Chant v Curcuruto; Chant v Curcuruto

HIS HONOUR: About 50 years ago, in In the Estate of Muirhead, Deceased [1971] P 263, Cairns J wrote, at 265:

More recently, in Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote, at [9]:

These are the reasons for judgment following the hearing of two separate probate proceedings, listed to be heard consecutively, each involving a different will-maker, namely Kenneth Charles Shepherd (referred to as “Ken” in the evidence), who was born in December 1928 and who died 13 October 2017, aged almost 89 years; and his wife, Irene Gladys Shepherd, who was born in May 1923, aged 94 years, and who died on 27 October 2017.

Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the will-makers by his, or her, first name, so as to avoid confusion. For the same reasons, I shall refer to the parties in the same way, although, when appropriate, I shall refer to them as “the Plaintiffs” or “the Defendants”.

The essence of the two proceedings, in a summary form, concerns the validity of a Will made by Ken, and one made by Irene, in March or April 2017 and the devolution of his, and her, assets, under each of those wills. Each Will, propounded by the Plaintiffs, bears the typewritten date 27 March 2017, but the undisputed evidence of each of the attesting witnesses is that each Will was signed on about 1 April 2017. I shall refer to each of these Wills, although there is some dispute about its validity, as “Ken’s 2017 Will” and “Irene’s 2017 Will” respectively, without any prejudgment as to its validity, and only for convenience.

The Plaintiffs are Brian Foster Chant (aka Karen Chant) and Jeffrey Lee. (Hereafter, I shall address the first Plaintiff, who is a transgender woman, using the first name, Karen, gender-specific title where necessary (Ms) and the gender terminology (she, her), that counsel for the Plaintiffs confirmed should be used: Tcpt, 2 February 2021, p 01(49) – 02(11). I also refer to the Equality before the Law Bench Book, Chapter 9, published by the Judicial Commission of New South Wales.)

The Plaintiffs sought Probate in solemn form of Ken’s 2017 Will in the proceedings bearing the proceedings number 2018/117875 (Ken’s proceedings). The original of Ken’s 2017 Will was tendered and marked Ex KSA in those proceedings.

The Plaintiffs sought Probate in solemn form of Irene’s 2017 Will in proceedings bearing the proceedings number 2018/122543 (Irene’s proceedings). The original of Irene’s 2017 Will was tendered and marked Ex ISA.

The Defendants/Cross-Claimants in each of the proceedings are Stephen (Steve) Paul Curcuruto and Catherine (Cathie) Clare Curcuruto, who were neighbours of Ken and Irene for many years. They invited the Court to dismiss each of the claims for Probate made by the Plaintiffs upon the basis that each of the 2017 Wills was invalid on grounds that (a) Ken and Irene, respectively, each lacked testamentary capacity; (b) each of Ken and Irene did not know and approve the contents of his, and her, Will, respectively; and (c) “the Plaintiffs were so involved in the preparation and execution of the Will, which gave the whole estate to them after the death of the Deceased’s spouse, as to eliminate, or decisively impinge against, the righteousness of the Will”.

(The basis of the contest referred to in (c) above, relates to what has been described, in probate law, as the doctrine commonly invoked by the use of the expression “suspicious circumstances”: Tcpt, 2 February 2021, p 03(17) – p 04(06). The doctrine was referred to in the following passage, written by a'Beckett J, in In re Nickson, deceased [1916] VLR 274 at 281:

His Honour also noted, at 281, that the “righteousness of the transaction” did not require that the will be a wise and just one but that “there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it”. That approach was approved by Burchett AJ in Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600 at [5]. I shall set out the principles in more detail later in these reasons.

For their part, the Defendants propounded a Will made by each of Ken and Irene on 21 May 2015. I shall refer to each of these Wills, respectively, as Ken’s 2015 Will and Irene’s 2015 Will, again, for convenience.

The original of Ken’s 2015 Will was tendered and marked Ex KS1 in Ken’s proceedings. The original of Irene’s 2015 Will was tendered and marked Ex IS1 in Irene’s proceedings. (This avoided the need to consider any question that, absent the original Will in each case, it was to be presumed that each of the 2015 Wills had been revoked by Ken, or by Irene, respectively, during his, and her, lifetime.)

Although, initially, in the first amended Statement of Claim, Karen and Jeffrey disputed the validity of Ken’s 2015 Will, and of Irene’s 2015 Will, they omitted the assertions, as to alleged invalidity, in their further amended Statement of Claim. On 18 June 2020, when the proceedings were listed for hearing, the Court noted, in Ken’s proceedings, and in Irene’s proceedings, that:

At the commencement of the hearings, the Court confirmed with counsel that there was no dispute that each of the 2015 Wills is a valid, and duly executed, Will, and that the only issue, in respect of each, was whether it was revoked by Ken’s 2017 Will or Irene’s 2017 Will: Tcpt, 2 February 2021, p 02(49) - 03(7).

Although the parties agreed, the Court, independently, must be satisfied of the due execution of each of the 2015 Wills. As will be read, the requirements of testamentary capacity, and of knowledge and approval, have been satisfied in relation to each of the 2015 Wills. Thus, if Karen and Jeffrey did not succeed in establishing the validity of Ken’s 2017 Will or of Irene’s 2017 Will, respectively, there will be a grant of Probate, in solemn form, of Ken’s 2015 Will and of Irene’s 2015 Will, respectively. (Of course, it was possible that only Ken’s 2017 Will, or only Irene’s 2017 Will, would be found to be valid.)

I shall return to the contents of each Will, in more detail, in due course. However, so it is clear, from the outset, the validity of Ken’s 2017 Will remains relevant, even though the principal disposition of his whole estate in both of his Wills is the same, namely solely to Irene, because Clause 3 of Ken’s 2017 Will provides that for any gift made to a person “who does not survive me for a period of 30 days the gift is to be treated as if that person died before me”. Irene died within 30 days of Ken’s death. Therefore, the Clause dealing with substitute beneficiaries in Ken’s 2017 Will takes effect if it is his last valid Will. The substitute beneficiaries named in that Clause are different from the substitute beneficiaries named in Ken’s 2015 Will.

