Application by Craig-Bridges; The Estate of Ella Minnie Lillian Bush; The Estate of Ella Minnie Lillian Bush v NSW Trustee & Guardian

1. [1]

   Ella Minnie Lillian Bush died on 31 January 2015. She was 90.

2. [2]

   Mrs Bush’s estate comprised real estate she owned in Wee Waa and Yamba and cash. The total value of her estate is in the order of $1 million.

3. [3]

   Mrs Bush’s husband, Mr Samuel Bush, died twenty years earlier, on 4 February 1995.

4. [4]

   Mr and Mrs Bush had two sons. Graham died on 29 March 1970. He had no children.

5. [5]

   Ronald (known as Ronny) died on 24 April 2011. Ronny had five daughters, including the plaintiff, Ms Helene Craig-Bridges. Helene is now 43. Helene and her four younger sisters – Kim, Wendy, Jennifer-Lee and Jillian – were Mrs Bush’s closest relatives at the date she died.

6. [6]

   Mrs Bush made a number of wills.

7. [7]

   The oldest is dated 12 March 1990. By that will, Mrs Bush appointed her husband as executor and sole beneficiary and provided that if (as happened) Mr Bush did not survive her, and if (as happened) Ronny did not survive her, her estate should go to Ronny’s children (Helene and her sisters) equally.

8. [8]

   The next will Mrs Bush made is dated 8 June 2011. By then, Ronny had died. By that will, Mrs Bush appointed Helene and Kim as executors, and gave her estate to Helene and her sisters equally.

9. [9]

   On 22 November 2011, 12 November 2012 and 21 February 2013, Mrs Bush made wills leaving the whole of her estate equally to the Cancer Council of New South Wales and Wee Waa Anglican Church. I will call these “the Impugned Wills”.

10. [10]

    The only relevant difference between the three Impugned Wills is the identity of the executor.

11. [11]

    Mrs Bush’s will of 22 November 2011 appointed her brother, Cecil (known as Cec) as executor. Cec died nine years earlier, in 2002.

12. [12]

    By her will of 12 November 2012, the deceased appointed her brother Edward (known as Ted) to be her executor. Ted died about a month later, on 7 December 2012.

13. [13]

    By her final will the deceased appointed the NSW Trustee & Guardian (“the Trustee”) as her executor.

14. [14]

    Mr Hugh Palmer, a solicitor of Narrabri, prepared each of the Impugned Wills.

15. [15]

    Helene contends that Mrs Bush lacked testamentary capacity when she executed each of the Impugned Wills.

16. [16]

    Helene seeks:

17. [17]

    The effect of any of these orders would be the same; namely that Helene and her sisters would share equally in Mrs Bush’s estate.

18. [18]

    There was no suggestion in the evidence that Mrs Bush lacked capacity when she made her 1990 will. Thus, the question of Mrs Bush dying intestate does not, as a practical matter, arise.

19. [19]

    The Trustee, by a cross-claim, seeks:

20. [20]

    The effect of any of these orders will be the same; namely that the Cancer Council of NSW and the Wee Waa Anglican Church would share equally in Mrs Bush’s estate.

21. [21]

    In the event that the Trustee’s claim is made out in any one of these ways, Helene seeks provision under s 59 of the Succession Act 2006 (NSW) (“the Act”).

Decision

1. [22]

   In my opinion, Mrs Bush had testamentary capacity on the occasions she executed each of the Impugned Wills.

2. [23]

   In those circumstances, provision should be made for Helene in an amount equal to one fifth of Mrs Bush’s estate.

Mrs Bush’s testamentary capacity

1. [24]

   Both Helene and the Trustee adduced expert evidence as to Mrs Bush’s testamentary capacity.

2. [25]

   Helene adduced evidence from Associate Professor Tuly Rosenfeld, a consultant geriatrician and physician. The Trustee called Dr Wayne Reid, a clinical neuropsychologist. Neither expert had treated Mrs Bush. Both examined the available medical records concerning Mrs Bush and produced reports setting out their conclusions concerning Mrs Bush’s cognitive state at the date of each of the Impugned Wills. I heard their evidence concurrently.

3. [26]

   Both experts agreed that there was no reason to doubt Mrs Bush’s testamentary capacity at the date of her June 2011 will. That will was made two months after Ronny died and, as I have said, provided for her estate to go to Ronny’s five children (including Helene), then Mrs Bush’s closest surviving relatives.

