deceased wearing old and worn clothing, and being unshaven. She deposed that the deceased “started saying rude and offensive things in his later years” and gave an example of an incident in about 2017 or 2018 when the deceased visited the couple at their home on the Central Coast. Ms Pharo also gave evidence about the poor state of cleanliness of the deceased’s West Pymble home.

Mr John Ellis was a longstanding friend of the deceased’s. He deposed that from about 2010, he and a mutual friend, Mr John Fox, would occasionally meet for lunch with the deceased. Mr Ellis deposed that on two or three occasions the deceased failed to attend as arranged, and on one occasion explained that he had got lost on the way. Mr Ellis also gave evidence to the effect that, from about 2012, the deceased repeated himself in conversations, was focused upon “the old times”, and was becoming forgetful. Mr Ellis also gave evidence of the deceased driving in an erratic manner on an occasion when he drove Mr Fox and himself to a restaurant in Gladesville.

Mr Fox deposed that in about October 2018 the deceased failed to turn up for a lunch at Mr Ellis’ house in Beacon Hill, and later explained that he had got lost on the way. Mr Fox gave evidence that the lunch was “rescheduled” to occur at the Belrose Hotel on 24 October 2018, but the deceased again did not arrive, explaining that he instead went to the Glen Street Centre (also known as Glenrose Village, Belrose) by mistake. Mr Fox gave evidence of an occasion when the deceased drove him and Mr Ellis to a restaurant in Gladesville. Mr Fox was unclear in cross-examination as to the date of this occasion, but seemed to think that it was sometime after 24 October 2018. He also accepted that it could have occurred in about October 2017. Mr Fox deposed that the deceased drove too fast and appeared “unsteady in his lane”.

Mr Fox gave evidence of a conversation with the deceased at the Gladesville lunch about the deceased being on a restricted driver’s licence. Mr Fox deposed that the conversation included him asking the deceased to spell “world” backwards, and that the deceased appeared unable to do so.

Mr Steele Dawson, a friend of the plaintiff, deposed that in November 2018 he went with the plaintiff to visit the plaintiff’s parents at their West Pymble home. He deposed that the deceased looked frail, was wearing unironed clothes, and was not properly shaved. He deposed that the home was “in a bad state”, particularly the bathroom, and that there were unwashed dishes in the sink and dirty clothes in the living room. Mr Dawson deposed that he thought the deceased had “memory issues”, as he repeated a number of times statements about transferring assets to his son.

Dr William Storrs is a doctor who has been in general practice since 1985. He treated the deceased for many years, until March 2018. He deposed:

Dr Storrs referred in his affidavit to various medical records in relation to the deceased, made by himself or by the hospitals to which the deceased was admitted in 2017. Those records include the results of a number of cognitive function tests undertaken by the deceased (Mini Mental State Examination or “MMSE” tests and Montreal Cognitive Assessment or “MOCA” tests). Dr Storrs gave evidence about the prescribing of Aricept (or Donepezil) in relation to the deceased’s dementia.

Dr Storrs also gave evidence of numerous interactions with the deceased about the need for him to cease driving, and the deceased’s continued failure to do so.

In cross-examination, Dr Storrs accepted that, from August/September 2017 to late October 2017, the deceased’s cognition had improved “with time and the Aricept”. However, Dr Storrs noted that MMSE tests were “a very basic assessment”. He stated that the deceased’s functioning in his dealings with him, and his thinking processes, were deteriorating. He further stated that the main point of contention concerned the deceased’s driving.

A letter issued by Dr Storrs dated 7 December 2020, which is likely to have been provided to the plaintiff, stated:

As far as the documentary evidence is concerned, it largely consists of medical records in relation to the deceased. A large number of records were admitted into evidence. It was accepted that the parties would, by way of submissions (or chronology), identify the particular documents or types of documents that were to be relied upon. I have considered the documents so identified, but in the interests of brevity, I will refer only to some of the documents that were given some prominence by the parties and which appear to have a material bearing upon the issues of testamentary capacity and knowledge and approval. I note that a number of the documents referred to by the parties contain statements that are apparently contradicted or qualified, to at least some extent, by statements contained in other documents. For that and other reasons, I have endeavoured to read and assess the medical records in their overall context, mindful of not placing too much weight on particular documents or particular statements in documents.

There does not appear to be any documentary evidence of any significant cognitive impairment in the deceased prior to his fall at home and subsequent admission to hospital in August 2017. It is clear that the fall left the deceased lying on the floor of his home for many hours. He was taken by ambulance to Royal North Shore Hospital on 22 August 2017. He evidently presented in a confused state “unable to perform mini-mentals”. However, a MMSE test was performed on 29 August 2017 in which he scored 20/30. An occupational therapist noted on that day that there was a high chance that the deceased was in a delirium. On 1 September 2017, the occupational therapist noted that the deceased was “still in delirium”. The deceased was discharged from the hospital on about 6 September 2017, to Hornsby Hospital, for rehabilitation. The discharge referral notes included the following:

Whilst in Hornsby Hospital, the deceased was prescribed Aricept “for delirium”. The deceased scored 15/30 on a MOCA test administered on 19 September 2017, indicating moderate cognitive impairment, although it was also noted that there was some distraction from neighbouring beds. On 21 September 2017, it was noted that Aricept appeared to be working as the deceased’s “thoughts/cognition is improving”. A note made on 25 September 2017 stated that the deceased’s cognition had been declining for the past 8 years, that he was no longer confused or [in] delirium, and that he was at “baseline” with a “cognitive decline background”. The deceased was discharged from Hornsby Hospital on about 27 September 2017. The discharge referral notes recorded that the deceased was “likely to have underlying dementia”. The discharge plan included “not to drive due to cognitive decline”.