Both Ken’s and Irene’s proceedings were initially listed for concurrent hearing, for 6 days, commencing on 2 February 2021. (As it turned out, the hearing lasted almost 12 days.) The order for a concurrent hearing was made without objection of the parties and in reliance upon Uniform Civil Procedure Rules 2005 (NSW) r 2.1, which provides that the Court “at any time, and from time to time, may give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings”. In addition, UCPR r 28.5(c) provides that if several proceedings are pending in the Court and it appears to the Court that “it is desirable to make an order under this rule, the Court may order those proceedings to be consolidated, or to be tried at the same time or one immediately after another…”.

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

For those reasons, it was not only “desirable”, but also “convenient”, to make an order that the proceedings be heard consecutively. At the commencement of the hearing, without objection, the following order was made in each of Ken’s proceedings, and Irene’s proceedings:

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

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

Whilst there was some relatively minor argument regarding documents produced under subpoena, and a claim for privilege made on behalf of Karen and Jeffrey in relation to certain documents, which were able to be dealt with reasonably expeditiously, the hearing proceeded smoothly.

I commend the co-operative approach adopted by the legal representatives of the parties, which ensured that the convenience of the witnesses, and the Court, was accommodated. The Court was greatly assisted by that approach, and also by the submissions made at the conclusion of the hearing.

The Plaintiffs filed the Statement of Claim in Ken’s proceedings on 13 April 2018, and one in Irene’s proceedings on 18 April 2018. They filed an amended Statement of Claim, in each of Ken’s, and Irene’s, proceedings, on 11 July 2019, and a further amended Statement of Claim in each of the proceedings on 1 June 2020. The last document was the final emendation of their claims in each of the proceedings. (The Plaintiffs’ pleadings in each matter were essentially in the same form.)

The Defendants filed a Defence and Statement of Cross-Claim in each of Ken’s, and Irene’s, proceedings, on 7 June 2018; a Defence to the amended Statement of Claim, in each of the proceedings, on 1 August 2019; and a Defence to the further amended Statement of Claim, in each of the proceedings, on 10 June 2020. The last document was the final emendation of their defence to the Plaintiffs’ claims in each of the proceedings. (The pleadings in each matter were essentially in the same form.)

Although not admitted in the pleadings, I am satisfied that Ken’s 2017 Will, and Irene’s 2017 Will, satisfied the statutory requirements of s 6 of the Succession Act 2006 (NSW) (the Act), relating to how a will should be executed, namely that (a) it was in writing and signed by Ken, and by Irene, respectively, in the presence of, and at the direction, of each of them; (b) the signature was made by Ken and by Irene, respectively, in the presence of two or more witnesses present at the same time, and (c) two of those witnesses attested and signed the Wills in the presence of Ken and of Irene. In other words, each of the 2017 Wills was duly executed.

However, before each of the 2017 Wills may be admitted to probate, the Court must also be satisfied of the will-maker’s testamentary capacity and that each Will did truly represent his, and her, testamentary intentions respectively; or, “to use the traditional phrase, that the testator ‘knew and approved its contents’”: Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 at [59], affirmed in Marley v Rawlings [2015] AC 129; [2014] UKSC 2 at [16] and [43]. I have earlier referred to the need, if appropriate, for the Plaintiffs to also establish the righteousness of the transaction.

In the Defence to the further amended Statement of Claim filed in Ken’s proceedings, the following particulars, going to Ken’s lack of testamentary capacity, were provided:

No particulars of Ken’s lack of knowledge and approval were included.

In the Defence to the further amended Statement of Claim filed in Irene’s proceedings, identical particulars going to Irene’s lack of testamentary capacity were provided. Similarly, no particulars of Irene’s lack of knowledge and approval were included.

The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge to each of Ken’s 2017 Will and to Irene’s 2017 Will; that, by the evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the Plaintiffs, as the propounders of each 2017 Will, to prove, affirmatively, the validity of each Will. (There was no dispute by counsel for Karen and Jeffrey about this.)

The Plaintiffs filed a Defence to the Statement of Cross-Claim in each of the proceedings on 12 July 2018. However, as stated, the parties agreed that in the event the Court was not satisfied of the validity of either, or both, of the 2017 Wills, the relief sought by the Defendants in respect of that 2015 Will, should in relation to the relevant Will, be granted to them.

I am satisfied that each of Ken’s 2015 Will, and Irene’s 2015 Will, had been duly executed in accordance with s 6 of the Act. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of Ken, and of Irene, was read, in order to obtain a grant of Probate in solemn form of each Will: Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422].

There were a large number of affidavits read in one, or other, of the proceedings. Mercifully, there were not too many objections to the affidavits. In particular, no objection was taken to the oral statements said to have been made by the deceased to one, or other, of the witnesses who gave evidence of the conversation. (I shall refer to this aspect later in these reasons.)

Yet, as in most probate disputes, the personality, state of mind, desires, and prejudices, of the central persons, namely, in these proceedings, Ken and Irene; the relationship with persons for whom he, or she, did or did not provide; and the reasons for the change in testamentary dispositions, are all significant matters that the Court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the relevant will-maker, most of those matters can only be examined by way of second-hand, and often, partisan, evidence, and may be unavailable, or far less reliable, due to the passage of time: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51] (Poon J).

It is also useful to remember another passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75]:

As Scarman J, graphically, put it in In the Estate of Fuld, deceased (No 3) [1968] P 675, at 714; "when all is dark, it is dangerous for a court to claim that it can see the light". When all is uncertain, and murky, the observation applies with almost equal force.

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

Because of the number of witnesses who feature in the evidence, it is next convenient to identify each, and the role that she, and he, respectively, played in the life of Ken and of Irene, and by which persons each witness was called.

I shall also refer to the medical expert, who assessed each of Ken and Irene. It is not necessary to refer, here, to any other medical practitioner who was not a witness in the case, even though his, or her, reports have been included in the two folders of medical documents tendered, without objection, as Ex J2. Unless otherwise stated, it should be assumed that each witness was cross-examined.

