Bell v NSW Trustee & Guardian; Estate of William Anthony Hickey

1. [1]

   This case concerns the estate of the late William Anthony Hickey. The deceased was variously called William, Bill or Billy. Without meaning any disrespect, I will call him William, as his parents did. William died on 27 December 2016, when he was 53 years old.

2. [2]

   William was a young man with promising expectations in life, when he suffered a catastrophic accident. He was a relatively high achiever in high school and a good sportsman. On 25 July 1979, when he was 16 years old, he was playing touch football when he dived to touch another player. He skidded along the ground and his head collided with a metal pipe.

3. [3]

   An x-ray of his skull at hospital showed a fracture of the coronal suture. Some 16 hours after his admission, his condition deteriorated. He was taken immediately to the operating theatre where a right parietal craniotomy was performed. A right frontal extradural haematoma was found and evacuated. After some post-operative improvement, about 24 hours later he deteriorated again. A large anterior sub-frontal extradural haematoma was found and evacuated. He was also found to have a thin subdural haematoma. A cerebral CT scan performed on 13 May 1982 showed evidence of right frontal cerebral atrophy. In 1983, evidence was discovered of a chronic subdural haematoma on the right side underlying the previously performed craniotomy site.

4. [4]

   William had a severe change of personality and intellect because of the accident in 1979. As a result, he was unemployable and in need of close supervision by other people.

5. [5]

   In due course, William was awarded substantial damages as compensation for his injury. A trust fund was established under the management of what is now NSW Trustee & Guardian (the Trustee), the defendant in these proceedings.

6. [6]

   William made a number of wills, the most relevant for the purposes of these proceedings being wills made on 21 December 2011 and 22 April 2016. The Trustee was named as the executor and trustee in both of these wills.

7. [7]

   William’s death certificate recorded that the principal cause of death was chronic obstructive pulmonary disease from which William had suffered for 10 years. The death certificate also noted that William had suffered from epilepsy for 37 years.

8. [8]

   William’s adoptive parents, Trevor William Hickey and Dorothy Isabel Hickey, predeceased him. So did the aunts and an uncle who had been named as beneficiaries in William’s earlier wills.

9. [9]

   At the time of his death, William was survived by two cousins, June Ann Bell and Catherine Martha Robertson. They are the plaintiffs in these proceedings. If the 21 December 2010 will is admitted into probate, the plaintiffs will share William’s estate between them.

10. [10]

    If, instead, the 22 April 2016 will is admitted to probate, the plaintiffs will still receive gifts, but only legacies of $100,000 each.

11. [11]

    William left the balance of his estate under the 22 April 2016 will to two members of the Kimber family, who lived in the same town where William’s home was located. Members of the Kimber family befriended William and he became particularly attached to them after the death of his father, Trevor, on 15 January 2014. William became a close friend of Faye Louise Kimber (Faye) and left her a legacy of $100,000, his home and certain other property. However, the deceased made Faye's small daughter, Madeleine Rose Kimber-Bennett, known as Maddie, his residuary beneficiary.

William’s wills

1. [12]

   William made his first known will on 24 November 1986. He appointed the then Public Trustee as his executor and trustee. He gave the whole of his estate to his mother and father in equal shares, and if survived by only one of them, the survivor was to take the whole of his estate. If both of his parents did not survive him, William provided that his estate should be divided into two equal parts and held for an uncle absolutely, or for his uncle’s children if the uncle did not survive William, as to one half, and to an aunt absolutely as to the other half.

2. [13]

   William’s second known will was made on 30 January 1990. The primary gift under this will was made to the William’s parents in similar terms to the earlier will. If that gift failed, the will devised equal shares to the same uncle and the same aunt as in the previous will, but it named the two children of the uncle who were to take if the uncle predeceased William, and added the additional term that, if William’s aunt predeceased him, her share would be given to named children of William’s aunt equally.

3. [14]

   William’s third known will was made on 2 October 2001. Again, William left the whole of his estate to his parents, or whichever of his parents survived him. If that gift did not take effect, William left his estate to two named aunts, or whichever of those aunts survived him. These were different aunts to the aunt who was named as a beneficiary under the two earlier wills.

4. [15]

   William made his fourth known will on 21 December 2011. This is the will that the plaintiffs propound. As William’s mother had died, the primary gift under the will was of all William’s estate to his father, if the father survived William. If that gift failed, then William’s estate was to go to a named aunt, who was one of the aunts named as a beneficiary in the previous will. If the aunt did not survive William, the will provided for the residue of the estate to be given to such of the plaintiffs as survived William.

5. [16]

   William appointed the Trustee as his executor and trustee under each of the wills considered above.

6. [17]

   The final known will made by William was made on 22 April 2016, and is the will propounded by the Trustee.

7. [18]

   William’s final will also appointed the Trustee as his executor and trustee, and contained the following dispositive provisions:

8. [19]

   The evidence was not specific as to why William made his earlier wills. The first of the wills was drawn by William’s solicitors in his compensation proceedings, and was apparently made shortly after he received the damages that he was awarded. The first three wills were uncontroversial, insofar as they left William’s estate to his parents with gifts over to close relatives. It is not clear why William changed the gifts over between wills. It is also natural that William made his father the primary beneficiary under his 21 December 2011 will, as his mother had died. It is not surprising that William decided to change his testamentary dispositions after his father also died, as the 21 December 2011 will had made gifts over to family members with whom William did not appear to have a close association. William’s reasons for making his 22 April 2016 will are a primary subject of these reasons for judgment.

The proceedings

1. [20]

   The plaintiffs commenced these proceedings in 2017, but filed an amended statement of claim on 16 May 2018. They sought a grant of probate in solemn form of William’s 21 December 2011 will to the defendant, or alternatively that letters of administration in solemn form with that will annexed be granted to them. As a further alternative, they sought a grant to the plaintiffs of letters of administration of the intestate estate of the deceased.

2. [21]

   Relevantly, the Trustee filed an amended statement of cross claim on 12 July 2018. The Trustee sought orders that probate of William’s known wills be granted to it in solemn form, in the alternative, of each of those wills in reverse chronological order.

3. [22]

   The plaintiffs filed a defence to the amended cross claim on 13 November 2018. The challenge made by the plaintiffs to the validity of the deceased's 22 April 2016 will is detailed in this pleading. The plaintiffs claim:

4. [23]

   In order to explain the real issues that call for determination in this case, it will be convenient to make a number of observations concerning the significance of the particular allegations in the plaintiffs' defence to the amended cross claim

5. [24]

   The plaintiffs challenge the validity of the 22 April 2016 will on all of the grounds that are conventionally considered to be available to prevent probate being granted of a will. They say that William lacked testamentary capacity, he did not know and approve of the contents of the will, and he made the will as a result of undue influence as that term is understood in probate law.