It appears that a referral was made to Hornsby Ku-ring-gai Community Health to provide further assistance to the Mackinlays in their home. An Aged Care Assessment carried out in October 2017 assessed the deceased as eligible to receive a Home Care Package – Level 3 (which has a priority level of medium/high). A MOCA test was conducted as part of the assessment. The deceased scored 16/30 on that test.

Following his discharge from hospital, the deceased’s next consultation with Dr Storrs occurred on 5 October 2017. It seems that there was discussion about the deceased not being able (or allowed) to drive, and about him continuing to take Aricept. Dr Storrs issued a prescription for its equivalent, Donepezil, on 14 October 2017 and again on 11 November 2017. The topic of the deceased’s driving, and the need to have a driving test, was a recurring item throughout the numerous consultations that occurred in the period from October 2017 to March 2018. It is clear that the deceased continued to drive, despite receiving advice and warnings to the contrary. There is evidence that in late 2017 the deceased’s car hit a gutter, causing a tyre to be punctured. There is also evidence of a minor collision occurring in April 2018 whilst the deceased was driving back from the Blue Mountains.

Dr Storrs administered MMSE tests upon the deceased on 13 October 2017 (score – 21/30) and 28 October 2017 (score – 25/30). These tests seem to have been undertaken in connection with the deceased obtaining an assessment of his driving ability. An Occupational Therapy Driver Assessment Report dated 8 December 2017 recommended that the deceased maintain his Class C licence, but subject to conditions that he only drive within a 5 km radius of his home between 10:00am and 3:00pm. The report noted that the deceased demonstrated “attention/concentration difficulties” and “required verbal prompting to remain on the topic of conversation”.

In June 2018, Mrs Mackinlay became a permanent resident of the Adventist Aged Care home in Wahroonga. Some of the records in respect of her admission contain statements that bear upon the deceased’s mental condition. For example, the notes of Dr Pennington refer to the deceased being a supportive carer for his wife but having his own difficulties “secondary to cognitive impairment too”.

Reference was earlier made to an application brought by Adventist Aged Care for guardianship in relation to Mrs Mackinlay. The application was made on about 6 July 2018. That event seems to have been a precursor to the steps taken from July 2018 in respect of the power of attorney and the codicil executed by the deceased (see the email sent by the defendant to Mr Mason-Jones on 10 July 2018 referred to above at [21]). The application form contains statements to the effect that the deceased appeared to have short-term memory loss, as shown by his forgetting to bring in more clothes for his wife, and by leaving the car engine running when he left his car in the car park. There is also a reference to “? cognitive decline”.

In the course of the application, a report was prepared by Dr Achar (who appears to have been training in the speciality of old age psychiatry). Dr Achar’s report, dated 17 August 2018, includes the following:

On 28 September 2018, the Tribunal dismissed the application for guardianship. The reasons of the Tribunal included the following:

The documentary evidence extended into the period after the codicil was executed on 22 October 2018, and thus provides evidence of certain events that occurred in that period.

One such event was the deceased’s admission to Wollongong Hospital on 13 November 2018. The records show that he was brought into the hospital by ambulance after being found sitting in a gutter on the side of a road. It seems that he had driven to Wollongong to try to find a friend he knew, but failed to do so. The deceased then went looking on foot, became lost, and sat down. A hospital note records “? confusion” and also “IMP – likely normal age behaviour, no features of delirium”.

On 7 December 2018, Dr Anne Cornford, who was now the deceased’s treating general practitioner, performed an MMSE test upon him. He scored 27/30. I note that one of his failings concerned the (presumably backwards) spelling of “world”. Dr Cornford noted that the score of 27 indicated that no significant cognitive impairment had been identified. It seems that Dr Cornford recommended a relaxation in the deceased’s licence conditions so that he could drive within a 30 km radius of his home.

On 13 June 2019, the deceased was admitted to Royal North Shore Hospital. He had been brought in by ambulance after a friend had called, being concerned for the deceased’s “cognition and increased confusion”. The friend, who is recorded as knowing the deceased very well, apparently reported a gradual decline in memory and cognition over the past 2-3 months, “coming to a peak today” when the deceased arrived at the friend’s house in a confused state and unable to park or reverse his car. It is further recorded that on the previous day the deceased collected Mrs Mackinlay from the nursing home but failed to return her as planned. (I note in passing that it was put to the defendant, and he denied, that he was the friend who called the ambulance. I accept the defendant’s denial. The hospital records suggest that the friend was a ”retired pharmacist”, and Mr Holliday’s name does not appear in the records in this regard until the Discharge Summary.)