Karen is Irene’s younger sibling. She is, or was, an entertainer. Jeffrey is described by Karen as her “life partner”. They have been in a relationship since about 1964. (In the case of Karen, it was necessary to hear her evidence over two days, as she became tired late in the afternoon of the first day of her cross-examination.) Jeffrey was not related by blood, to either Ken or Irene, although he gave evidence of having met them in about 1968 and of the close affinity that he had with each of them. Each is a lay witness who receives a significant benefit under Ken’s 2017 Will and under Irene’s 2017 Will. Jeffrey is a person who had never been a beneficiary named in any prior Will of either Ken or of Irene.

Priscilla Michelle Blackadder is an Australian lawyer who was admitted to practice on 13 February 2009. She was called to the Bar, and practised as a barrister, in Sydney, between 2011 and 2016. She then returned to practice as a solicitor. Between about 13 February 2017 until 31 January 2018, she was employed as “Special Counsel – Litigation” by Emprise Legal, a firm of solicitors, then conducting practise at Liverpool, Sydney. At the date of the hearing, Ms Blackadder was practising as a solicitor with another firm of solicitors in Sydney.

Whilst employed by Emprise Legal, she had the day to day carriage of two matters for Ken and Irene, one being in relation to the preparation of Powers of Attorney and Enduring Guardianship documents, and the other, being in relation to the preparation and drafting of Ken’s 2017 Will and Irene’s 2017 Will.

Ms Blackadder did not know either Ken, or Irene, before the events that are the subject of these proceedings and she had never acted for him, her, or them professionally. She was not present when each of Ken’s 2017 Will, and Irene’s 2017 Will was executed.

Lynn Baird is described in her affidavits as a “Support Worker”. She is one of the two attesting witnesses to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. She is the niece of Ross Gordon, the other attesting witness to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. Her affidavit of attesting witness was extremely short and was limited only to confirmation of due execution. She did not give evidence, otherwise, of the events that had occurred on the day each of the 2017 Wills was signed. She was not cross-examined.

Ross Gordon is one of the two attesting witnesses to Ken’s signature on his 2017 Will and to Irene’s signature on her 2017 Will. He is the uncle of Lynn Baird. He was described as an “acquaintance” of Ken and Irene and had known them before the events that were said to have occurred on 1 April 2017. He was a closer friend of Karen and Jeffrey. He swore two affidavits, one being a formal affidavit of attesting witness and the other being one in which he described, in more detail, the events that had occurred on the day each of the 2017 Wills was signed.

Damian King is described in his affidavits as a “Fitter Machinist”. He is married to Tracie King. They were neighbours of Ken and Irene from about 2007 until Ken and Irene moved out of their property, “Southdowns”, situated on the Illawarra Highway, Moss Vale, in about February 2017. He had met them in about 2008. He met the Defendants in about 2010.

Tracie King is described in her affidavits as a “Library Customer Service Officer”. She stated in her first affidavit that she “has not been promised anything by anyone for giving … evidence” and that she provides her affidavit “completely devoid of any self-interest and without any hope of self-gain". She had met Ken and Irene in about 2004 and gave evidence of the close relationship that she had with each of them, including conversations that she had with Irene about her, and Ken’s, Wills.

It was Mrs King who, on about 8 March 2017, had first contacted Ms Blackadder, via Facebook Messenger, about Ken and Irene. Mrs King said that she had met the Defendants in about 2011.

Jean Cabot is described in her affidavit as a “Property Manager”. She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 15 years. She gave evidence of her dealings with them over the years, and also of her dealings with them and Steve and Cathie in February 2016. She was not cross-examined.

Sandy Dawson is described in her affidavit as a “Property Manager”. She had managed certain real estate investments held by Ken and Irene in Bellevue Street, Goulburn for about 18 years. She gave evidence of a conversation with Steve in “about 2015” and with Ken and Irene and Steve and Cathie in February 2016. She was not cross-examined.

Azize Karaki is a paralegal in the employ of Mason Parkes Lawyers, the solicitors on the record for the Plaintiffs. Her evidence was limited to what she wrote in an affidavit of service. She was not cross-examined.

John McIntosh is the solicitor on the record for Karen and Jeffrey in both Ken’s and Irene’s proceedings and has had the day-to-day conduct thereof. He became a director of Emprise Legal, the effective predecessor of Mason Parkes Lawyers, in about December 2013. He ceased being a director at Emprise Legal in about August 2018, and became a partner of Mason Parkes Lawyers in September 2018: Tcpt, 9 February 2021, p 385(23-31). (He stated that he was admitted as a solicitor in August 2017.)

An affidavit sworn by Mr McIntosh on 11 December 2018 (not referred to as one to be relied upon), was read on 9 February 2021, the fifth day of the hearing. The affidavit stated the steps taken to have Evanna Kamal, (who was described by Ms Blackadder as a paralegal), give evidence in each of the proceedings.

Each of Steve and Cathie gave evidence. They live on a farm which is on the other side of the main road, and about one kilometre away, from “Southdowns”. They had been neighbours and close friends of Irene and Ken for many years. Steve had known Irene and Ken since childhood.

David James Cummins is an Australian lawyer who was admitted to practice on 11 February 1972. He had been a partner at Wilkinson Throsby & Edwards, Solicitors, in Bowral since 1973. A substantial part of his practice related to the preparation of Wills, Powers of Attorney and Appointments of Guardian. Mr Cummins became a witness following orders of Lindsay J (Tcpt, 10 February 2021, p 487(03-04)) made on 21 October 2019, that he provide an affidavit deposing the circumstances under which the 2015 Will of each of Ken and Irene was made.

Mr Cummins had acted for Ken and Irene since about 1992 and he had drafted a number of his, and her, Wills; including Ken’s 2015 Will and Irene’s 2015 Will. He was also one of the two attesting witnesses to Ken’s signature on his 2015 Will, and to Irene’s signature, on her 2015 Will. (There were 19 Wills of both Ken and Irene made in between 1992 and 2015. The Wills were always executed on the same date and were, in each case, mirror Wills.) Mr Cummins had also acted for Ken and Irene in relation to other transactions, including conveyancing transactions.

Natalie Maree Sommer is described in her affidavits as a “Secretary”. She is one of the two attesting witnesses to Ken’s signature on his 2015 Will and to Irene’s signature on her 2015 Will. She was not cross-examined.