4. [27]

   The debate before me focussed on Mrs Bush’s capacity thereafter to make the Impugned Wills, in particular the will made a little over five months later, on 22 November 2011.

5. [28]

   Neither Helene nor the Trustee adduced evidence from any of Mrs Bush’s treating doctors, although reports from some of them were in evidence.

Principles

1. [29]

   The Trustee, as the party propounding the Impugned Wills, has the onus of proving them to be Mrs Bush’s wills: for example, see Powell J, as his Honour then was, in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704F.

2. [30]

   The Trustee must show, on the balance of probabilities, that Mrs Bush knew of the contents of the Impugned Wills, appreciated the effect of what she was doing “so that it can be said that the will contains [her] real intention and reflects [her] true will” (Tobin v Ezekial (2012) 83 NSWLR 757; NSWCA 285 at [48] per Meagher JA (Basten and Campbell JJA agreeing).

3. [31]

   As I have mentioned, each of the Impugned Wills was prepared by the solicitor, Mr Palmer. Each was duly executed and thus sufficiently “made” and “acknowledged” in the formal sense as required by the authorities: see Re Hodges at 705C-D. The Trustee has thus, to that extent, established a prima facie case of regularity: Re Hodges at 704G.

4. [32]

   The question is whether other circumstances show that, despite the formal regularity of the Impugned Wills, Mrs Bush lacked the capacity to make them.

5. [33]

   The test for whether Mrs Bush had testamentary capacity to make all or any of the Impugned Wills is that described by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549. Did Mrs Bush:

   1. (1)

      Understand the nature of the act of making a will and its effects?

   2. (2)

      Understand the extent of the property of which she was disposing? And

   3. (3)

      Comprehend and appreciate the claims to which she ought give effect?

6. [34]

   So far as concerns the third of those matters, Cockburn CJ said that, in order to have capacity:

7. [35]

   The question is whether any illness of Mrs Bush “so affected [her] mental faculties as to make them unequal to the task of disposing of [her] property” (per Isaacs J in Bailey v Bailey (1924) 34 CLR 558; HCA 21 at 572).

8. [36]

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

9. [37]

   In relation to how this passage should be read, White J said in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226, at [65]:

The lay observations of Mrs Bush

1. [38]

   The Trustee adduced evidence from a number of people who had day to day dealings with Mrs Bush in her later years, and who said that, so far as they could tell, Mrs Bush appeared to be able to have ordinary conversations and showed no sign of confusion or cognitive decline.

2. [39]

   Mrs Maisie Kelly (who is now 90) met Mrs Bush in primary school. She became Mrs Bush’s sister-in-law, as Mr Samuel Bush was her brother.

3. [40]

   On 21 November 2011 Mrs Bush appointed Mrs Kelly as her enduring guardian.

4. [41]

   Mrs Kelly gave evidence that:

5. [42]

   Mrs Kelly’s daughter-in-law, Mrs Robyn Kelly, gave evidence that between 2001 and 2012 she was a member of and the secretary of the Wee Waa Cancer Support Group. She said that Mrs Bush was a member of that group and an active participant in it and that:

6. [43]

   Mrs Bush was a member of the Wee Waa parish of the Anglican Church.

7. [44]

   Between 2006 and 2012, Reverend Simon Carter was the vicar of the Anglican Parish. Rev Carter said he regularly spoke to parishioners after church. He said that it was his practice to look for any cause for concern.

8. [45]

   He said:

9. [46]

   The Rev Carter’s successor as vicar at the Wee Waa Anglican Church was Rev Bernard Gabbott.

10. [47]

    Between 2010 and 2011, when Rev Gabbott was assistant vicar, he visited Mrs Bush regularly. He said:

11. [48]

    But Rev Gabbott said that once he took over as vicar in charge at Wee Waa his pastoral visiting declined and that he saw Mrs Bush less regularly but that:

12. [49]

    These observations are, of course, relevant to the question of Mrs Bush’s testamentary capacity.

13. [50]

    However, as Professor Rosenfeld said:

14. [51]

    Thus, these lay observations cannot be conclusive and must be considered in the context of the available medical evidence and other evidence concerning the manner in which Mrs Bush behaved during this period.