6. [25]

   The plaintiffs accept that the consequences of William’s 1979 accident were permanent and constant so that, if the Court decided that William lacked testamentary capacity to make the 22 April 2016 will because of the damage to his mental competence caused by the original accident, it might logically follow that the Court should decide that William lacked testamentary capacity at the time that he made each of his wills.

7. [26]

   Consequently, the plaintiffs could only establish the validity of the 21 December 2011 will if the Court were to decide that William was not deprived of testamentary capacity by the original accident, but that he lost testamentary capacity between 21 December 2011 and 22 April 2016, by reason of the combined effect of the original accident and a decline in his capacity after the death of his father, as claimed in particular (d) to par 4 of the plaintiffs' amended defence to cross claim.

8. [27]

   In broad terms, the Trustee does not challenge the truth of the matters set out in the particulars to par 4 of the plaintiffs' defence to the cross claim concerning the testamentary capacity of William on 22 April 2016. However, the Trustee does challenge the plaintiffs' claim concerning the real nature of the intellectual deficit suffered by William as a result of his original accident.

9. [28]

   A cardinal issue in this case is the determination of the real nature and effect of the residual intellectual competence retained by William, notwithstanding the consequences of the accident.

10. [29]

    The Trustee accepts that, until the death of William’s father, the father exercised supervision and control over William’s activities and acquaintances.

11. [30]

    However, the Trustee's case is that the allegation that, following the death of William’s father, William was left with no supervision or control over his activities and acquaintances, overstates the degree of William’s dependency and the absence of supervision experienced by William. The Trustee's case is that William’s level of competence did not require absolute supervision, and that he did receive a certain level of supervision from members of the Kimber family. Nonetheless, William’s circumstances did deteriorate. The case requires the resolution of questions of degree.

12. [31]

    The Trustee accepts that William was a regular user of marijuana. There was, however, no evidence as to the actual effect of William’s use of marijuana on his mental competence or behaviour. I am not aware of any evidence that would justify a finding that William used amphetamines.

13. [32]

    If the defence to the cross claim is taken at face value, the allegations that William became vulnerable to exploitation by persons who sought to supply him with drugs or their associates, and was exploited by persons who supplied him drugs or their associates, appears to paint a picture that William fell, because of his disabilities, into a den of iniquity. The Trustee challenges the claim that William was exploited in the manner asserted.

14. [33]

    The Trustee does not take issue with the fact that William was a regular drinker of alcohol – the only specific evidence was William’s assertion to a doctor that he drank five beers every day – and that he used marijuana regularly. William also played the poker machines. He liked to go to pubs and clubs in the area. One allegation that is not made in the defence to the amended cross claim, but which is certainly true, is that William smoked cigarettes to excess. It is almost certain that William’s smoking caused the chronic obstructive pulmonary disease that killed him at the age of 53 years.

15. [34]

    It is very likely that the persons with whom William associated after the death of his father, and indeed before, participated in the same recreational activities as William did. The Trustee challenges the depiction of those persons as drug suppliers or persons who exploited William.

16. [35]

    As to the allegation that William failed to take his epilepsy medication as prescribed or at all, there was no evidence to support that claim. Immediately after William suffered his accident, the treating doctors formed the view that he was unlikely to suffer epilepsy. However, it is clear from the evidence that at some stage it was discovered that William was an epileptic, and he was prescribed medication. The only evidence was, as given by Faye, that William always took his epilepsy medication, and to her knowledge, the problem was not that he did not do so, but he occasionally made a mistake and took more than one dose of the medicine. There was no evidence at all of William suffering any detrimental effect on his cognitive ability as a result of episodes of epilepsy.

17. [36]

    The Trustee accepts that William drank alcohol to excess and was probably addicted to alcohol. However, excessive use of alcohol can have a range of consequences. There was no evidence that William was a hopeless alcoholic, or that he was frequently intoxicated to the point of incompetence.

18. [37]

    The evidence clearly established that William did not care for himself adequately after the death of his father. Whether he was strictly unable to do so, or whether, as a consequence of his injury, he was simply not motivated to do so, it is clear that William did not keep his person or his home at a satisfactory community standard. However, there remains a question as to whether that incompetence was a result of his injury and the absence of family supervision as opposed to evidence of testamentary incapacity.

19. [38]

    Finally, there was no direct evidence at all that, after the death of his father, William suffered from confusion and a deteriorating loss of memory and the ability to recall. William clearly had very serious functional intellectual deficits as a result of his original injury, and the real question is the identification of the extent to which those functional deficits deprived William of the capabilities that are required for testamentary capacity.

20. [39]

    Finally, in relation to the allegations made by the plaintiffs to support their claim that William executed the 22 April 2016 will as a result of the undue influence of members of the Kimber family, the Trustee makes no challenge to the basic circumstances in which the deceased executed that will. However, the Trustee does challenge the claim made by the plaintiffs that William was effectively coerced to make the will by the Kimber family.

21. [40]

    The 22 April 2016 will was made upon instructions given by the deceased to an officer of the Trustee, Ms Samantha Pascoe. The deceased had travelled from his home to the Trustee's office in Newcastle in a car driven by Faye Kimber. Faye's mother, Linda Kimber (Linda), and her professional finance advisor, David Joseph, had travelled down to Newcastle in another car. Faye, Linda and Mr Joseph were present in the room with the deceased and Ms Pascoe when the deceased gave his instructions for the 22 April 2016 will, and some of them were present at various stages during the preparation of the will itself and its execution by the deceased. Faye was required to leave the room at the time William executed the will.

22. [41]

    All four of the persons now living who were present when the 22 April 2016 will was made gave evidence at the hearing.

Effect of the accident on William’s life

1. [42]

   William made a reasonable physical recovery after he left hospital, although he suffered from minor left hemiplegia.

2. [43]

   However, he had a severe change of personality and intellect as a direct result of the accident in 1979. He returned to school, but dropped to the bottom of the class because of an inability to learn. He left school in June 1980 without obtaining his Higher School Certificate. He obtained a position as an apprentice electrician, but, although he could do the practical work, he failed a number of years’ exams in the associated technical course. He did not complete his apprenticeship. He was reported as not being able to remember what he was doing at work, and he tended to leave work early and took days off without permission. William’s failure to finish school and his failure at technical college was attributed to his great difficulty in memorising new information.

3. [44]

   William got into trouble with the Police, particularly with stealing and forgery. He lacked insight and was impulsive and could not plan for the future. William lacked emotional control. He had little insight into his problems. He had poor alcoholic tolerance, but was very keen to go regularly to a club or hotel and spend all his money. William was unemployable and remained unemployed for the balance of his life. He lost his ability to handle money sensibly and he enjoyed gambling. At times William would borrow money when he was not in a position to pay it back. William frustrated his parents by selling the family’s property without their permission in order to obtain additional spending money.