The deceased remained in the hospital until 20 June 2019. He scored 18/30 in a MOCA test conducted on 15 June 2019. The Discharge Summary includes a primary diagnosis of “Progressive dementia requiring placement”. The deceased was placed in respite care at the Adventist Aged Care home in Wahroonga. The evidence is not clear as to how long he remained in respite care, but it seems, based on the defendant’s evidence, that he remained in such care until about the end of August 2019. However, the deceased became a permanent resident of the Adventist Aged Care home in late November 2019.

By December 2019, the deceased had been diagnosed with multiple myeloma. It is apparent that at the time of the diagnosis, Dr Pennington was concerned as to whether the deceased had the capacity to consent to treatment. There is evidence that treatment was subsequently discussed with the deceased. On 7 February 2020, the deceased said that he never expected to get to 90 years of age and would prefer not to be treated. Dr Pennington noted that the deceased had cognitive decline and “it is difficult for him to decide for himself”.

On 26 February 2020, Dr Pennington wrote a letter of certification in the following terms:

An application for guardianship in respect of the deceased was made in March 2020 by the defendant. It seems that the application was made on the basis of a concern that the plaintiff, who held an enduring guardianship, was not making required care decisions on behalf of his father. However, the guardianship application was adjourned on 10 June 2020 to 9 July 2020, and was withdrawn, and dismissed, within that period.

The deceased spent a short time in Hornsby Hospital in July 2020 before returning to the nursing home. He was thereafter cared for in accordance with a palliative care plan.

The deceased died at the nursing home on 19 October 2020.

I have already referred to the applicable principles in relation to questions of testamentary capacity (see at [11]-[14] above). The legal onus of proof on the issue rests with the defendant as the party propounding the testamentary instrument, namely, the codicil dated 22 October 2018.

It seems that if the codicil is rational on its face, and is shown to have been duly executed, there is a presumption that the testator was mentally competent (see Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45] per Meagher JA). However, such a presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity.

There is no dispute that the codicil was duly executed. Further, it is my view that, despite the infelicitous drafting that is apparent in various respects, the codicil may be regarded as rational on its face. Read with the will it seeks to amend, it can be seen to effect the changes that are broadly described above at [10]. The changes can be fairly considered to be rational, even if there could be debate about their wisdom, appropriateness, or desirability. There is thus a presumption that the deceased was mentally competent at the time he signed the codicil.

A question then arises as to whether the presumption is displaced by circumstances which raise a doubt as to the existence of testamentary capacity. In my opinion, at least some of the evidence adduced by the plaintiff, including the evidence about the deceased failing to turn up to lunches as arranged in or around October 2018, and the evidence concerning his driving after October 2017, raise a sufficient doubt to displace the presumption.

Accordingly, the question whether the deceased had testamentary capacity in relation to the codicil falls to be determined upon a consideration of the whole of the relevant evidence, without resort to any dispositive presumptions. The defendant has the onus of establishing, on the balance of probabilities, that the deceased had that capacity at the relevant time (see Worth v Clasohm (1952) 86 CLR 439 at 453 per Dixon CJ, Webb and Kitto JJ).

In considering the question of testamentary capacity it is, of course, necessary to focus upon the particular testamentary instrument at hand and the effect the instrument would have. As was stated by the High Court in Gibbons v Wright (supra) at 438:

I have already referred to the notion that the simpler a will or codicil, the more easily it may be shown that the testator had the requisite capacity and knew and approved its contents (see at [12] above). Here, the parties were at odds as to how simple, or how complex, the codicil should be regarded. The defendant contended for simplicity, whilst the plaintiff contended for complexity. However, broadly describing the codicil by reference to such notions is of limited utility, and risks missing the point that the focus of the inquiry is upon the effect of the instrument.

The effect of the codicil in the present case, or the changes it would bring about, may be broadly summarised in the terms set out above at [10] which are, for convenience, repeated below:

It can therefore be seen that the codicil would:

The test for testamentary capacity must be applied in the light of the above (see Croft v Sanders (supra) at [126] per White JA). The present case is not one of a testator making a fresh will, or (as in Gray v Hart [2012] NSWSC 1435 at [349]-[350]) entirely revoking a will. Neither is it a case (such as found in d’Apice v Gutkovich – Estate of Abraham (No 2) (supra)) of a testator merely revoking a particular gift. As far as gifts are concerned, the codicil would amend the gift to Mrs Mackinlay under cl 9.2, and would substitute new beneficiaries of the “reserve” gifts under cl 10. The codicil would otherwise change the identity of the executor, and extend the duration of the (new) executor’s rights to hold the powers of appointment and shares the subject of cl 8.

In these circumstances, it would not be appropriate to slavishly seek to apply the test as formulated by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 which, in any case, is not to be treated as if it were a legislative text (see Mekhail v Hana; Mekail v Hana (supra) at [164] per Leeming JA). It is necessary to answer the question of testamentary capacity by reference to a codicil that would have the particular effects described above. It is necessary to consider whether the deceased had the capacity to understand the nature of the act of making a codicil, and the effects the codicil would have, including insofar as it would affect the gifts provided for under the existing will, and the administration of the estate.

In approaching the question, I have endeavoured to consider the entirety of the relevant evidence, with a particular focus upon those aspects that tend to shed light on the testator’s capacity in the period from July 2018 to 22 October 2018, during which time the codicil was prepared and eventually signed. The assessment of the evidence was undertaken without the benefit of any expert medical evidence as neither party sought to adduce such evidence.