Sylvia Curcuruto is the mother of Steve and the mother-in-law of Cathie. She had known Ken and Irene for about 40 years. She gave evidence of her relationship with Ken and Irene over some of those years.

Sylvia died prior to the hearing. Although objection was taken to the whole of her affidavit upon the basis that she was not available for cross-examination, it was not disputed that an affidavit may be used if the deponent is unavailable for cross-examination because she, or he, is dead: UCPR r 35.2(3). In the circumstances, I permitted the affidavit to be read, remembering that affidavit evidence, however good, which for whatever reason, is not subject to cross-examination when cross-examination is required, will always be discounted as appropriate if the affidavit is used without cross-examination. The degree to which it will be discounted may depend on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O'Neil, Deceased [1972] VR 327 at 333 (Anderson J); Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 at [5] (Hamilton J); Fulton v Fulton [2014] NSWSC 619 at [111]. I shall weigh her evidence, with the other evidence, remembering that she has not been cross-examined.

Denise Maree McKibbin is described in her affidavit as a “Carer”. She met Ken and Irene, first, in early April 2015, when she was the partner and carer of John Curcuruto, the older brother of Steve. They had kept in contact with Ken and Irene until the death of each.

Judith-Ann Owens is described in her affidavit as a “Carer”. She had known Ken and Irene from her childhood and had kept in contact with them until the death of each.

Dr John Graham Barnett is a registered Medical Practitioner. He has been in medical practice for over 50 years, initially in general practice. He was admitted as a fellow of the Royal College of Physicians of Edinburgh in 1994 and was given specialist recognition by Medicare as a Specialist Geriatrician in 1999.

Between 2001 and 2017, Dr Barnett worked at the Psychogeriatric Unit at Kenmore Hospital, Goulburn as a Visiting Geriatrician. For 11 years from 2007, he had worked at Bowral and District Hospital as a Staff Specialist in Geriatric Medicine, involved with in-patient and out-patient assessment. In 2019, he was a Clinical Associate Professor at the University of Wollongong and the sole specialist geriatrician in the Southern Highlands of New South Wales.

Alice Dingle is a paralegal in the employ of Teece Hodgson and Ward, the solicitors on the record for the Defendants. She affirmed two affidavits on 11 March 2019 in which she gave evidence of service on affected persons. She was not cross-examined.

I shall set out the evidence of each, and my impression of each of the witnesses and the reliance that I am able to place upon that evidence later in these reasons.

None of the witnesses painted differing pictures of Ken and Irene, although it is clear that he, and she, had very different personalities.

Ken, consistently, was described in the evidence as a relatively mild and timid person who did not speak much compared with Irene, who all of the witnesses, who knew them, considered to be the more dominant partner in the marriage.

Irene’s controlling personality was revealed in some of the evidence, particularly the evidence of Mr Gordon. It seems that Irene was not someone to be trifled with, as demonstrated by the number of different Wills that were made in which beneficiaries changed. A number of examples of her conduct were given in the evidence. She knew her mind and found it difficult to brook any disagreement. On many issues, she made her views clear to Ken.

Irene also did not like going to, or having to deal with, doctors (having been in very good health throughout her life until the events to which reference will be made); she prided herself on not having to take medications; she did not want strangers on “Southdowns” and was wary of them; and she rejected the possibility of having meals prepared for her and Ken and delivered to them, as well as refusing “a home care service option” (home help from a third party), saying that she did not want anyone in the home, because she and Ken “did not want, or need, anyone else”: Tcpt, 18 February 2021, p 807(26-40); Tcpt 18 February 2021 p 843 – 844.

There was a large amount of evidence given about the outward behaviour of each of Ken and Irene, said to have been observed by a number of witnesses. In considering that evidence, I have borne in mind that the evidence of such outward behaviour is not always reliable. In this regard, Briggs J in Re Key [2010] 1 WLR 2020 at [8] observed that:

Because of submissions that were made, it is necessary, next, to identify persons who were not called as witnesses by the Plaintiffs and documents that were not produced by them.

As a matter of general principle, the unexplained failure by a party to call a witness may, in appropriate circumstances, give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.

In Jones v Dunkel (1959) 101 CLR 298, Kitto J observed, at 308, that:

Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384–385; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.

In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party rather than the other; (ii) the evidence would elucidate a particular matter; and (iii) the absence is unexplained.

Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party’s case. The failure cannot fill gaps in the evidence, or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.

These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [78] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).

Also, as has recently been written by Rees J in the matter of Pacific Springs Pty Limited [2020] NSWSC 1240, at [139], the failure to produce documents where the plaintiffs might be expected to be in possession of documents to corroborate their account:

In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]:

In Coshott v Prentice (2014) 221 FCR 450 at 469; [2014] FCAFC 88, the Court held, at [81], that:

I have earlier referred to Ms Kamal, a paralegal employed by Emprise Legal, and the person who accompanied Ms Blackadder on each of the two occasions that she met with Ken and Irene. Furthermore, Ms Kamal was said to have been present during all of the conversations that Ms Blackadder had with Ken and Irene on each occasion that she met them. In addition, as some of the emails and the diary notes of telephone calls make clear, Ms Kamal also spoke with Karen, or Jeffrey, at various times. Undoubtedly, she would have communicated with Ms Blackadder concerning the proposed new Wills.

Ms Blackadder gave evidence that, before the first meeting, she had instructed Ms Kamal to read the Law Society Guidelines on capacity. Therefore, like Ms Blackadder, Ms Kamal would have been alive to the question about Ken’s and Irene’s capacity to sign legal documents even before meeting them. Ms Blackadder also stated that she had requested Ms Kamal “to observe carefully and familiarise yourself with the Guidelines” and requested her “[I]f you have any concerns whilst observing in respect of capacity” to let her know immediately.

Ms Kamal had attended, with Ms Blackadder, at the conferences held with Karen, Jeffrey, and Mr and Mrs King, on 20 March 2017 shortly prior to the meeting with Ken and Irene. She was also present at the meeting with Ms Blackadder, and others, including Ken and Irene, on 27 March 2017.