4. [45]

   William’s day-to-day life was closely supervised by his parents during their lifetimes. They managed William’s pension money and later the money that he received from the Trustee from his trust fund. They allotted money to William so that he could not spend it all at once.

5. [46]

   Relatively soon after William’s accident, his parents sold their home and bought a caravan so that they could travel around Australia with William. The travelling arrangements assisted William’s parents in keeping him under close observation.

Medical evidence about the effects of William’s accident

1. [47]

   It will be appropriate now to turn to a consideration of the evidence concerning the cognitive, psychological and personality disabilities experienced by William because of his original injury, insofar as those disabilities are material to the presence or absence of testamentary capacity when William made his various wills.

2. [48]

   It will be appropriate to make a number of introductory observations concerning the effect of the evidence on this subject.

3. [49]

   First, as mentioned above, it was accepted by the parties that the damage caused to William by the accident that occurred in 1979 was devastating and permanent.

4. [50]

   Secondly, most of the expert evidence that was available that gave reasoned consideration to the effect of the accident was prepared on the instructions of William’s solicitor and the State Crown Solicitor, who apparently acted for the defendant in the proceedings that led to the award of a substantial amount of damages to William. That expert evidence remains relevant, notwithstanding that it was prepared at dates between 1983 and 1986, because of the accepted permanence of the consequences of William’s injury.

5. [51]

   However, in my view it is significant, and must be remembered, that the focus of the expert medical examination was whether William had been rendered totally unemployable by the accident, whether he would require lifelong supervision, and whether he was competent to manage a substantial fund of money to provide for himself adequately for the duration of his life.

6. [52]

   The expert medical evidence contains very little investigation of William’s retained intellectual capabilities.

7. [53]

   As will be seen, that is significant because William was a relatively highly functioning individual before the accident, and the consequences of the particular injury to William’s brain was to permanently deprive him of some mental functions without rendering him generally incapable. The consequence of the accident was to cause William to live the remainder of his life with a functioning brain that was wholly deprived of specific capabilities.

8. [54]

   There was no medical expert evidence that focused directly on the residual competency retained by William, after allowing for the absolute deficits caused by the accident.

9. [55]

   There was also very little investigation in the lay evidence concerning the day-to-day consequences of William’s brain injury, in the sense of whether, and if so to what extent, William was capable of communicating with others and securing his desires and determining his own wishes, if he put his mind to it.

10. [56]

    The expert medical evidence that was produced for the purposes of William’s compensation claim contains information concerning the physical consequences of William’s injury, the effect on his intellectual capabilities, and also anecdotal evidence of the effect on William’s life. It is not necessary to focus in detail on the physical consequences of the injury, as no party suggested that the precise nature of the physical consequences of the injury was material to William’s testamentary capacity.

11. [57]

    I will deal now with the effect of the injury on William’s cognition and mental competence, as this has a direct bearing on his testamentary capacity. Although the various medical experts expressed their opinions in somewhat different terms, they were broadly in agreement. It is not necessary to set out in detail all of the opinions, although I have taken all of those opinions into account. The evidence given by the expert psychiatrists and psychologists provides the most detailed information.

12. [58]

    On 30 March 1984, Dr L G Kiloh, a consultant psychiatrist, expressed the following opinion in a report to the State Crown Solicitor's Office:

13. [59]

    Dr Kiloh recommended that William have full psychometric testing, and he recommended a named psychologist experienced in assessing brain damage to patients.

14. [60]

    Mr Carl Bucovaz, a clinical neuropsychologist, provided that report to the State Crown Solicitor’s Office on 11 June 1984. Mr Bucovaz' report described the following results of William’s neuropsychological examination:

15. [61]

    In a further report to the State Crown Solicitor's Office dated 15 September 1986, Mr Bucovaz expressed opinions that included the following:

16. [62]

    A neurologist, Dr Gerald Broe, provided a report to the deceased's solicitors on 21 February 1985, concerning the results of an investigation by the Head Injury Service of Lidcombe Hospital. Dr Broe's report included the following:

17. [63]

    As a final sample of the expert medical opinion, Mr Wayne Levick, clinical psychologist, provided a report to William’s solicitors on 30 October 1986, which included:

18. [64]

    Mr Levick expressed the following opinions concerning the result of psychometric tests given to William: "… A quite severe verbal learning problem is apparent with his particular problem being the retrieval of verbal material” … “his performance continues to reflect problems with planning, error utilisation and impulsivity” … “This was poorly planned but the final result was quite good and certainly reflects intact visuo-spatial executive skills” … “This points to problems with multiple tracking and sustained performance”.

19. [65]

    Mr Levick expressed the following conclusions:

20. [66]

    The parties did not lead any expert medical evidence concerning the significance of these findings in respect of William’s testamentary capacity. The evidence appears to be consistent with William having reasonable mental competence in relation to immediate tasks when the information necessary to make decisions is readily available. Dr Kiloh reported that William’s immediate recall was good. Mr Bucovaz said that William was a young man of average to good average intellectual ability. William gave good performances on a number of tasks that required the capacity to apprehend the orderly structure of the task and to utilise information to organise the task. William had an intact immediate memory span. William demonstrated a mixture of very poor and quite good performances on reasoning and problem-solving tasks. William was cognitively able to perform complex tasks. William’s primary disability appears to have been his inability to learn and retain new material. He was unable to maintain task related behaviour for the time necessary to achieve the desired goal. Consequently, he lacked foresight, the ability to plan ahead and had diminished judgment. He performed poorly on tasks requiring careful analysis, continuous regulation and verification of behaviour.

21. [67]

    In 2010, the Trustee made the decision to obtain information from the treating medical practitioners of trust beneficiaries to ensure that there was no significant change in circumstances relating to their ability to give a discharge of their respective trusts. Mr Shawn Branscombe, then an assistant to Mr Christopher Lowe at the Newcastle branch of the Trustee, wrote a letter to Dr Philip Haines on 20 July 2010, who Mr Branscombe believed was William’s general practitioner. The letter included the following:

22. [68]

    Dr Haines' 27 July 2010 response included the following:

23. [69]

    Dr Haines’ recommendation that the current arrangements continue suggests that the doctor gave his responses in the context of an understanding that what the Trustee needed was medical advice as to whether William continued to need the assistance of the Trustee in retaining and managing William’s trust fund on a long-term basis.

The plaintiffs’ evidence

1. [70]

   Both of the plaintiffs gave evidence, which was relatively brief because of the limited association they had with William in his later life.

2. [71]

   June spoke of attending regular dinners with her grandmother, her mother and William's parents in the years up to the time when William suffered his injury in 1979. Family gatherings at June's grandmother's home continued until sometime later when William and his parents moved to Port Macquarie to live. After that June saw William and his family several times a year at family gatherings. After William and his parents moved to Tanilba Bay, June continued to see William at family gatherings. The last of these gatherings took place in February 2012. On these occasions, June saw and spoke with William. June visited William at his home in Tanilba Bay on occasions, the last time being in about 2012 or 2013. June saw William and his father when they visited June's mother in hospital in January 2013 and at her mother's funeral in February 2013. June saw William at his father's funeral in January 2014. June spoke to William on the telephone from time to time to ask how would he was getting on. She phoned him every year for his birthday, including his last birthday on 15 May 2016. The last occasion she spoke with William by phone was in October 2016, the year he died.