For the following reasons, I am satisfied, on the balance of probabilities, that the deceased had testamentary capacity in respect of the codicil when he signed it on 22 October 2018.

I have reached that conclusion even though I consider that, during the period from July 2018 to 22 October 2018, the deceased was suffering from a degree of cognitive impairment or deficit, likely due to progressive dementia. In my opinion, the evidence of the events of that period, in particular the testimony of the defendant and Mr Mason-Jones, coupled with the related documentary evidence, is sufficient to establish that the deceased had the capacity to understand the nature of the act of making a codicil and the effects the codicil would have.

In submissions, the plaintiff made attacks upon the credit and truthfulness of both the defendant and Mr Mason-Jones as witnesses. I do not accept those submissions. I consider each of them to be a satisfactory witness who appeared to be attempting to give accurate evidence to the best of his ability.

In relation to the defendant, the plaintiff submitted that he deliberately failed to include in his affidavit relevant documents that showed his involvement in the procuring of the codicil. However, it is plain from the affidavit that the defendant had drafted the letter of instructions dated 17 July 2018 for the deceased to sign. I do not think that the defendant made any attempt to downplay his involvement. The defendant was criticised for failing to explain why there were two signed versions of the letter of instructions, but the point goes nowhere as the content of each version is the same. In addition, it was not put to the defendant that the deceased did not sign the letter of instructions, as deposed to in his affidavit. The defendant was also criticised in relation to his evidence about Dr Pennington’s letter of 26 February 2020. There was inconsistency between his answers concerning his knowledge of the letter, but I do not think that the defendant was being evasive or less than candid in that regard. Finally, it was submitted that the defendant’s evidence, that the deceased seemed to suffer only brief episodes of cognitive impairment in the last three years of his life, was inconsistent with the medical records. However, I do not think that his evidence in that regard was other than a genuine assessment of the deceased’s overall mental condition. I would add that, in relation to all of the lay witnesses, I placed more weight upon their particular observations of the deceased than any conclusions or assessments they made of his cognitive abilities. Overall, whilst the defendant displayed a touch of irritation during cross-examination, I think that he was a satisfactory witness who was attempting to give accurate evidence to the best of his ability.

In relation to Mr Mason-Jones, the plaintiff submitted that he had deliberately failed to include in his affidavit relevant documents that showed the defendant’s involvement in the procuring of the codicil. Again, Mr Mason-Jones’ affidavit makes it clear that his initial instructions in relation to the deceased’s will came from a letter that the defendant told him he had drafted himself. There was no attempt to conceal the defendant’s involvement. Mr Mason-Jones’ affidavit did not annex a number of additional documents that were on his file (and were produced pursuant to a notice), but his failure in that regard was not in my view sinister. The plaintiff criticised Mr Mason-Jones for not accepting that the defendant had been involved in giving instructions to him. It was apparent that Mr Mason-Jones was at pains to make clear that his client was the deceased, not the defendant, such that any instructions were those of the deceased. Mr Mason-Jones displayed some defensiveness in that regard, but I do not consider that he was being evasive or lacking in candour. After all, his stated position reflected the reality that the deceased was the client and the defendant was providing assistance to the deceased in his dealings with his solicitor. Mr Mason-Jones was also criticised for failing to explain why there were two signed versions of the letter of instructions but, again, the point goes nowhere as the content of each version is the same. Mr Mason-Jones evidently had difficulty recalling some of the details of the events of 2018, but in my view he too was a satisfactory witness who was attempting to give accurate evidence to the best of his ability.

The existence of a degree of cognitive impairment or deficit in the relevant period is supported by the medical records concerning the deceased’s condition from the time of his hospital admissions in 2017, together with many of the observations of the deceased made by the witnesses called in the plaintiff’s case, including Dr Storrs.

The Royal North Shore Hospital records suggest that in September 2017 the deceased had a cognitive deficit, albeit not a significant one. The Hornsby Hospital notes at that time suggest that the deceased had recovered to a "baseline” level that involved cognitive decline, to a degree that was unspecified other than that it was said to be of sufficient magnitude to require the deceased to no longer drive. The Hornsby Hospital records also indicate that the deceased was likely to have underlying dementia.

The MMSE and MOCA tests carried out on the deceased are suggestive of mild to moderate cognitive decline, and seem to indicate some improvement in the deceased’s condition following his discharge from hospital in 2017. Dr Storrs accepted that, but cautioned against placing too much weight upon the results of such tests (see also Bear v Bear; Jordan v Bear [2022] NSWSC 1687 at [141]-[145] per Meek J). I note that in December 2018 (6-7 weeks after the codicil was signed) the deceased scored 27/30 on an MMSE test, with some of the marks lost due to an inability to spell “world” backwards – an inability that was manifest on a few occasions, including when Mr Fox confronted the deceased with the question at the lunch in Gladesville.