In an email sent on 31 March 2017 to Ms Blackadder, Ms Kamal referred to the fact that Jeffrey had telephoned to say that Ken and Irene wanted to sign the Wills but that they were now wary of “female lawyers” and so it would be best if they were signed “when we weren't around”. Ms Blackadder said that she did not know what this comment meant and said she had not asked Ms Kamal what she had meant by it. There is also a cryptic 'ha ha' comment in an email that was unexplained.

Ms Kamal, described as a paralegal, was a witness who, one would think, could have provided evidence of some of the background facts and who could have given evidence of her observations of Ken, and of Irene, at each meeting with them. Presumably, she could have given evidence of, amongst other things, her observations of the interviews that had taken place with Ms Blackadder with Ken and with Irene. In other words, her evidence could have elucidated matters in dispute between the parties. She could also have given evidence of conversations that she had with Karen and/or Jeffrey.

In his affidavit, Mr McIntosh confirmed that Ms Kamal had been employed as a paralegal by Emprise Legal (now Mason Parkes Lawyers) from about 26 September 2016 to about 8 September 2017; that she had assisted Ms Blackadder with the execution of the new Power of Attorney, the Enduring Guardianship documents, and each of Ken’s 2017 Will and Irene’s 2017 Will. She had attended, with Ms Blackadder, upon Ken and Irene at Harbison Care, Burradoo Facility (Harbison Care) on 20 March 2017 and on 27 March 2017.

One might have expected Ms Kamal to be called by Karen and Jeffrey rather than by Steve and Cathie.

Counsel for Karen and Jeffrey relied upon the evidence given by Mr McIntosh, to which I have referred, asserting that Jones v Dunkel did not apply. He also stated that he and the firm’s employees, at his direction, had attempted to obtain an affidavit from Ms Kamal but had been unsuccessful. He stated that on about 2 October 2018, he had instructed Ms Stephanie Martyn, an employed solicitor, to contact Ms Kamal and organise for her to attend a conference to discuss providing an affidavit in these proceedings. According to Mr McIntosh, a conference was arranged for 11 October 2018, but Ms Kamal was said to have cancelled the conference by email dated 10 October 2018. Ms Kamal was said to have confirmed that she would not be providing an affidavit in these proceedings.

Mr McIntosh went on to state that “all subsequent attempts to contact Ms Kamal were unsuccessful”. However, he did not identify the nature, or frequency, of any such attempts, but he did say that they had been conducted by a then employee, Ms Martyn.

Mr McIntosh also gave evidence in cross-examination of his role as a director, and then partner, at Emprise Legal/Mason Parkes from 2013; of having 24 years of experience in litigation; that he was involved in acting for Ken and Irene at this time; and that he had known, in March 2017, that in this matter "there was likely to be some form of [legal] challenge at some point in the future".

In cross-examination, Mr McIntosh was shown Ex D6, which consisted of two documents, one being a printout of Ms Kamal's Facebook page, and the other being a printout of her LinkedIn page. He identified the photograph of the person shown as Ms Kamal and he acknowledged that the pages showed that she lived in Sydney. It also identified her place of employment.

In answer to the questions from the Bench, Mr McIntosh confirmed what he had done to ascertain from Ms Martyn the steps she had taken to contact Ms Kamal subsequently, as were deposed to in his affidavit. He accepted that he had not made any attempts to contact Ms Martyn to provide an affidavit, in these proceedings, and he appreciated “that so far as his evidence was concerned, any steps taken to have Ms Kamal present at the hearing seemed to have ceased as at 10 October 2018”: Tcpt, 9 February 2021, p 401(04-13).

On 16 February 2021, being the eighth day of the hearing, counsel for the Plaintiffs stated that he wished to issue a subpoena to Ms Kamal to attend to give evidence and he sought leave to file in Court a notice of motion in which an order was sought for an abridgment of the time for service, being by way of substituted service, in relation to that subpoena.

Counsel submitted:

In addition, counsel acknowledged that Mr McIntosh had said, or agreed, that the evidence revealed that nothing had been done in relation to Ms Kamal since October 2018; that no explanation was provided for not having issued a subpoena to give evidence to Ms Kamal at least six months previously; and that Ms Kamal was not even aware that a subpoena to give evidence was being contemplated.

Counsel for Karen and Jeffrey confirmed that no indication of the nature of the evidence that Ms Kamal was expected to give had been provided to counsel for Steve and Cathie. Indeed, it appeared that he did not know what Ms Kamal might say as “We haven’t been able to have a conference with Ms Kamal. We haven’t made any contact at all”: Tcpt, 16 February 2021, p 596(13-14).

Before giving leave to file the notice of motion, which was not supported by an affidavit, I asked senior counsel for Steve and Cathie whether there was any objection to the notice of motion being filed and the relief sought. He said that there was and that:

It was pointed out that on a number of occasions during the course of the hearing, and well before 16 February 2021, senior counsel for Steve and Cathie had pointed to the failure of Karen and Jeffrey to call Ms Kamal.

In my view, the legal representatives of the Plaintiffs had sufficient time available to issue a subpoena to give evidence to Ms Kamal or to seek the leave of the Court to enable them to do so (after the time for putting on evidence had passed). There would have been a legitimate forensic purpose, having regard to the issues in the proceedings, for leave, then, to have been granted, albeit that it was sought to be issued and served after the close of the evidence. They did not take either step

In the circumstances, I was not satisfied that a proper explanation for the failure to issue a subpoena to give evidence to Ms Kamal had been given. I considered it was simply too late then, to permit a subpoena to give evidence to be issued, and that its principal purpose appeared to be (very late in the proceedings) to submit that any inference for the failure to call Ms Kamal as a witness should not be drawn.

In this regard, the Court must do what is just for both parties. I had regard to ss 56 to 60 of the Civil Procedure Act 2005 (NSW). Ken’s proceedings and Irene’s proceedings had been set down for hearing over 6 months before the hearing commenced, at which time the Court was informed that it was ready; it had been set down upon the basis that the hearing would proceed upon affidavits, with cross-examination; directions had been made previously for the service of the affidavits; the Court listed the matter for directions after it was set down, but before the hearing date, in order to make any other directions and to ensure that the hearing could proceed smoothly. No reasonable explanation was given for not having served a subpoena to give evidence upon Ms Kamal.