Events between June and November 2011

1. [52]

   Very shortly after she made her June 2011 will, Mrs Bush commenced to manifest symptoms suggestive of some diminution in her cognitive function.

2. [53]

   On 8 July 2011, Helene and her sister Wendy visited Mrs Bush for her birthday. On that occasion, although Mrs Bush had known Wendy all of Wendy’s life, she failed to recognise her, or at least, confused her with another “Wendy”.

3. [54]

   However, this event occurred only a month after Mrs Bush executed the 8 June 2011 will, which, it is common ground, she had capacity to make. There is no medical evidence pointing to any deterioration in Mrs Bush’s cognitive state during that short period.

4. [55]

   A month later, in August 2011, Helene married her second husband, Adrian Craig. Mrs Bush attended the wedding. Helene gave evidence that:

5. [56]

   However, Mrs Bush had not seen Helene’s mother for many years, and photographs tendered by Mr Armfield, who appeared for the Trustee, show that Helene’s mother’s appearance had, unsurprisingly, changed somewhat in the intervening years.

6. [57]

   Between September and December 2001 Mrs Bush made statements which suggest some confusion. Thus Helene said that Mrs Bush said words to the effect “someone is breaking into the house to steal my keys” and “I cannot find my keys” and “he has hid them from me” and that “I’ve lost my handbag, someone must of [sic] stolen it” and “I had to climb in through the window because someone stole the keys out of my bag when I went down the street” and “my money keeps going missing. I’m sure I had more than that”.

7. [58]

   Helene said that, on one occasion, when she visited Mrs Bush at around this time and after her father, Ronny, had died, Mrs Bush said:

The 22 November 2011 will

1. [59]

   Helene said that in November 2011 she had this conversation with Mrs Bush:

2. [60]

   “Aunty Maisie” is Mrs Kelly. Dianne is Helene’s cousin.

3. [61]

   It appears that Mrs Bush was referring to a visit she made to WA Baxter & Co solicitors in October 2011 (that is, a little earlier than Helene recalled) as, on 19 October 2011, WA Baxter & Co wrote to Mr Palmer as follows:

4. [62]

   As presaged by this letter, Mrs Bush did consult with Mr Palmer on 26 October 2011.

5. [63]

   Evidently, by then, Mrs Bush had decided to leave her estate equally to the Cancer Council and the Anglican Church.

6. [64]

   Thus, Mr Palmer’s note of his meeting with Mrs Bush reads:

7. [65]

   The note makes clear that on 26 October 2011, consistently with the advice WA Baxter & Co evidently gave Mrs Bush, Mr Palmer took instructions from Mrs Bush about making a will and about appointing Mrs Kelly as her enduring guardian.

8. [66]

   On 21 November 2011, Mrs Bush executed an Appointment of Enduring Guardian, prepared by Mr Palmer, in favour of Mrs Kelly.

9. [67]

   The following day, 22 November 2011, Mrs Bush executed the first of the Impugned Wills.

10. [68]

    The will is in simple form (see Bailey v Bailey at 570-571). It is a little over a page long. It appoints Mrs Bush’s brother Cec as executor (I return to this below), leaves the whole estate equally to the two charities and enumerates four powers for the executor (to which I will also return).

11. [69]

    The will represented a significant departure from Mrs Bush’s earlier wills, under which she had left her estate to her closest surviving relatives; effectively her son Ronny in the case of the March 1990 will; and, after Ronny’s death in April 2011, to her grandchildren (Ronny’s daughters, including Helene) in the case of the June 2011 will.

12. [70]

    There is no direct evidence explaining why Mrs Bush made this change. There is, for example, no evidence of conversations in which Mrs Bush stated why she had decided to leave all of her estate to the two charities, rather than her grandchildren.

13. [71]

    Mrs Kelly recalled that Mrs Bush said, not long after Ronny died in April 2011, that “Helene wouldn’t let her have much to do with [Ronny’s] funeral”. A year later, in December 2012, Mrs Kelly told the Guardianship Tribunal (at a hearing after which the Tribunal confirmed Mrs Kelly’s appointment as Mrs Bush’s enduring guardian) in Mrs Bush’s presence that Mrs Bush “believed that her grandchildren had treated her badly regarding the assets of her late son after his death”. But Mrs Kelly did not say that Mrs Bush had said anything to the effect that these were matters that caused her to leave her estate to the two charities, rather than to her grandchildren.