The observations of the plaintiff’s witnesses clearly show that the deceased suffered from memory lapses and episodes of confusion, and I am prepared to accept that there was some deterioration in the deceased’s general functioning. That deterioration was shown in a decline in standards of dress and presentation, and cleanliness of the West Pymble home. However, having regard to the evidence of the defendant, who appears to have had as much or more regular contact with the deceased than anyone throughout the relevant time, I do not think that the decline in function in the period from September 2017 to October 2018 was a marked one. I note that the plaintiff sent an email on 4 July 2018 (in relation to the obtaining of home care assistance for his parents) that contained a statement that his father was “still OK” and could drive and cook. Further, it is difficult to draw any firm conclusions about the extent to which the decline in function may have been attributable to cognitive impairment as opposed to other reasons. It may be recalled that the defendant gave evidence, which was not directly challenged, about the deceased being an avid reader of books and the newspaper. There was documentary evidence that indicated that the deceased continued his reading of newspapers until the early months of 2020.

The plaintiff placed some emphasis on the evidence concerning the deceased’s continued driving despite being forbidden to do so. It was submitted that this demonstrated a lack of insight that was consistent with significantly impaired cognitive function. However, I do not think that too much weight should be placed on that evidence as an indicator of cognitive function. The evidence certainly painted a picture of the deceased being careless with his driving, and being involved in a number of relatively minor accidents. It seems that he may have scraped a neighbour’s parked car on no fewer than four separate occasions, and there is evidence of minor collisions occurring on a trip to the Central Coast and coming back from a trip to the Blue Mountains. It is clear that the deceased was fond of driving. The plaintiff deposed that his father “always loved driving”. I gained the clear impression from the evidence that the deceased was well aware of the limitations and restrictions that had been placed upon him in that regard. It is clear that the deceased refused to accept those limitations and restrictions, and thus deliberately flouted the rules. I note, for example, that the Wollongong Hospital records suggest that the deceased was aware in November 2018 that he had transgressed when he drove all the way to Wollongong. The conduct of the deceased in relation to his driving was no doubt cavalier, and dangerous, but I do not think it demonstrates a significantly impaired cognitive function.

Further, as pointed out by the defendant in submissions, the report of Dr Achar dated 17 August 2018 records interactions with the deceased that suggest a degree of insight and mental processing on his part in relation to the issue of his wife’s ongoing care. I note that Dr Achar was of the view that the deceased had the capacity to make decisions for his wife. However, as pointed out by the plaintiff in submissions, a capacity to make such decisions (for example as to care and medical needs) is not to be equated with testamentary capacity.

In addition to his evidence about the deceased’s reading, the defendant gave evidence (again not directly challenged) of a conversation with the deceased in about March 2018 in which the deceased spoke of selling shares, and conversations with the deceased in early to mid-2018 about the deceased’s will. The latter conversations (referred to above at [19]) suggest that the deceased had been thinking about his will, and had taken the trouble to consider it, to the point of suggesting that some changes should be made.

It can be inferred from the email sent by the defendant to Mr Mason-Jones on 10 July 2018 that the defendant had a conversation with the deceased which included discussion about what to do following Mrs Mackinlay’s recent admission to the nursing home. It is apparent that the discussion included the topics of a new power of attorney for the deceased, and changes to his will.

The emails sent by Mr Mason-Jones to the defendant on 13 July 2018 and 14 July 2018 indicate that Mr Mason-Jones and the deceased had spoken on at least three occasions in relation to Mr Mason-Jones acting in the matter and in relation to a conference to be held at the deceased’s home.

By 16 July 2018, Mr Mason-Jones had delivered a letter to the deceased’s home, as well as a draft power of attorney and a copy of an email he had already sent to the defendant. I infer from Mr Mason-Jones’ email to the defendant on 17 July 2018 that the deceased told Mr Mason-Jones that he had read the letter that had been delivered to him.

On 17 July 2018, the deceased signed a letter (addressed to Mr Mason-Jones) that had been prepared for him by the defendant. The defendant deposed that the letter set out his understanding of the deceased’s instructions and that he met with the deceased “to discuss the letter and ensure that it accurately reflected his instructions”. That evidence is expressed in only general terms, but it was not challenged in cross-examination. I am prepared to accept that the letter did accord with instructions given by the deceased and, further, that the deceased had that understanding at the time he signed it. The letter was evidently intended to comprise instructions to be given to Mr Mason-Jones.

The letter of instructions concerned a new power of attorney as well as a new will. The instructions for the new will included a clear instruction that the defendant would be the executor of the estate (unless unwilling or unable to act). There is also an instruction to “remove” the gifts to charities, and remove references to two individuals. The letter also includes a summary of the deceased’s assets, noting that his investments, and the investments of a superannuation trust, were managed and reviewed by a financial planner, Mr Peter Lambert. It is likely that the deceased had at least a general understanding of the nature and extent of his assets. The letter of instructions was handed to Mr Mason-Jones at the meeting that was held at the deceased’s home on 19 July 2018.

I accept, as essentially accurate, the evidence given by Mr Mason-Jones (in his affidavit of 26 June 2022) about the 19 July 2018 meeting. In particular, I accept that in the course of a meeting that lasted about 55 minutes, conversations occurred, involving the deceased, to the effect of those deposed to by Mr Mason-Jones in paragraphs 11 to 14 (concerning the power of attorney) and paragraphs 16 to 17 (concerning the will). The content of those paragraphs is largely supported by the terms of his file note which is likely to have been made not long after the meeting, when the meeting was fresh in Mr Mason-Jones’ mind.