3. [72]

   June said that William was well mannered and polite. She said: "He greeted relatives, usually at his father's prompting. He did not have a lot to say. It was difficult to engage him in conversation. Even when he became an adult and into his twenties, thirties and forties this did not change”.

4. [73]

   June did not give evidence of any significant, obvious cognitive dysfunction suffered by William.

5. [74]

   June said that William was often unkempt, and as he got older his physical appearance gradually deteriorated. She observed a noticeable deterioration in William's appearance, dress and body odour after his father died. June described William's home as being always very untidy and messy.

6. [75]

   Catherine's evidence was to similar effect, although given more briefly. She attended weekly family gatherings with William at her grandmother's home in Newcastle up to the time of William's accident. She visited William in hospital. Catherine continued to see William after his accident each week at family get-togethers, at Christmas, funerals and her parents' wedding anniversary until William and his parents moved to Port Macquarie. Catherine last saw William at his father's funeral in about January 2014. She spoke with William by telephone several times a year up to his last birthday in 2016.

Linda Kimber’s evidence

1. [76]

   Linda Kimber gave evidence that she and her husband, who died in 2015, were well acquainted with William, whom they knew as "Billy".

2. [77]

   Linda said that, shortly before he made his last will, William brought his previous will to Linda's home, and said words to the effect: "I want to change my will. If I don't what I have will go to the State". William said: "I want to give $100,000 to the 2 cousins and then I want to make provision for Faye and Madeleine".

3. [78]

   In cross-examination, Linda gave some confused evidence about her conversations with William, which strongly suggested that she could not remember what was said, and got the contents of William's last will mixed up with his previous one.

4. [79]

   Linda gave evidence of a meeting that took place in February 2016 at her home with her financial advisor David Joseph. Linda invited William to attend the meeting with his will so that he could ask David questions about it.

5. [80]

   Linda said that the meeting took place on 18 February 2016 at her house. William was present but Faye was not. David read William's will. David said to William: "I can't help you with the will but I could come to the NSW Trustee & Guardian if you need my assistance".

6. [81]

   Linda travelled to Newcastle with David on 22 April 2016 when William made his last will. Linda was present with William, Faye and David for the initial meeting with Ms Pascoe. She said that William said to Ms Pascoe: "Madeleine's the daughter I never had".

7. [82]

   Linda heard William say to Ms Pascoe concerning the plaintiffs: "I'll give them some money because my father wanted it in my old Will. I don't really like them. They haven't come to see me since my father died. They don't ask me to Christmas or birthdays”.

8. [83]

   Linda said that neither she, Faye nor David took part in the conversation, except when she declined an offer by William to leave her $100,000 in his will.

9. [84]

   Linda said that she first met William at the Tanilba Bay RSL Club with her husband in late 2010. William was a regular beer drinker who visited the club daily. When William's father was still alive, Linda observed that William dressed poorly and did not appear to shower frequently. Other people made fun of him. Linda said that she and her husband always spent time with William and that he appeared to enjoy their company.

10. [85]

    Faye came to Tanilba Bay in about 2012. At first she lived in a rented house around the corner from William. Subsequently she moved in with Madeleine to live with Linda and her husband. Linda said that, after William's friendship with Faye developed, William became a frequent visitor to her home. More particularly after the death of his father in 2014, William often had his evening meal with Linda and her family. Linda observed that he developed a close relationship with Madeleine, who is now seven.

11. [86]

    Linda said that William's health deteriorated by late 2015. He appeared to be unable to manage domestic tasks at his house. Linda said, to her observation, the house became unliveable. Linda spoke with William about the state of his house and his need for domestic services. Linda was aware that Faye took the initial steps to become William's carer, but the paperwork was not completed.

12. [87]

    Linda gave the following evidence concerning William's lifestyle:

Martin Kimber’s evidence

1. [88]

   Martin Kimber, who is Linda’s son, first met William on Martin's discharge from the Australian Army Corps of Signals in February 2012 with a back injury, for which Martin receives a disability pension. Martin returned to Tanilba Bay to live with his parents.

2. [89]

   Martin was friendly with William. He learned from conversations that William suffered a brain injury from an accident as a schoolboy at the age of 16 or 17.

3. [90]

   Martin observed the friendship between William and Faye, Madeleine and his parents. Faye and Madeleine referred to William as "Uncle". Martin said that he often heard William refer to Madeleine as "the daughter I never had".

4. [91]

   Martin said that, when he first met William in 2012, William was a regular beer drinker and smoked cigarettes and marijuana. He did not work. Much of his time was spent in local clubs and pubs. After William's father died, William frequently had his evening meal with the Kimber family. He owned a car and had a driver's license. Martin said that, from his observation and from speaking with William, his favourite activities were going on fishing and camping trips. He was able to manage his fortnightly allowance for his own benefit. William's lung function was impaired.

5. [92]

   In cross-examination, it became clear that Martin regularly spent relatively long periods away from Tanilba Bay travelling throughout Australia.

Faye Kimber’s evidence

1. [93]

   Faye Kimber gave only brief affidavit evidence. She said that she felt very stressed by the process of cross-examination.

2. [94]

   Faye said that after his father died, William became more independent and she saw him out and about more than she did previously.

3. [95]

   Faye said that she supposed that William became more dependent on her although he did not want to be dependent.

4. [96]

   Faye said that she cared for William because he was her friend.

5. [97]

   Faye accepted that she took steps with William to become his formal carer and said "we talked about down the track was of childcare fees being so expensive, but we never followed through with it": T 123.20. Faye said, in response to a question as to whether her care for William related to most aspects of his life: "Well, we hang out. We were friends, so we hung out together. So obviously his day-to-day stuff I was going to help him with. He didn't want much help. He was too proud": T 124.48.

6. [98]

   Faye said that she did not do much cleaning of William's house because he would not let her. She could not get into William's house towards the end. He was too embarrassed.

7. [99]

   Faye said that she did William's personal washing "if… I could get it off him". She helped with his medication and took him to the doctor. She said that she and William were together most days, perhaps on average four hours a day.

8. [100]

   Faye agreed that William would sometimes come to her house for more than one meal a day. She said that, left to himself, William would have eaten microwaved sausage rolls.

9. [101]

   The following cross-examination occurred concerning Faye's knowledge of the value of William's estate at T 134.11 – T 136.25:

10. [102]

    Although Faye plainly found the process of being cross-examined stressful, she attended to the questions and answered them as best she could. I am satisfied that she told the truth to the best of her recollection.