14. [72]

    On the limited evidence before me, I am not able to come to any conclusion as to why Mrs Bush had this change of heart. The decision does seem a harsh one, from Helene’s point of view. Helene remained in close and regular contact with Ms Bush throughout her life. As I discuss below, in the context of Helene’s claim for provision, Helene lived with Mr and Mrs Bush during her teenage years and developed a relationship with Mrs Bush that Helene described as being akin to a mother-daughter relationship. There is no suggestion, apart from what I have set out at [71], that they fell out. However, the mere fact that a testator’s decision to exclude particular beneficiaries might appear harsh or unreasonable does not, itself, necessarily bespeak lack of testamentary capacity: see for example, Re Griffith at 289 per Gleeson CJ.

15. [73]

    I see no reason to conclude that the bequest to the two charities was not Mrs Bush’s own idea. Mrs Bush’s choice of the Cancer Council and her local Church was understandable. Both her husband and son, Ronny, had died of lung cancer and she was a regular member of the congregation at the Wee Waa Anglican Church. Mrs Bush’s choice of these two charities certainly was not itself irrational or bespeaking of lack of cognitive function.

16. [74]

    And the instructions she gave Mr Palmer were simple: half to each charity.

17. [75]

    One problem is that Mrs Bush nominated her brother, Cec, to be her executor. As I have mentioned, Cec died in October 2002, some nine years earlier. Not only that, Mrs Bush had organised and attended his funeral.

18. [76]

    Mr Armfield pointed out that Mr Palmer noted that Cec was “in Qld” (see [64] above). The evidence shows that he lived in the Gunnedah area in NSW, whereas Mrs Bush’s other brother, Ted (who was alive in November 2011), did live in Queensland. Thus, Mr Armfield submitted, it may be that Mrs Bush’s confusion was as between her brothers’ names, rather than having forgotten that Cec had died nine years earlier.

19. [77]

    However, evidence Helene gave as to a later conversation with Mrs Bush (see [119] below) suggests that she thought that Cec was still alive.

20. [78]

    Whether Mrs Bush had forgotten that Cec was no longer alive or confused Cec with Ted, her misapprehension does raise questions as to her cognitive state at this time.

21. [79]

    As to Mrs Bush’s appreciation of the nature of her estate, Helene said that “in her later years” Mrs Bush would often comment that she had no money. In fact, in addition to owning her home in Wee Waa and a property at Yamba, she had some $700,000 in deposit at various branches of the ANZ Bank. For the most part, these funds represented the proceeds of a Lotto win that Mrs Bush’s husband had obtained in the early 1990s. Helene said that Mrs Bush would “often” say that “Poppy…won all that money and its nearly all gone”.

22. [80]

    If Mrs Bush had simply forgotten about the money she had on deposit, this would suggest a lack of appreciation by her of the nature and extent of her estate. But it is hard to know whether this was the situation. It may be that Mrs Bush was simply being coy about her financial position.

23. [81]

    In any event, in her supplementary affidavit Helene placed the one particular instance of this type of statement by Mrs Bush to which she deposed in 2012 or 2013 and thus, some time after she executed the November 2011 will.

24. [82]

    The evidence that Mr Palmer gave did not cast much light on the question.

25. [83]

    Mr Palmer had no recollection of any of his meetings with Mrs Bush.

26. [84]

    In his affidavit he gave detailed evidence of what he said was his usual practice when taking instructions for a will. However, in cross-examination, Mr Palmer gave this evidence:

27. [85]

    Although Mr Palmer said that it was his usual practice to read out, aloud, a will to a client before execution, it seems unlikely that Mr Palmer read out all of the November 2011 will to Mrs Bush before she signed it. That is because one of the powers the will gave Mrs Bush’s executor was to apply capital “for the maintenance, education or benefit of any minor beneficiary”; a plainly unnecessary power in a will for the benefit of two charities. Had Mr Palmer read out this clause to Mrs Bush, he would surely have noticed the problem.

28. [86]

    However, the will is short and, so far as concerns the disposition of Mrs Bush’s estate to the two charities, in simple terms. Mr Palmer’s note records that Mrs Bush told him what she wanted and the form of the will reflects those instructions. In those circumstances it seems probable that, even if Mr Palmer did not actually read out to Mrs Bush the dispositive provision in the will, he at least orally summarised to her its simple terms and effect.