The terms of the conversations suggest that the deceased understood what was being said at the meeting. It is noteworthy that, in relation to the will, it was the deceased himself who suggested that a codicil could make the changes he wanted made to his will. I am comfortably satisfied that the deceased had the capacity to understand the nature of the act of making a codicil. In my view, he in fact held an understanding, throughout, that making a codicil would have the effect of making changes to his existing will.

On 25 July 2018, Mr Mason-Jones provided a lengthy letter (dated 24 July 2018) to the deceased. The letter was apparently accompanied by other documents, including the letter of instructions, a copy of the existing will, and a draft codicil. The evidence is not clear as to the form of the draft codicil that was attached. However, I think it was likely to have been either in the unamended form of the document in Exhibit C at page 4/3174, or the form of the document in Exhibit C at page 4/3142. Either way, the codicil provided for cl 3.1 of the will to be amended so that instead of “my spouse and my son or the survivor of them”, “Brian Holliday” would be appointed as executor. That was what was provided for in the codicil as ultimately executed. The draft codicil also provided for amendments to cll 8.1, 8.2 and 9.2 in the same manner as the codicil as ultimately executed. However, the draft codicil was different from the codicil as ultimately executed insofar as the changes to cl 10 are concerned.

The letter provided to the deceased refers at some length to an “additional change”, apparently suggested by Mr Mason-Jones. This change was a suggested change to the cl 9.2 gift of the balance of the estate to Mrs Mackinlay. It was proposed that instead of an absolute gift, the gift would become a gift to her for life (referred to in the letter as a “life interest” or a “life estate”). The letter also included some commentary about the proposed changes to cl 8 of the will.

It is likely that the deceased had read the letter by 2 August 2018. The deceased had a conversation on that day with Mr Mason-Jones, who telephoned him to discuss the codicil and the letter. I accept the evidence given by Mr Mason-Jones at paragraphs 20 to 22 of his 26 June 2022 affidavit in that regard. Mr Mason-Jones asked the deceased about the codicil and the deceased said that it “looks pretty right” but he wanted to “give it more attention”. I have not overlooked the reference in Mr Mason-Jones’ file note to the fact that the deceased seemed “very vague” about the letter. Even so, the likelihood remains that the deceased read the letter, which seems to be the first occasion upon which the notion of a gift for life was raised. Mr Mason-Jones’ file note records that the conversation on 2 August 2018 included the topic of the gift to Mrs Mackinlay for her life. The note also records statements made by the deceased about his wife possibly outliving him, and people with dementia sometimes living for a very long time. Those statements suggest that he understood that how long Mrs Mackinlay might live was relevant to the changes to the will that were then proposed.

On 10 August 2018, Mr Mason-Jones provided a further letter (dated 9 August 2018) to the deceased.

The defendant sent an email to Mr Mason-Jones on 16 August 2018. The email suggests that, by that time, the defendant and the deceased had “worked through” each of the proposed changes to the will. The defendant refers to working through “each point in your proposed revocation and changes”. That should be taken as a reference to the draft codicil. I accept, based on the terms of the email, that there had been such a working through of each of the proposed changes set out in the draft codicil. The detail of that is not the subject of any affidavit evidence from the defendant. However, the process appears to have generated a new proposal in respect of cl 10 of the will. The gift under cl 10 was now proposed to go only to five named charities, equally. I infer that the deceased was content with the other proposed changes. The new changes to cl 10 were set out in the defendant’s email to Mr Mason-Jones.

As noted earlier, the matter seems then to have stalled for a period whilst the Tribunal proceedings were concluded. Dr Achar spoke to the deceased in connection with those proceedings on about 17 August 2018. Dr Achar’s report is referred to above at [75]. As submitted by the defendant, the quotes in the report that are attributable to the deceased indicate a degree of insight and mental processing on his part in relation to the issue of his wife’s ongoing care. I note further that the deceased gave evidence at the Tribunal hearing on 28 September 2018. He said, and the Tribunal accepted, that he was willing and able to undertake the role of the person responsible for giving consent to medical and dental treatment for Mrs Mackinlay.

I accept that Mr Mason-Jones thereafter arranged a meeting with the deceased to sign the codicil. It is not clear when that occurred, but it seems that a meeting was scheduled for 22 October 2018. It appears, from a file note made by Mr Mason-Jones, that on the morning of 22 October 2018, Mr Mason-Jones telephoned the deceased to remind him that he would be coming around that morning. The file note reveals that Mr Mason-Jones had some concern that the deceased might forget about the meeting. However, it seems that the deceased told Mr Mason-Jones during the telephone call that he was ready to see him whenever he came.

Subject to one matter, I accept, as essentially accurate, the evidence given by Mr Mason-Jones about the events of 22 October 2018 (see at [43] and [44] above). The matter to which I refer concerns the location of the meeting at which the explanation of the codicil occurred. At one point, the affidavit suggests that the meeting occurred in Mr Mason-Jones’ home office, whereas his file note indicates that it occurred at the deceased’s home, with the signing of the codicil taking place later in Mr Mason-Jones’ home office. The file note is more likely to be correct.

I think that, as deposed to by Mr Mason-Jones, he provided an explanation of the codicil “and what it did”, and the deceased read at least part of the text of the codicil. (The form of codicil had by this time been re-drafted to take into account the new changes to cl 10.) However, having regard to the answers given by Mr Mason-Jones in cross-examination on this topic, I am not satisfied that he and the deceased read through the codicil together (as Mr Mason-Jones had deposed in an earlier affidavit).