David Joseph’s evidence

1. [103]

   David Joseph gave evidence in his affidavit that he has worked in the financial planning industry as a financial planner or manager since November 1998. He is Linda Kimber's financial planner.

2. [104]

   Mr Joseph gave evidence of the meeting at Linda's home on 18 February 2016. William asked Mr Joseph whether he could help William with William's finances. When the consequences of William's accident were explained and Mr Joseph learned of the trust fund managed by the Trustee, Mr Joseph informed William that it would be very unlikely that Mr Joseph would be able to take over the management of William's affairs. Mr Joseph agreed to visit the Trustee with William to help him better understand his situation.

3. [105]

   Mr Joseph went to the Trustee’s Newcastle office with William, Linda and Faye on 7 March 2016 for a meeting with Ms Pascoe.

4. [106]

   After the meeting, William informed Mr Joseph that he wanted to change his will. Mr Joseph advised William that they would need to talk to the Trustee to have that done.

5. [107]

   Mr Joseph gave evidence of his attendance with William, Linda and Faye at the second meeting at the Trustee's office on 22 April 2016. Mr Joseph said that William said to Ms Pascoe: "I want to change my Will. I have not met my cousins for many years. I don't want to give them all of my estate". There was also discussion at the meeting about money being spent to repair William's home.

6. [108]

   Mr Joseph also said: "In my dealings with William although he was present with Linda I did not observe any pressure on William to make provision for members of the Kimber family". He said that, from his observation and from what he was told by Linda, there was a strong bond between William, Faye and Madeleine, and that Faye had had been giving assistance to William for a number of years.

7. [109]

   I formed the view, from Mr Joseph’s cross-examination, that he was a sound and satisfactory witness who gave true and thoughtful answers to the questions that he was asked. I accept that he visited the Trustee with William on the two occasions in order to provide genuine independent assistance for William.

8. [110]

   Mr Joseph’s evidence was clear that he never considered that he could take William on as a client, and he was not in any way William's accountant.

Evidence of Christopher Lowe

1. [111]

   Christopher Lowe has been an employee of the Trustee at its Newcastle branch since 1990. He has been employed as a will-maker for the Trustee since 1990 and has done courses within the organisation in relation to the preparation of wills and powers of attorney. His current position is Senior Branch Officer in Newcastle Outreach Branch. Will-making is the present focus of his work.

2. [112]

   Mr Lowe was a witness to William’s 22 April 2016 will. He only signed that will as a witness and did not give evidence concerning the circumstances in which the will was made.

3. [113]

   The primary significance of Mr Lowe’s evidence concerned his involvement in the preparation of William’s 2 October 2001 will. Mr Lowe gave evidence of why he believed that William had testamentary capacity at the time that he made that will. The evidence is relevant to whether William had testamentary capacity on 22 April 2016, because the parties accepted that the damage to William’s cognitive facilities caused by his accident when a schoolboy was permanent and constant, save for the possibility that his testamentary capacity may have diminished after the death of William’s father in 2014.

4. [114]

   Mr Lowe gave evidence that he first met William in 1996. He was then a Trust Officer and took over the management of William’s trust account. Mr Lowe occupied that role until 2004, and during that period he had regular contact with William and his parents concerning the day-to-day management of William’s financial affairs, both on the phone and face-to-face. For a period until 2013, Mr Lowe lived in Tanilba Bay. He saw William from time to time in the street. They always exchanged pleasantries. Mr Lowe observed that William did not appear well-groomed. He was usually dressed in shorts with a tucked in shirt and long socks. William owned a car and had a driving license. He changed cars from time to time using his funds with the Trustee. William’s father kept William’s car serviced.

5. [115]

   Mr Lowe said that during William’s thirties there was a suggestion that he try independent living. He spent a period in a hostel with a part-time carer teaching him life skills. William was an enthusiastic fisherman and Mr Lowe believed that he had been offered a job on a boat. After a period William returned home at the instigation of his parents.

6. [116]

   Mr Lowe gave evidence concerning the amount of William’s fortnightly allowance from his trust funds, and how arrangements were made for special payments for matters such as holidays at William’s request. Mr Lowe said in his affidavit:

7. [117]

   In relation to the circumstances in which William’s 2 October 2001 will was made, Mr Lowe said:

8. [118]

   Mr Lowe said in cross-examination that he was always a will-maker. The last year in which Mr Lowe assessed William for his testamentary capacity was 2001.

9. [119]

   Mr Lowe acknowledged that he was aware that William for a time had a problem with stealing for quick money. He understood that William was taking items from his home, not from other households. Mr Lowe acknowledged that in December 1999 he became aware, by means of a telephone call from William’s father, that William had fallen back into the routine of borrowing money and not being able to repay it.

10. [120]

    Mr Lowe was cross-examined about William’s capacity to live independently. Mr Lowe had assisted William in an attempt to do so, which ultimately came to an end because of a decision made by William’s father. Mr Lowe disagreed with the suggestion that William’s capacity to live independently was minimal. He said that he felt that William could, with the right support, have continued living away from his home.

11. [121]

    Mr Lowe said that he was always of the opinion that William could not manage a large sum of money. He could not manage his trust fund.

12. [122]

    The following cross-examination occurred concerning the circumstances in which Mr Lowe formed the opinion that William had testamentary capacity in 2001 at T 29.30 – T 29.43:

13. [123]

    Further, at T 30.9 – T 30.15:

14. [124]

    Mr Lowe acknowledged that he was aware in 2001 that William was suffering from long-term permanent brain damage. He said: “I based my opinion on my day-to-day dealings with Bill Hickey” (T 37.18).

15. [125]

    Mr Lowe gave the following evidence of his knowledge of the legal test for testamentary capacity at T 35.42 – T 36.1:

16. [126]

    Further, at T 36.32 – T 36.38:

17. [127]

    Mr Lowe disagreed with the suggestion that it was necessary for him to get a separate medical opinion concerning William’s testamentary capacity given that he was aware that William had severe brain damage for more than 20 years.

18. [128]

    In conjunction with the preparation of William’s 2 October 2001 will, Mr Lowe completed a questionnaire provided by the Trustee, which included the following (the answers set out below are in Mr Lowe’s handwriting):

19. [129]

    Mr Lowe was resolute in asserting his professional opinion, as a long-term will maker, that William had testamentary capacity on 2 October 2001, notwithstanding the consequences of the brain injury that he had suffered many years earlier. His evidence establishes that Mr Lowe formed this opinion on the basis of his frequent, long-term personal dealings with William.

20. [130]

    Mr Lowe was a careful and conscientious witness who was entirely independent of the present dispute and gave his evidence in a satisfactory and credible way.