29. [87]

    In Manning v Hughes, White J pointed out that in cases like this, the Court should have the benefit “of the inquiries a solicitor ought to make” when taking instructions from a person such as Mrs Bush (at [49]). White J cited with approval the statement in C Rowland, Hutley’s Australian Wills Precedents, (7th ed 2009, LexisNexis Butterworths) at [1.14] (see also, C Birtles, R Neal, Hutley’s Australian Wills Precedents, (9th ed 2016, LexisNexis Butterworths at :[1.14])):

30. [88]

    I doubt that Mr Palmer followed this course. His appreciation of the relevant legal test was vague. Thus he gave evidence:

31. [89]

    In those circumstances, I am not confident I can draw any conclusions as to what enquiries Mr Palmer made of Mrs Bush concerning her understanding of the nature and extent of her estate, the proper objects of her bounty and other such matters.

32. [90]

    However, Mr Palmer was a solicitor of some 40 years’ experience when he made the Impugned Wills and I think it likely that, had Mrs Bush actually manifested some sign of cognitive impairment when in Mr Palmer’s presence, he would have noticed. That Mr Palmer proceeded to witness Mrs Bush’s signature on each of the Impugned Wills suggests that this did not happen.

33. [91]

    Professor Rosenfeld expressed the opinion, based on his reading of the material with which he was provided, that Mrs Bush “suffered from a dementing illness the nature of which was likely to have been Alzheimer’s Disease and/or Vascular Dementia”.

34. [92]

    However, this opinion appears to be based on opinions, to which I refer below, expressed by Dr Peter Harradine, the Director of Rehabilitation and Aged Care Services at Tamworth Hospital in October 2012; almost a year after Mrs Bush executed the November 2011 will.

35. [93]

    Professor Rosenfeld opined that when Mrs Bush made her June 2011 will, she was suffering from “brain disease and at least mild dementia” as well as a “mental condition…which impaired her cognition”; and yet there was no reason to consider she lacked “an appreciation of the act or purpose of making a will”, that it was “more likely than not [she could] understand and be aware of the nature and extent of her property and other assets” and that Mrs Bush was “properly aware of those who might reasonably have been thought to have a claim upon her testamentary estate”.

36. [94]

    Professor Rosenfeld expressed the opposite conclusions as to the second and third of these matters as at November 2011; just five months later. He said that it was likely Mrs Bush “was considerably worse, cognitively, in November 2011 than in June 2011”. There was no medical evidence before Professor Rosenfeld (or the Court) as to Mrs Bush’s condition in that intervening period. Professor Rosenfeld’s opinion appears to be based on his reading of Helene’s account of Ms Bush’s conduct at her wedding, see [55] above, and the manifestations of confusion to which I have referred at [57] above.

37. [95]

    Professor Rosenfeld also referred to Mrs Bush’s nomination of Cec as her executor and said that this further “highlight[ed] the extent of [her] cognitive decline, disordered thinking and reduced recall”.

38. [96]

    Dr Reid agreed that Mrs Bush’s nomination of Cec as her executor “raises concerns about her testamentary capacity” in November 2011.

39. [97]

    Dr Reid noted that on 1 November 2011 Mrs Bush had been diagnosed with iron deficiency anaemia, was being treated with iron infusions and concluded:

40. [98]

    However, Dr Reid pointed out that the clinical records of Mrs Bush’s general practitioner, Dr Sivanathan “make no mention of any cognitive impairment through to December 30th 2011 that was of sufficient severity to alert [him] to Mrs Bush being demented and significantly cognitively compromised at that time”.

41. [99]

    In these circumstances, there is certainly “room for some doubt” (see [37] above) about Mrs Bush’s testamentary capacity in November 2011.

42. [100]

    That doubt arises primarily by reason of Mrs Bush’s nomination of Cec to be her executor. Whatever the reason for that confusion, it obviously bespeaks some lack of cognitive function.

43. [101]

    And the opinions expressed by Professor Rosenfeld and Dr Reid require careful consideration, notwithstanding the fact that they have expressed their opinions on the papers and without seeing Mrs Bush.

44. [102]

    On the other hand, one thing that was agreed between the experts was that it was likely that, at the time of each of the Impugned Wills, Mrs Bush was able to understand the nature of the act of making a will.