At the heart of the refusal to allow the notice of motion to be filed, and the subpoena to be issued, was the prejudice to Steve and Cathie, and the costs and delay that would follow if the application were permitted. From a case management point of view, it was not in the interests of the parties, or of the Court, for the application to be allowed.

For all of those reasons, I did not permit the proposed notice of motion to be filed or a subpoena to give evidence to be served.

Another witness who was not called by the Plaintiffs was Betty Boustani, a lawyer and the current solicitor on the record for Karen and Jeffrey in the proceedings. Although she had sworn an affidavit in the proceedings, the Court, was informed that the affidavit was not to be read as part of the case for the Plaintiffs: Tcpt, 2 February 2021, p 35(38) – p 36(02).

(I should mention that Ms Boustani was not referred to as a witness in the Trial Schedule provided to the Court some time before the hearing. However, her affidavit was identified in the list of affidavits sent to the Court upon which the Plaintiffs indicated they intended to rely.)

There was no explanation why Ms Boustani, the principal of the firm of solicitors, who was said to have “extensive Probate experience”, did not attend upon Ken and Irene, in circumstances where there appeared to be a question about the testamentary capacity of each of them and where it must have been clear that Ms Blackadder did not have such experience.

Another matter raised was the failure to explain why Ms Baird’s evidence was limited to her formal affidavit of attesting witness and why she had not given any evidence about the surrounding events that had occurred on 1 April 2017 whilst she was present. It was submitted that if she had nothing to say about the events, that could have been included in her formal affidavit.

The importance of the events surrounding the execution of Ken’s 2017 Will and Irene’s 2017 Will could not have escaped the attention of the legal representatives of the Plaintiffs. In the case of Mr McIntosh, and counsel who appeared for them at the hearing, each had been involved in the matter from about April 2017, that is to say, shortly after each of the 2017 Wills was executed.

Associate Professor Chanaka Wijeratne, who, I am aware, is a Consultant Psychiatrist, had prepared an Expert Report dated 29 November 2019, which was filed on 30 March 2020. He was referred to as a “Retrospective expert” in the Trial Schedule provided to the Court. However, his report was not relied upon as part of the case of Karen and Jeffrey.

Indeed, there was no evidence from any expert disputing the opinions expressed by Dr Barnett. Cathie and Steve submitted that the failure by Karen and Jeffrey to produce any expert medical evidence to challenge the conclusions of Dr Barnett, meant that a finding should be made that, having seen the report of Dr Barnett in February 2017, they had consciously rejected the opportunity to obtain their own expert assessments, whilst Ken and Irene were alive, as they knew any other expert would be likely to agree with the conclusions reached by Dr Barnett.

Whilst I do not think I should draw that conclusion, the failure by Karen and Jeffrey to obtain medical evidence at the relevant time, in circumstances where they were well aware of the medical opinion that had been obtained, is a relevant consideration in determining the question of testamentary capacity and whether Karen and Jeffrey have established the validity of each of Ken’s 2017 Will and Irene’s 2017 Will.

A number of documents were not produced by the solicitors acting for Karen and Jeffrey. In cross-examination, Mr McIntosh accepted that, despite a subpoena having been served upon Mason Parkes to produce all file notes recording conferences, no file notes of the conference between Ms Blackadder and Ms Kamal on 27 March 2017 had been produced: Tcpt, 9 February 2021, p 386(10-41). He maintained that the file note could not be located on the file despite search: Tcpt, 9 February 2021, p 386(44). He accepted that, whilst it was the firm’s procedure to keep a scanned copy of the file note, that did not occur in this case: Tcpt, 9 February 2021, p 387(26-31).

As will be read, on 20 March 2017, prior to meeting with Ken and Irene, Ms Blackadder and Ms Kamal met with Karen, Jeffrey and Mr and Mrs King at a Café in Bowral, before all went to the Harbison Care, where Ken and Irene were then living. Ms Blackadder had made notes of the meeting at the Café and had placed them in the Emprise Legal file. These notes were not produced, it being said that they were not found despite search: Tcpt, 3 February 2021, p 118(18-35).

However, Ms Blackadder’s original diary note of the 20 March 2017 meeting with Ken and Irene at Harbison Care was produced on the fourth day of the hearing: Tcpt, 9 February 2021, p 377(05-06). It will be necessary to refer to its contents later in these reasons.

On 27 March 2017, Ms Blackadder, Ms Kamal, Karen and Jeffrey, met with Ken and Irene at Harbison Care. It was at this meeting that Ms Blackadder is said to have provided the draft Wills to Ken and Irene. Ms Blackadder made notes of the meeting and had placed them in the Emprise Legal file. The notes said to have been made were also not found despite search.

The timesheets produced by Mason Parkes, and tendered as Ex D11, included other occasions when Ms Blackadder was shown as having spoken with Karen and Jeffrey, the first occasion being on 22 March 2017; then on 23 March 2017; and then when Ms Blackadder spoke with Jeffrey on 24 March 2017. Ms Blackadder said that she always kept notes of meetings, and had some notes of telephone calls. There are notes of only two telephone calls, and they were made by Ms Kamal; there are no notes of telephone calls to, or from, Ms Blackadder.

Mr McIntosh said that Ms Blackadder would take files out of the office to work on them at home, which might explain the missing documents, but she had said that she did not maintain the files and only saw them occasionally.

Steve and Cathie submitted that this lack of evidence should entitle the Court to draw inference that these documents, if produced, would not have assisted the case advanced by Karen and Jeffrey.

In relation to the witnesses who were not called, and the documents that were not produced, I draw the inference that each witness, and the contents of the documents not produced, would not have assisted the Plaintiffs’ case. The importance of each of the witnesses, and of the documents, could not have escaped the intention of the solicitors acting for them. The documents should have been carefully retained in view of the fact that the solicitors knew that "there was likely to be some form of [legal] challenge at some point in the future": Tcpt, 9 February 2021, p 396(29-30).

I bear these matters in mind in determining whether I am satisfied, on the balance of probabilities, that Karen and Jeffrey have established the validity of each of the 2017 Will of Ken and of Irene.

With that lengthy prologue, I turn now to the determination of the issues in dispute.