Evidence of Samantha Pascoe

1. [131]

   William’s 22 April 2016 will was prepared on that date by Samantha Pascoe, a trust officer employed by the Trustee at its Newcastle office. Ms Pascoe was first employed by the Trustee in 2008. Until February 2017, Ms Pascoe worked as a trust officer, which included assisting in the management of trust funds and preparing wills for clients of the Trustee. From February 2017 onwards, Ms Pascoe has worked in the Newcastle Service Centre. Her work there has not included the preparation of wills.

2. [132]

   Ms Pascoe said in her evidence that, when working in the Newcastle branch office, her duties included the drafting of wills. She had completed the Trustee's will making, power of attorney and enduring guardianship courses. She said that she was familiar with the concept of testamentary capacity and the principles set out in Banks v Goodfellow. She estimated that, in the period from 1 January 2015 to the date of the deceased's last will, she was responsible for the preparation of approximately 270 wills.

3. [133]

   Ms Pascoe said that, from about April 2011 to September 2016, she dealt with financial transactions for clients of the Trustee with monies in trust including William.

4. [134]

   Ms Pascoe was a witness to William’s will made on 21 December 2011. William’s father made his last will on the same day. Ms Pascoe also witnessed that will. William’s father gave his estate absolutely to William.

5. [135]

   Ms Pascoe said she was well-acquainted with William before he made his 2011 will. She dealt with him when he attended the Trustee's office in connection with his trust fund. Ms Pascoe was aware that the fund was substantial, and was the result of a damages award for personal injuries suffered by William as a teenager.

6. [136]

   After William’s father died on 15 January 2014, William was often accompanied by members of the Kimber family when he attended the Trustee's office. Ms Pascoe had conversations with William from time to time. She said that she could not recall any mention by William of the plaintiffs in the years before he made his 22 April 2016 will.

7. [137]

   Ms Pascoe said that, on 7 March 2016, William attended the Newcastle office with Faye Kimber and her accountant David Joseph. Ms Pascoe had previously met Faye with the William. During the conversation, William said: "Can you give me a copy of my will? I want to change it but I don't want to do it today. I want to leave something to Faye and her daughter." Ms Pascoe gave William a copy of his 21 December 2011 will.

8. [138]

   Ms Pascoe made a detailed file note of this meeting. The file note records a conversation about the William’s financial affairs, and in particular the fact that the William’s house needed some maintenance and repairs. The estimate of the costs was in the $60,000 to $70,000 range.

9. [139]

   There was a discussion about the Trustee funding William’s expenses on a cruise that William, Faye and her daughter proposed to go on at the end of the year.

10. [140]

    In response to a question asked by Mr Joseph, Ms Pascoe advised, in William’s presence that there was about $1.3 million in William’s trust fund, not including the house, car or caravan.

11. [141]

    Relevantly to William’s intention to make a new will, the file note recorded:

12. [142]

    William returned to the Trustee's Newcastle office on 22 April 2016. He attended with Linda Kimber, Faye Kimber and David Joseph.

13. [143]

    William completed with Ms Pascoe a pro forma questionnaire provided by the Trustee.

14. [144]

    The questionnaire recorded, by the placing of a cross in a box to signify yes or no, that William’s assets included real estate, bank accounts, bonds and interest-bearing investments and a car boat and caravan. The address of William’s home was inserted, and it was noted to be freehold property owned solely by William. Its estimated value was $250,000.

15. [145]

    The asset described as bank accounts, bonds and interest-bearing investments was described as an NSWTG Trust Account with a current balance of $1,030,000. The car was noted to be a Ford Falcon with a current value of $20,000.

16. [146]

    The questionnaire recorded that William had an accountant who was named as Mr Joseph.

17. [147]

    The questionnaire recorded that William was single and had no children.

18. [148]

    In the part of the questionnaire under the heading "Distribution" there was a note that William wished to make money gifts to more than one person. They were amounts of $100,000 to each of the plaintiffs, whose relationships with the deceased was described as "my cousin". $100,000 was also to be given to Faye Louise Kimber who was described as "my friend".

19. [149]

    The questionnaire recorded that William wished to give his real estate, personal effects and motorcar to Faye Louise Kimber.

20. [150]

    The questionnaire recorded that William wished to give the residue of his estate to Madeleine Rose Kimber-Bennett, who was described as "my friend's daughter", but if Maddie did not survive him, the residuary estate was to go to Faye.

21. [151]

    The questionnaire contained provisions dealing with "Overview of Interview". The questionnaire required the names of the persons who attended the interview with the testator to be named and their relationships stated, as well as "details of their input". Faye Kimber was described as "my friend", and her input as: "nil – only provided spellings and addresses for her and her daughter". Linda Kimber was described as: "my friend [Faye's mum]" and her input was “nil”. David Joseph was described as "my accountant" and his input was "nil".

22. [152]

    Affirmative answers were given to the question whether William gave "full information relating to personal details", "appropriate information relating to financial details" and "appropriate information relating to family".

23. [153]

    Ms Pascoe made a contemporaneous note under the heading "Execution Notes". The note was:

24. [154]

    Ms Pascoe said that she was at all times aware of the nature of the injuries suffered by William. She was aware that he lived in the community with his parents, and that he remained living independently in the family home after the death of his father. She was aware that, while William was unable to manage the corpus of his trust fund, he was able to manage his fortnightly allowance and to consider and make requests for additional expenditure from time to time.

25. [155]

    Ms Pascoe said that it was her view that, while William was not capable of managing the corpus of his trust fund, he was sufficiently capable of understanding its extent together with the task of making a will and the persons who were properly objects of his testamentary bounty and that he had capacity to make a will.

26. [156]

    Ms Pascoe said that she had Faye Kimber leave the room at the time the will was read and signed by William.

27. [157]

    She said that, from her experience dealing with William over an extended period, she had no reason to doubt that he lacked testamentary capacity. His instructions to her were rational and considered. He wanted to make provision for his friends and to make what he thought was proper provision for his remaining relations.

28. [158]

    Ms Pascoe also said that she believed that William had testamentary capacity at the time she witnessed his 21 December 2011 will.

29. [159]

    Senior counsel for the plaintiffs commenced his cross-examination of Ms Pascoe by asking questions about her knowledge of the principles that govern testamentary capacity. The following cross-examination took place between T 74.24 – T 77.15:

30. [160]

    Ms Pascoe agreed that, when William attended the Trustee's office for the meeting on 7 March 2016, and she told him that the amount in the trust fund was about $1.3 million not including the house or the car or the caravan, he did not appear to know how much money the Trustee was holding for him. Specifically, she said "Not until I said the amount, probably not" (T 77.49).

31. [161]

    Ms Pascoe said that she asked William something to the effect of whether he understood the nature and purpose of the will.

32. [162]

    Ms Pascoe accepted that William probably did not know the value of his trust fund until she told him that value on 7 March 2016.

33. [163]

    Ms Pascoe confirmed that she described Mr Joseph as William’s accountant because William described Mr Joseph as such.