As for the content of the explanation given by Mr Mason-Jones, it is clear from the file note that he spoke about the defendant becoming the executor, and further stated that the defendant replacing Mrs Mackinlay and the plaintiff as executors would entail the defendant exercising powers that Mrs Mackinlay and the plaintiff would otherwise have. The deceased indicated his assent to that, describing the defendant as “a safe pair of hands”. It is also clear from the file note that Mr Mason-Jones spoke about the gifts to the five listed charities. He explained that those gifts would occur if neither Mrs Mackinlay or the plaintiff were available to take any benefit under the will. Any explanation beyond those two topics is not referred to in the file note as part of what is described as “the essence of my explanation” of the codicil. Nevertheless, in the context of a meeting that seems to have occupied approximately an hour (including travelling time between the two locations), and in circumstances where Mr Mason-Jones spoke about Mrs Mackinlay and the plaintiff taking benefits under the will, it seems to me likely that Mr Mason-Jones would have at least mentioned that the codicil would change Mrs Mackinlay’s gift under cl 9.2 to a gift to her for life. It is unlikely that he would not have mentioned that matter, which had been his own idea, and the subject of his letter of 24 July 2018 as well as some discussion with the deceased on 2 August 2018.

As for the reading of the codicil by the deceased, the file note suggests that he at least read through the list of charities, and I accept that the deceased told Mr Mason-Jones that he was “checking the list of charities”.

The evidence referred to above, including the evidence of the interactions the deceased had with the defendant and Mr Mason-Jones, leads me to conclude that, notwithstanding that the deceased was suffering from a degree of cognitive impairment or deficit, he had the capacity on 22 October 2018 to understand the nature of the act of making a codicil and had the capacity to understand the effects the codicil would have. Put in terms of the statement of the High Court in Gibbons v Wright (supra), I think that the deceased had the capacity to understand the nature of the transaction when it is explained.

The effects that the codicil would have are summarised above at [94]-[95]. I am satisfied that the deceased was capable of understanding the nature of each of the changes that would be effected by the codicil if those changes were explained to him. It seems likely that the deceased in fact understood the nature of the changes concerning the appointment of the defendant as executor, the gift to Mrs Mackinlay being a gift to her for life, and the “reserve” gifts to the five listed charities. Moreover, notwithstanding some underlying complexity surrounding the subject matter of cl 8 of the will (namely, powers of appointment and shares in trustee companies), I think that the deceased was capable of understanding the nature of the changes that would be effected to cl 8 of the will had those changes been explained to him. The essence of those changes is reasonably straightforward: whereas the will provided that the powers and shares were held by the executor only whilst Mrs Mackinlay was alive, the codicil would operate so that they could be held by the executor even after her death.

In reaching the above conclusion as to testamentary capacity, I have taken into account, but afforded little weight to, Mr Mason-Jones’ evidence that he had no cause for concern or any doubts regarding the deceased’s mental capacity or his ability to understand the nature and effect of the codicil he was signing. I do not doubt that Mr Mason-Jones genuinely held that view, based on his dealings with the deceased in relation to both the power of attorney signed in July 2018 and the codicil signed in October 2018. However, I would not place significant weight on that view in circumstances where it was not shown that Mr Mason-Jones had considerable experience in dealing with elderly clients and their testamentary wishes (cf Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] per Macfarlan JA; see also Bailey v Bailey (1924) 34 CLR 558 at 572 per Isaacs J).

I should refer to one further matter. The plaintiff submitted that the defendant had failed to call an important witness he had the ability to call, namely, Mrs Jill Mason-Jones. It was submitted that she could have given evidence of her observations of and conversations with the deceased on 22 October 2018. The plaintiff submitted that, in those circumstances, it should be inferred that Mrs Mason-Jones’ evidence would not have assisted the defendant’s case, and that this should be borne in mind in determining whether the defendant had satisfied his onus of proof in relation to testamentary capacity and knowledge and approval. I have not overlooked these submissions. However, even if the inference was drawn that the evidence of Mrs Mason-Jones would not have assisted the defendant’s case, I would still be satisfied that the deceased had testamentary capacity. As far as the events of 22 October 2018 are concerned, I accept Mr Mason-Jones’ evidence as essentially accurate. Moreover, to the limited extent that Mr Mason-Jones gave evidence of interactions with the deceased whilst Mrs Mason-Jones was present, his evidence was entirely unchallenged. That evidence was to the effect that there was some conversation with the deceased about matters other than the codicil, followed by the signing of the codicil. Despite the absence of Mrs Mason-Jones as a witness, I see no reason not to accept Mr Mason-Jones’ unchallenged evidence on these matters. I also note that there is no issue that the codicil was properly signed and attested in accordance with the requirements of the Succession Act.

I turn now to consider the issue of knowledge and approval.

Some of the applicable principles are referred to above at [11]-[14]. I should, in addition, refer to Tobin v Ezekiel (supra) at [46], where Meagher JA stated:

Testamentary capacity and due execution have been established in the present case. Accordingly, the presumption arises that the deceased knew and approved of the contents of the codicil at the time he signed it. The plaintiff seeks to displace that presumption by alleging that circumstances exist that raise a real suspicion or doubt as to whether the codicil expresses the mind of the deceased.