It will be necessary to examine the evidence bearing upon the instructions for, and the execution of, Ken’s 2017 Will and of Irene’s 2017 Will with some care. It is convenient to start, however, with some of the background facts (which I do not understand to be controversial). If any facts set out hereunder are controversial, I am satisfied that they have been established by the evidence relied upon in the proceedings.

Some of the facts, particularly facts about the early life of Ken and Irene, have been taken from the historical information provided in the medical records. (I have incorporated within the following facts, and elsewhere, facts that the parties agreed in a written document headed “Schedule of Agreed Facts”.)

I shall then turn to other facts that were the subject of dispute between the parties, but which will be referred to by reference to documents where that is possible.

Irene was born in May 1923 in Sydney. She was one of four children born to Leslie Chant and Stella Chant. Karen was born in December 1931. The other two children died at a young age.

Ken was born in December 1928 in Sydney. He worked for many years for his father who was an office retailer. He was a keen rugby league player. He and Irene moved to Moss Vale later in life, where they farmed sheep and later cattle. For a time, he ran Southdowns Caravan Park.

Ken was Irene’s second husband. They were married in 1952 and remained married to each other at the date of Ken’s death, 65 years later. It was not disputed that, during their marriage, they were completely devoted to one another and were virtually inseparable. There were no children of their marriage.

Steve’s parents were long-time friends of Ken and Irene. Ken and Irene had been included in many of the Curcuruto family celebrations since the 1990s. There is substantial evidence showing Ken and Irene attending at the Curcuruto family Christmases, birthdays, and holidays, over the years.

From about 2014 or 2015, Cathie started helping Irene and Ken by picking up groceries, collecting their mail and assisting them with the payment of their bills.

On 4 December 2014, Ken signed an Advance Care Directive, which had been prepared by Mr Cummins, in which Ken noted that he had appointed Irene as his enduring guardian and Steve and Cathie as substitute decision-makers on questions of end-of-life medical treatment: Ex J3/88-89.

On the same date, Irene signed an Advance Care Directive which had also been prepared by Mr Cummins, in which she noted that she had appointed Ken as her enduring guardian and Steve and Cathie as substitute decision-makers on questions of end-of-life medical treatment: Ex J3/90-91.

On 21 May 2015, Ken signed an Enduring Power of Attorney and an Appointment of Enduring Guardian, which had been prepared by Mr Cummins, in which Ken appointed Irene as his enduring guardian and Attorney and Steve and Cathie as his substitute enduring Attorneys and guardians. Irene accepted the appointment on 21 May 2015, and each of Steve and Cathie accepted his, and her, appointment, respectively on 1 June 2015: Ex J3/104-119.

On the same date, Irene signed an Enduring Power of Attorney and an Appointment of Enduring Guardian, which had been prepared by Mr Cummins, in which she appointed Ken as her enduring guardian and Attorney and Steve and Cathie as her substitute enduring Attorneys and guardians. Ken accepted the appointment on 21 May 2015, and each of the Defendants accepted his, and her, appointment, respectively on 1 June 2015: Ex J3/120-135.

Each of Ken and Irene signed an Acknowledgement of Advice received regarding the mutual enduring Powers of Attorney: Ex J3/136-138.

On 16 February 2016, Ken fell off a ladder and was admitted to Liverpool Hospital with multiple injuries.

On 4 February 2017, Irene fell and broke her leg.

On 5 February 2017, Irene was admitted into Southern Highlands Private Hospital. Ken went to live with Steve and Cathie whilst Irene was in hospital. Cathie would take Ken to visit Irene each day and he would spend the day with her.

On about 9 February 2017, Steve and Cathie provided financial and other information about Ken and Irene to John Cerniauskas, a financial planner, trading as CoVenture Wealth Management and CoVenture Aged Care Planning. A “Statement of Advice – Strategy Only” was provided to Ken and Irene “c/- Stephen and Catherine” and the covering letter commenced “Dear Stephen and Catherine”: Ex J3/387-489.

On 13 February 2017, Mrs King and Ken attended the St George Bank, where Mrs King was appointed a signatory to Ken’s and Irene’s bank accounts. They also visited David Cummins, who recorded that Ken stated that he “has been away up north” and that Irene was living “in an apartment, but that he did not know what it was called”: Ex J3/334.

On 21 February 2017, Cathie completed and signed a Resident Application Form to Harbison Care, on behalf of each of Ken and Irene: Ex J3/363-370.

On 23 February 2017, Ken and Irene were admitted to Harbison Care where they stayed for the remainder of their lives.

On 1 March 2017, Cathie sent an email to Karen and Jeffrey which was in the following terms (Ex J3/384):

A written email response, dated 2 March 2017, was sent by the Plaintiffs, but written by Jeffrey, probably after discussion with Karen, in the following terms (Ex J3/386):

Around 11 March 2017, Karen and Jeffrey returned to Australia from Thailand. They remained in Australia until mid-July 2017 and then returned to Thailand.

Between 8 March and 20 March 2017, there were at least 14 emails from Ms Blackadder to Mrs King, in relation to Ken and Irene, and more emails from Mrs King to Ms Blackadder. On 12 March 2017, Mrs King sent to Ms Blackadder a copy of Ken's 2015 Will.

On 17 March 2017, Ms Blackadder spent a total of 2.6 hours preparing documents for Ken and Irene. (It is clear that prior to this date, Ms Blackadder had not met, or taken any instructions, from Ken or from Irene.)

On 20 March 2017, Ms Blackadder attended upon Ken and Irene at Harbison Care for approximately 3 hours. At that conference, initial instructions were obtained from Ken and Irene for new Wills to be drafted. However, both of them wished to further consider specific gifts of personal effects which each wished to make.

Teece Hodgson & Ward, solicitors (instructed by Steve and Cathie) sent a letter dated 29 March 2017 to Emprise Legal (by email sent at 5:10 p.m. on 30 March 2017). The letter was not forwarded by Ms Blackadder or Ms Kamal to either Ken or Irene. Relevant parts of the letter stated (Ex J3/620-622):

On 1 May 2017, the NSW Civil and Administrative Tribunal (Guardianship Division) made financial management orders in respect of Ken and of Irene. The affairs of each were committed to the management of the NSW Trustee and Guardian. The Tribunal found that each was incapable of managing his, and her, financial affairs, respectively.