45. [103]

    Further, as I have said, the will is very simple, and a decision by Mrs Bush to leave her estate to the Cancer Council and the Wee Waa Anglican Church is understandable.

46. [104]

    The only evidence of conduct by Mrs Bush which might suggest she did not understand the nature and extent of her estate is Helene’s evidence of Mrs Bush saying she had no money. But I find that evidence to be equivocal and, in any event, the one particular instance to which Helene referred was well after she executed the November 2011 will.

47. [105]

    Notwithstanding Professor Rosenfeld’s opinion, I am satisfied that in November 2011, Mrs Bush understood the claims on her bounty to which she should give effect. She was in regular contact with Helene and actually told her, in November 2011, that she was proposing to change her will (see [59] above). Helene also gave evidence in cross-examination that her sisters were in contact with Mrs Bush during 2011 but did not identify any instances, besides that involving Wendy (see [53] above), which suggested Mrs Bush had forgotten them.

48. [106]

    Mrs Bush gave instructions to Mr Palmer without, I infer (see [90]), manifesting any sign of lack of cognitive function.

49. [107]

    And Mrs Bush presented to the outside world as being attentive and alert.

50. [108]

    In those circumstances, and notwithstanding there being some room for doubt, my opinion is that the balance of probabilities points to the conclusion that Mrs Bush had sufficient testamentary capacity to make her November 2011 will. The factor I find most persuasive is the simplicity of the will and its evidently rational disposition of Mrs Bush’s estate.

Events thereafter

1. [109]

   In May 2012 Mrs Bush (who was then 87), was admitted to Wee Waa Hospital.

2. [110]

   The clinical notes from that hospital include:

3. [111]

   Mrs Bush was transferred to Tamworth Hospital in June 2012.

4. [112]

   That hospital’s records include:

5. [113]

   The clinical notes at Tamworth Hospital recorded that Mrs Bush had significant anaemia. She recorded a haemoglobin level of 4.4g/L which, it is common ground, is critically low.

6. [114]

   A care plan prepared in relation to an assessment of Mrs Bush on 18 June 2012 recorded:

7. [115]

   In June and September 2012, Mrs Bush underwent a screening test known as a “Mini Mental State Examination”; the results of which suggested moderate dementia.

8. [116]

   On 2 October 2012, Dr Peter Harradine, the Director of Rehabilitation and Aged Care Services at Tamworth Hospital prepared a report in which he stated:

9. [117]

   Dr Harradine’s report makes clear that by now Mrs Bush had some cognitive impairment. Dr Harradine reported that Mrs Kelly understood (as was the fact) that Mrs Bush “may have a lot of money sitting in accounts”. Mrs Kelly and Mrs Bush were very close. Mrs Kelly was Mrs Bush’s guardian. It seems likely that Mrs Kelly only knew of the money in the accounts because Mrs Bush told her. That does suggest that any remarks that Mrs Bush made to Helene of the kind referred to at [79] to [81] above did not reflect her actual understanding of her financial position.

The November 2012 will

1. [118]

   On 12 November 2012 Mrs Bush asked Helene to drive her to Narrabri “to visit the solicitors to have a new will made”.

2. [119]

   This followed a conversation with Helene (see [77] above) in which Mrs Bush said that “Uncle Cec is my executor” and Helene reminded her that “Uncle Cec passed away years ago”.

3. [120]

   Mr Palmer saw Mrs Bush that day.

4. [121]

   On that occasion Mrs Bush executed her 12 November 2012 will. As I have mentioned, the only difference between that will and her 22 November 2011 will was to nominate her brother Ted, rather than her late brother Cec, as her executor.

5. [122]

   This makes clear that Mrs Bush had, belatedly, either understood that Cec had died, or that she had mistakenly nominated Cec, rather than Ted as her executor, and that it was necessary for her to appoint another executor.

6. [123]

   Mr Palmer had no recollection of this occasion. His note of 12 November 2012 reads simply:

7. [124]

   The meeting was very brief. Helene and her son waited for Mrs Bush at a nearby bakery. Helene said that Mrs Bush was in Mr Palmer’s office for “not more than five minutes”.

8. [125]

   That being so, it seems most unlikely that Mr Palmer did any more than note that a new executor was to be appointed and arrange for Mrs Bush to execute a new will making this change.