The circumstances that are said to raise such a suspicion are particularised as:

However, no attempt was made at the hearing to establish that Mr Holliday had acted in any way improperly in relation to the codicil, including by not accurately setting out the deceased’s instructions regarding changes to his will. Mr Holliday was asked some questions about the letter dated 17 July 2018 he had prepared and which was signed by the deceased, but it was not put to Mr Holliday that the content of the letter was in any way not a true reflection of the deceased’s wishes.

The focus at the hearing was rather upon the deceased’s cognitive impairment and a lack of a “proper and robust explanation” from a solicitor concerning the effect of the codicil. Reference was also made in submissions to the delay in preparing the final version of the codicil, and Mr Holliday standing to benefit from the codicil via the payment of professional fees for acting in the role of executor.

There was no application to amend, and no agreement by the parties to any departure from the pleadings. Nonetheless, assuming in the plaintiff’s favour that it is open to him to run a case of the nature described above, and further assuming that the circumstances relied upon are sufficient to displace the presumption that would otherwise arise, I am satisfied on the whole of the evidence that the deceased knew the contents of the codicil and appreciated the effect of what he was doing, so as to conclude that the codicil contains the real intention and reflects the true will of the deceased. Again, I am so satisfied notwithstanding that Mrs Mason-Jones was not called as a witness.

I have found that the deceased in fact had an understanding, throughout, that making a codicil would have the effect of making changes to his existing will. I have also found that, by 16 August 2018, the deceased and Mr Holliday had worked through each of the proposed changes to the will that were set out in the draft codicil, and that the deceased was content with the proposed changes, other than in respect of cl 10 which became the subject of a new proposed change. Finally, I have found that, on 22 October 2018, it is likely that the deceased in fact understood the nature of the changes concerning the appointment of the defendant as executor, the gift to Mrs Mackinlay being a gift to her for life, and the “reserve” gifts to the five listed charities.

The position is less clear in relation to the proposed changes to cl 8 of the will. Here, I am satisfied that, as a result of at least Mr Mason-Jones’ letter of 24 July 2018 and the process of working through each of the proposed changes with Mr Holliday by 16 August 2018, the deceased was likely aware that the powers and shares the subject of cl 8, that would be held by the executor, were to be changed. It is likely that the deceased was also aware that the change was in some way related to how long his wife remained alive, as the references to her being alive were to be deleted from the will. However, I would not be prepared to go so far as to find it likely that the deceased understood the proposed change to mean that the executor could hold the powers and shares even after his wife’s death.

The position thus seems to be that whilst the deceased had an understanding that the codicil provided for changes to be made in respect of the holding of the powers and shares by the executor, his understanding of the precise nature and extent of the change was imperfect or incomplete.

I was initially attracted to the view that, in this respect, it could not be said that the deceased knew and approved of the contents of the codicil. However, it is sufficient that the testator knows and approves the gravamen of a will or codicil (see Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [187] per Leeming JA). Bearing that principle in mind, I have come to the view that, despite some deficiency in the deceased’s understanding of the amendments to cl 8 of the will, he should be regarded as knowing and approving the contents of the codicil at the time he signed it.

The deceased was aware of the contents of the codicil, and aware that the codicil would operate to amend his will in various respects. In all bar one of those respects, he understood the nature of the change. In the other respect, he understood in general terms that there was to be a change to the executor’s holding of the powers and shares the subject of cl 8, but lacked an understanding of the precise nature and extent of the change. There was no attempt to conceal the existence of the proposed changes to cl 8 of the will. To my mind, the above circumstances are sufficient to conclude that the codicil contains the real intention, and reflects the true will, of the deceased (see Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [472] per Robb J). In other words, I am satisfied that the signed codicil expresses the mind of the deceased.

Before leaving this topic, I should note that no questions were put to Mr Holliday concerning any benefit he might receive as a result of the codicil, whether by way of professional fees or otherwise. Further, I do not discern anything untoward in the delay in the preparation of the final version of the codicil. As I have said, the codicil matter seems to have stalled during the period in which the Tribunal proceedings were on foot, and was resumed fairly soon after the conclusion of those proceedings.

I should state that had I concluded that the deceased did not know and approve of the contents of the codicil insofar as the amendments to cl 8 of the will are concerned, I would have severed that part of the codicil (namely, paragraphs (2) to (5)), leaving the balance of the codicil intact, to be admitted to probate. I think that such a severance would have been available in accordance with the principles set forth in Osborne v Smith (1960) 105 CLR 153 at 159, as discussed by Leeming JA in Lewis v Lewis (supra) at [189]-[208].

I have concluded that the deceased had testamentary capacity in respect of the codicil at the time he signed it on 22 October 2018. I have also concluded that the deceased knew and approved of the contents of the codicil at that time. In these circumstances, orders should be made in accordance with the Cross-Claim, granting probate in solemn form to Mr Holliday in respect of the deceased’s will dated 5 April 2007 and the codicil to that will dated 22 October 2018.

The plaintiff’s Statement of Claim must be dismissed.

I will give the parties an opportunity to make submissions on costs. To that end, directions will be made for the filing and serving of brief written submissions, with a view to that question being determined on the papers.