34. [164]

    Ms Pascoe confirmed the presence of the members of the Kimber family and Mr Joseph while William was giving her instructions concerning the terms of his will. The following cross-examination then took place concerning the circumstances in which William signed his will at T 82.11 – T 82.39:

35. [165]

    Senior counsel cross-examined Ms Pascoe about the attention that she gave to the question of the deceased's testamentary capacity at T 83.11 – T 84.1:

36. [166]

    Questioned about the significance of the advice given by Dr Haines on 27 July 2010 that William could not manage a trust fund, Ms Pascoe replied at T 86.23 that William’s capacity to give a good discharge of his trust funds was "a different scenario than making a Will".

37. [167]

    Ms Pascoe accepted that on 21 July 2013 she made a file note in which she said in relation to the deceased's capacity to manage his financial affairs: "… Bill’s condition has not changed, and he would not be capable of giving a good legal discharge" and "… there appears little point in seeking further medical advice regarding his ability to manage large sums of money. Recommend that we deem him incapable of managing his inheritance from his father."

38. [168]

    Ms Pascoe accepted that, in an email made by her on 28 June 2012, she recorded that she did not think that William had the capacity to make a power of attorney.

39. [169]

    Ms Pascoe's cross-examination on the subject of the deceased's testamentary capacity ended as follows at T 99.29 – T 101.2:

40. [170]

    Ms Pascoe was a transparently honest witness. She became somewhat overwhelmed by the process of being cross-examined. However, she answered the questions put to her carefully and as fully as her recollection permitted.

Significance of the evidence of the Trust Officers

1. [171]

   Both Mr Lowe and Ms Pascoe were experienced Trust Officers, whose staple job for many years was will-making for clients of the Trustee. It may be that each of them had prepared a large number of relatively straightforward wills in uncontroversial circumstances. Their cross-examination did not explore whether they had ever had experience of would-be testators who they thought had doubtful testamentary capacity, and if they did have that experience, how they had dealt with the issue.

2. [172]

   Neither Mr Lowe nor Ms Pascoe gave sophisticated explanations of their understanding of the principles that govern testamentary capacity. Both had a reasonable basic understanding of the principles, and it may be that the relative simplicity of their explanations is attributable to the fact that they were lay will-makers and not qualified lawyers.

3. [173]

   It is also possible that they may not have had significant personal experience of dealing with would-be testators whose testamentary capacity was in real doubt, because such persons would be unlikely to choose, or be brought to, the Trustee for the purpose of the preparation of their wills.

4. [174]

   It may fairly be observed that the Trustee’s procedures, as reflected in the 2001 and 2016 versions of the pro forma instructions, were relatively simplistic, and not entirely in tune with contemporary approaches, as recommended by judges of this Court: see for example the judgment of Kunc J in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [107], [108], whose recommendations were suggested as “basic precautions”. However, the instructions provided by the Trustee did direct trust officers’ attention to the essential elements of testamentary capacity, in the sense of the issues that needed to be attended to, rather than the applicable legal principles.

5. [175]

   The questionnaire supplied by the Trustee that Ms Pascoe completed with William generally contained non-leading questions. Although Ms Pascoe interviewed William in the presence of Linda, Faye and Mr Joseph, she recorded that they had no input into the instructions given by William save that Faye “only provided spellings and addresses for her and her daughter”. William provided the other answers recorded in the questionnaire. That means he provided the estimated value of his home of $250,000. He provided information concerning the type and value of his car. He gave instructions to Ms Pascoe about his relationship with the plaintiffs and the amounts of the legacies he wished to give them, as well as the gifts that he wanted to make to Faye and Maddie.

6. [176]

   It should be acknowledged that the questionnaire did not include comprehensive prompts to the Trust Officer about exploring the client’s testamentary capacity. It required the Trust Officer to give yes or no answers to whether the client gave full information relating to personal details, appropriate information relating to financial details, and appropriate information relating to family. It also prompted the Trust Officer to address “family provision”, with a list of persons who may be able to make a claim, if not adequately provided for under the client’s will. It then included a question, requiring a yes or no answer: “Is there anyone in the above list who will not be adequately provided for in your Will?”

7. [177]

   Also, the entry in the questionnaire describing the relationship of Mr Joseph to William wrongly described Mr Joseph as “my accountant”. While this statement was wrong, I would not infer that William suffered from a delusion as to his true relationship with Mr Joseph. It is more likely that it was a ‘white lie’ to provide some assurance to Ms Pascoe as to why a person who would otherwise appear to be a total stranger to William was present during the interview.

8. [178]

   The Court could not give the opinions expressed by Mr Lowe and Ms Pascoe concerning William’s testamentary capacity the same weight as it could the opinions of experienced estate lawyers, who were well versed in the detail of the principles that govern testamentary capacity, and who had interviewed the testator on a basis specifically intended to explore the testator’s capacity to make the particular will that was made. However, it remains the fact that both Mr Lowe and Ms Pascoe were completely satisfied at the time they made the wills for which they were responsible that William had testamentary capacity. They both were unshaken in cross-examination on that issue.

9. [179]

   Both Trust Officers were entirely aware, at least in broad terms, that William had suffered serious brain damage. They fully understood that a consequence of William’s brain damage was that he was incapable of taking proper responsibility for the management of his trust fund. Ms Pascoe also understood that William lacked capacity to execute a power of attorney. In different ways, however, these actions involved long-term application, prudence and planning. That was more obviously so in the case of managing a fund worth over $1,000,000 for the balance of William’s life. In a different way, the making of a power of attorney also has a long-term element, as the appointment will continue until it is revoked, and requires an exercise of prudence in choosing the attorney.

10. [180]

    I consider that the real significance of the evidence of the two Trust Officers lies in what it says about William’s day to day intellectual competence. As I have noted above, William was not a person of general low-functioning intellectual capacity. He was a person of above-average intellectual capacity, whose cognitive functioning was largely destroyed in relation to specific attributes. The intellectual deficits from which William suffered have been described in the analysis set out above of the medical evidence produced for the purposes of his compensation claim. Put simply, that evidence focused on what William could not do, not on what he could do. While the reasons for the strong opinions formed by Mr Lowe and Ms Pascoe that William had testamentary capacity were not explored in detail, in the sense that they were not asked in a precise way why they comfortably were assured that William had testamentary capacity, I consider that their evidence is highly probative of the following facts: that William understood the purpose of making a will, that he understood the nature of the assets in his estate, that he understood the persons who had a reasonable expectation of sharing in his bounty, and that he was well-capable of making his own, independent decision as to how to share his estate between those persons in a manner of his own choosing. Insofar as the assets in William’s estate were concerned, it is immaterial that William would have had no idea how the Trustee had specifically invested his trust fund. It was sufficient that he knew that he had a home, a car and a trust fund worth over $1,000,000.