9. [126]

   Professor Rosenfeld expressed the view that on his reading of the medical material, Mrs Bush’s dementia had progressed markedly since November 2011, and that in November 2012 “it is unlikely that Mrs Bush would have properly understood or recalled the nature and extent of her assets even in general terms” and that Mrs Bush was “more likely, than the year before, to have been either unaware or had less than adequate recollection in order to be able to weigh and consider her granddaughters as beneficiaries of her estate, as had been indicated in the testamentary intentions of her earlier wills of 1990 and 8 June 2011”.

10. [127]

    Dr Reid expressed a different view and said:

11. [128]

    However, the only change to the November 2012 will was to replace Cec with Ted as executor. It seems clear that Mrs Bush understood that this was necessary and that this was why she needed to execute a further will. Notwithstanding the brevity of Mrs Bush’s meeting with Mr Palmer, I see no reason to doubt that Mrs Bush understood the effect of what she was doing and continued to understand the extent of her property and the claims on her bounty.

Ted’s death and the February 2013 will

1. [129]

   Ted died shortly thereafter, on 7 December 2012.

2. [130]

   Evidently, Mrs Bush came to appreciate that Ted’s death meant that, once again, she needed to appoint a fresh executor. That makes clear that, notwithstanding that her cognitive function may have been declining, she appreciated she needed to make a further will.

3. [131]

   Thus she met Mr Palmer again on 21 February 2013. Mrs Kelly accompanied her on that occasion.

4. [132]

   Mr Palmer’s file note on that day reads:

5. [133]

   Mr Palmer could not recall this occasion. There is no evidence as to how it was that the “Public Trustee” was proposed as executor. It is likely to have been Mr Palmer’s suggestion.

6. [134]

   Professor Rosenfeld opined that Mrs Bush’s testamentary capacity would have been even more problematic by this time.

7. [135]

   He said that:

8. [136]

   Dr Reid was more sanguine about Mrs Bush’s capacity He said:

9. [137]

   Dr Reid continued:

10. [138]

    However, once again, the only change made by the February 2013 will was to substitute the Trustee for Ted as executor. That was necessary because of Ted’s death, as Mrs Bush evidently appreciated. There is no reason to think that Mrs Bush was at this time reconsidering how to dispose of her estate.

11. [139]

    Several months later, in May 2013, Helene first came to know that Mrs Bush had made a will in favour of the Cancer Council and Anglican Church. Thus, Helene gave evidence that in May 2013 she visited Mrs Bush and, at Mrs Bush’s request, opened a letter (evidently from Mr Palmer) enclosing a copy of Mrs Bush’s will.

12. [140]

    Helene said that she then had this conversation with Mrs Bush:

13. [141]

    Helene said that “[f]rom her facial expression and voice” she formed the view that Mrs Bush was “very confused and was becoming upset” and that, accordingly, she did not continue the discussion.

14. [142]

    In Mr Palmer’s file there is a note dated 20 May 2013, made by a member of Mr Palmer’s staff, in the following terms:

15. [143]

    Helene gave this account of a conversation with a member of Mr Palmer’s staff on what appears to have been the same occasion as prompted the file note of 20 May 2013:

16. [144]

    It does seem odd that Helene would, at this stage, refer to Mrs Bush’s “appointed executor” as having “passed away” as by now the Trustee had replaced Ted as executor. It may be that Helene had not noticed that the will she had recently seen appointed the Trustee as executor.

17. [145]

    Helene agreed that she rang Mr Palmer’s office at around this time, but denied that she had requested that Mr Palmer “organise a new will”. However, the file note of 20 May 2013 suggests that she did make such a request.

18. [146]

    On 30 May 2013 Mr Palmer made a note:

19. [147]

    Mr Palmer had no recollection of this conversation. But his note suggests that, following the message Helene left on 20 May 2013, Mr Palmer rang Mrs Bush to discuss whether Mrs Bush wished to “organise a new will” and that Mrs Bush said something to the effect that this was not necessary and that she would explain the position to Helene.

20. [148]

    Mrs Bush’s reaction to Helene’s questions about the disposition of her estate to the two charities might suggest a lack of recollection of the circumstances of her execution of one or all of the Impugned Wills. Or, it may reflect no more than that Mrs Bush did not wish to confront Helene about her change of testamentary disposition. And, Mrs Bush’s response to Mr Palmer’s 30 May 2013 enquiry suggests that she understood, and was satisfied with that disposition.