Consideration

1. [181]

   Luck deserted William when he was 16 years old, but in a small way, after his father died in 2014, and he was left without familial care, luck returned again and, as ‘Uncle Bill’, William found care and affection in the Kimber family. He found a boon friend in Faye, and, in his own words, “the daughter I never had” in Maddie.

2. [182]

   I consider that the most compelling evidence in the case is to be found in three photographs that became Exhibit D8. One of the photographs depicts William and Maddie with a woman who I infer is Faye. The three are gathered around a table after a meal. Each is wearing a paper Christmas hat of the type usually found in Christmas crackers. There are used Christmas crackers on the table amongst the detritus of the meal. Maddie is making a cheesy grin at the camera. Faye has her arm around both Maddie and William. William is leaning in towards Faye to get into the photo. The photo depicts a happy tableau such as would be observed in countless homes in this country every year. William is smiling contentedly.

3. [183]

   The second photograph appears to have been taken in the sitting room of Faye’s and Maddie’s home. Maddie is seen from behind reaching up to give William a cuddle. Six-year-old girls do not usually cuddle older men outside their family unwillingly. William has bent down to rest his head on Maddie’s hair and to give her a cuddle back with his arms around her. He is looking at the camera and smiling in a beatific way.

4. [184]

   The final photograph depicts Maddie in the foreground and William standing immediately behind her. Maddie is smiling at the camera and wearing a funny hat. William appears to have reached down to place his hand on Maddie’s back, although the photo does not show his hand. William is gazing down at Maddie. William, in my view, appears to have an adoring look in his eyes.

5. [185]

   It is possible that when William decided to change his testamentary arrangements and make his last will he was bewitched. If so, he was bewitched by Maddie. William will not have been the first man to have lost his heart to a little girl. The thing about little girls is that they may snare a man’s bounty without any conduct that could remotely be thought to be improper.

6. [186]

   It may be said about all of William’s wills how remarkably appropriate they were in their terms, given William’s life situation at the time that they were made. True it is that all of William’s wills bar the last one would probably have been made with his parents’, or father’s guidance. However, I consider that William’s 22 April 2016 will was a rational and a quite subtly reasoned response to his then current social circumstances. The plaintiffs had rarely seen or spoken to William after his father’s death. William is recorded as having said that the plaintiffs had not invited him to visit them. Yet he did not cut them out of his will. He gave them substantial legacies of $100,000 each. He is recorded as saying that he did that because he recalled that it was something his father would have wanted him to do. He had befriended and been befriended by members of the Kimber family. He had become partially dependent upon them for food and care. He had become a great friend of Faye. Yet he did not give the residue of his estate to her. He gave Faye the same $100,000 legacy that he had given the plaintiffs, which would have reflected Faye’s need for living money. He also gave her his home as she was living in Linda’s home. But his greatest gift was to Maddie. These testamentary arrangements were entirely in tune with the reality of the last years of William’s life.

7. [187]

   So far as the issue of testamentary capacity is concerned, the classic expression of the relevant principles was given in the following terms by Cockburn LCJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

8. [188]

   William had formed his own view that he wished to change his testamentary arrangements as a result of his changed family circumstances, which led him to request from Ms Pascoe a copy of his 21 December 2011 will. William was also subject to the process that took place at the Trustee’s office with Ms Pascoe on 22 April 2016. It is clear from those facts that William understood the nature of a will and what its effect would be on his death.

9. [189]

   The questionnaire filled out by Ms Pascoe proves that William understood the extent of the property of which he was disposing. The questionnaire recorded that property in detail as a result of Ms Pascoe taking William through a list of all of the types of property that he may have had. There is no suggestion in the evidence that William lacked short-term memory sufficient to enable him to keep in his mind during the whole will-making process what the nature and extent of his estate was.

10. [190]

    It is clear that William was able to comprehend and appreciate the claims to which he ought to give effect, because, in fact, William made gifts to all of the persons who may have had a call on his bounty, and he gave effect to each call in a manner and to an extent which was completely proportional to the strength of the expectations that each of the beneficiaries could reasonably have had. Far from any aspect of William’s testamentary dispositions raising the Court’s suspicions, they are in my view fair and rational in an exemplary way.

11. [191]

    While the Court cannot ignore the devastating consequences of the brain injury that William suffered when he was 16, the evidence of the consequences of that injury to William’s cognitive capacity and his personality does not require a finding that William lacked testamentary capacity on the Banks v Goodfellow test. The making of his last will did not require William to exercise the sustained application, foresight, prudence and ability to plan ahead of which he had been deprived by his brain injury. Knowing of his declining health, he only needed to understand the need to properly weigh the claims of the persons who had a call on his estate. That is something that could be done in the present using the residual cognitive abilities of a person of above average intelligence. Ample proof of William’s cognitive capacity to achieve a properly balanced and just testamentary disposition is found in the fact that that is exactly what he achieved.

12. [192]

    The plaintiffs did not press their pleaded claims that William did not know and approve of the terms of his will and that he exercised the will under undue influence with any vigour. I am satisfied that the process by which the terms of the will were composed by Ms Pascoe going through his assets seriatim, and then asking William what types and amounts of gifts he wished to make, by reference to the list in the questionnaire, is strong evidence that at the time of making his will William understood the effect of its terms. The evidence was that William was able to read. Ms Pascoe recorded in her execution notes: “Faye left the room when Bill read his Will and he told me that he was very happy with the Will and didn’t need any other changes.” There was no evidence that William lacked intelligence. The will was clearly and sequentially set out. There is no reason to doubt William’s recorded statement that, after having read the will, he was very happy with it.

13. [193]

    Finally, I reject the claim, if it be still pressed, that William executed the 22 April 2016 will under undue influence, as that concept is understood in probate law. It is sufficient to note that undue influence in probate requires proof by the party asserting it that the testator’s will was overborne by some process tantamount to coercion, depending on the circumstances in which the testator was influenced to make the will. It is not necessary for the Court to examine the legal principles that govern undue influence in probate, as I consider that the plaintiffs made no attempt in their cross examination of the members of the Kimber family who gave evidence, or Ms Pascoe, to demonstrate that the 22 April 2016 will was made otherwise than as a result of William’s free and independent will.

14. [194]

    Consequently, I will make the following orders:

    1. (1)

       Order that the plaintiffs’ amended statement of claim, filed on 16 May 2018, be dismissed.

    2. (2)

       Order that Probate of the will of William Anthony Hickey dated 22 April 2016 in solemn form be granted to the cross claimant NSW Trustee & Guardian.

    3. (3)

       Order that further compliance with the probate rules be dispensed with.

    4. (4)

       Order that the matter be remitted to the Registry to complete the grant.

15. [195]

    The parties should advise my Associate within 14 days of any order for the costs of the proceedings to which they can agree, and if they do not agree, arrangements should be made for the relisting of the proceedings to deal with the issue of costs.