21. [149]

    Taking all these matters into consideration, including the lay observations of Mrs Bush throughout this period, and Mrs Bush’s evidently rational responses to the need to name new executors in her will and to Mr Palmer’s enquiry of 30 May 2013, I am satisfied that it is more likely than not that, despite there being some diminution in Mrs Bush’s cognitive function, even at this late stage, she still understood what it was to make a will, understood the nature and extent of her property and the claims to which she ought give effect.

Conclusion as to the Impugned Wills

1. [150]

   For these reasons, I am satisfied that Mrs Bush had capacity to make each of the Impugned Wills.

Helene’s claim for provision

1. [151]

   It is necessary therefore, to consider Helene’s claim for provision.

2. [152]

   Helene lived full time with Mrs Bush and her late husband from 1989 until 1992. She said that:

3. [153]

   Helene was a member of the household of Mrs Bush and her late husband, went on holidays with them and was paid an allowance. Helene said that she regarded her relationship with Mrs Bush as that of parent and child and that she often spoke to Mrs Bush at length “about things which would generally be discussed between mother and daughter”.

4. [154]

   Helene is thus an eligible person within the meaning of s 57(1)(e) of the Act in that she was, during this period, wholly or partly dependant on Mrs Bush and was a grandchild. She was also a member of Mrs Bush’s household.

5. [155]

   To obtain an order for provision it is necessary for Helene, as a grandchild, to point to factors beyond those establishing her eligibility under s 57(1)(e): for example Re Fulop Deceased (1987) 8 NSWLR 679 at 681 per McLelland J; cited with approval by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241 and see Hallen AsJ (as his Honour then was) in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [61].

6. [156]

   Mr Ellison submitted that those further factors were that Helene had been named as a beneficiary in the June 2011 will, that she was, in substance, a de facto child of Mrs Bush and had, throughout her life, an extensive relationship with Mrs Bush.

7. [157]

   I accept that submission. Helene’s unchallenged evidence was that she maintained close and regular contact with Mrs Bush throughout their joint lives and especially in Mrs Bush’s later years.

8. [158]

   After Helene ceased living full time with Mrs Bush in 1992, she moved to Queensland and started a relationship with her first husband.

9. [159]

   Thereafter she visited Mr and Mrs Bush in Wee Waa regularly.

10. [160]

    After Mr Bush died in 1995, Helene visited Wee Waa three to six times a year and stayed with Mrs Bush for periods of up to two weeks.

11. [161]

    Mrs Bush suffered a stroke in 2007 and between September 2008 and February 2009 Helene moved in with Mrs Bush to assist her, on a full time basis, with cooking, housekeeping, shopping and other like activities.

12. [162]

    Helene returned to Queensland in February 2009 to care for her children but thereafter remained in constant contact with Mrs Bush and visited Wee Waa every two or three months.

13. [163]

    After Ronny died Helene visited Mrs Bush in Wee Waa regularly and stayed with her for up to two weeks at a time.

14. [164]

    As I have found that Mrs Bush had the capacity to make the Impugned Wills, the result is that Helene receives no provision from Mrs Bush’s estate.

15. [165]

    In the circumstances I have described, my opinion is that, by making no provision for Helene, Mrs Bush did not make adequate provision for Helene’s maintenance and advancement in life for the purposes of s 59 of the Act.

16. [166]

    Helene is currently 43 and is employed in a permanent part time position as a childcare worker. Her taxable income for the year ended 30 June 2016 was in the order of $56,000. Her husband, Adrian, is a member of the Australian Defence Force. His income is similar to Helene’s, although, when on deployment (as he was recently) his income was tax free.

17. [167]

    Helene and Adrian live in rented accommodation. Helene’s son, Andrew, who has some cognitive challenges, lives with them and is likely to be dependent on them for the foreseeable future.

18. [168]

    Helene and Adrian can expect to have the benefit of subsidised Defence Force accommodation until Adrian retires (in some 20 years’ time).

19. [169]

    In those circumstances, the amount of provision that should be made for Helene provision is an amount equal to the share she would have enjoyed under the June 2011 will; namely a 1/5th share.

Conclusion

1. [170]

   I invite the parties to confer and agree on the orders that should be made to give effect to these reasons.

2. [171]

   I will hear the parties as to costs.