On 6 June 2017, the NSW Civil and Administrative Tribunal (Guardianship Division) made guardianship orders in respect of each of Ken and Irene. This was about 2 months after the 2017 Wills were signed.

As the two 2017 Wills are in the same terms, other than in respect of the identity of the “spouse” referred to, it is only necessary to set out the following summary of the relevant text of the Wills:

As the two 2015 Wills are in the same terms, other than in respect of the identity of the “spouse” referred to, it is only necessary to set out the following summary of the relevant parts of the Wills:

It can be seen from the above summary that Ken’s 2017 Will was very different to his 2015 Will and that Irene’s 2017 Will was very different to her 2015 Will. What is written about the even earlier Wills of each of Ken and Irene, will also demonstrate how different each of their 2017 Wills was compared with earlier Wills.

As earlier stated, there were 19 Wills made for Ken and Irene over the period between 1992 and 2015. Each of the Wills had been prepared by Mr Cummins. A copy of each of the Wills before the 2015 Wills, were included in a folder entitled “Court Book – Historic Wills”, which folder and its contents were tendered and marked Ex J1. They were said to be of “historic interest and for assistance in determining whether there was a general pattern to the testamentary intentions of” Ken and Irene: see Plaintiffs’ Preliminary Submissions dated 17 December 2020 at [7].

At the commencement of the hearing, a document headed “Summary Table of Wills”, summarising the dispositions in each of the historic Wills was tendered and included within Ex J1. Counsel confirmed that the document was an accurate summary of the dispositions made in each of the Wills: Tcpt, 8 February 2021, p 332(03–15). This document revealed that Karen (referred to as “Brian Chant”) was a substitute devisee of real property until the Will dated 9 November 2007. She had been a beneficiary in Wills made between 1992 and November 2007, but was not, thereafter, a beneficiary in any of the Wills dated May 2008, July 2011, October 2011, March 2012, July 2012, October 2013, December 2014 and in each of Ken’s 2015 Will and Irene’s 2015 Will.

Importantly, in not one of the historic Wills is Jeffrey named as an executor or as a beneficiary, primary or substituted. Also, in none of them, was there a gift of Ken’s, or Irene’s, whole estate to one beneficiary, or to one class of beneficiaries.

Cathie was not a beneficiary named in any Will prior to 2012, although Steve’s parents, Joseph and Sylvia Curcuruto, had been named as devisees of a share of real estate in each of the Wills made in June 2007, November 2007, and May 2008. Steve and Sylvia were devisees of a share in real estate in each of the Wills made in July 2011, October 2011, and March 2012. Steve and Cathie were however, devisees in the Wills made in July 2012, October 2013, and, as stated, in Ken’s 2015 Will and Irene’s 2015 Will.

The parties agreed that:

They also agreed that:

The parties provided the Court with an Agreed Schedule that set out the assets of Irene’s estate as at the date of the Schedule. I set out the terms of the Schedule:

The calculations set out above do not appear to be mathematically correct ($6,259,848) and ($4,959,848) respectively, but nothing turns on the value of the estate.

The Agreed Schedule also set out the assets of Ken’s estate as at the date of the Schedule:

(It can be seen that the only difference in value, in relation to each estate, relates to the total value of “Southdowns” (the difference being $1,300,000). The estate, in each case, is of significant value.)

In each proceeding, the Plaintiffs also sought an order that the “[c]osts of this application be borne out of the [respective] estate on an indemnity basis”. On the second day of the hearing, counsel for the Plaintiffs confirmed that, in the event the Plaintiffs were successful, they would consent to an order that the Defendants’ costs, calculated on the ordinary basis, should be paid out of the estates of Ken and Irene. It would be unnecessary to make any order for the Plaintiffs’ costs in that event, as they would receive the whole of each estate under each of the 2017 Wills.

Senior counsel for the Defendants stated in the event that Karen and Jeffrey were unsuccessful, that Steve and Cathie would seek an order that the costs should follow the event. He added, however, that there were a number of matters, which he foreshadowed, might be relevant to the questions how those costs should be calculated, and how they should be borne, including whether the legal practitioners of Karen and Jeffrey should be ordered to pay the costs: s 99 of the Civil Procedure Act 2005 (NSW).

In these circumstances, counsel requested that the costs of the proceedings not be dealt with, whatever the result of both proceedings, and that they should await submissions on costs being made: Tcpt, 3 February 2021, p 172(38) – 173(20); Tcpt, 18 March 2021, p 909(43-44). Naturally, I shall abide the request and not deal with costs in these reasons. However, I commend to the parties, once again, that if possible, further argument, with the obvious increase in costs, and the consequent delay in administering the estate, should be avoided.

In summary then, there are different results that could be reached, with different consequences as to how property would be held.

If each of Ken’s 2017 Will and Irene’s 2017 Will is valid, because Irene died 15 days after Ken and because of Clause 3 of Ken’s 2017 Will, his estate does not pass to Irene (other than jointly held property, which passes by survivorship). Rather, all of his property passes to Karen and Jeffrey as tenants in common in equal shares. Thus, Ken’s interest in “Southdowns” will pass to Karen and Jeffrey absolutely.

Under Irene’s 2017 Will, all of her property will also pass to Karen and Jeffrey as tenants in common, since they are the sole substitute beneficiaries of her estate, with the result that they will receive the whole of her interest in the Goulburn flats and her 50% interest, as tenants in common in “Southdowns”.

It follows that if both of the 2017 Wills are valid, Karen and Jeffrey will receive the whole of Ken’s, and the whole of Irene’s estate, absolutely, as tenants in common in equal shares.

If both of Ken’s 2017 Will and Irene’s 2017 Will are invalid, since the parties agreed that each of the 2015 Wills is valid, and because the Court is satisfied as to the validity of each, as Irene died 15 days after Ken and due to Clause 3 of Ken’s 2015 Will, his estate does not pass to Irene. Under Ken’s 2015 Will, the Goulburn flats will not pass to Paul McMullen and Paula McMullen, because that property was held as joint tenants and passed by survivorship to Irene on Ken’s death. Ken’s interest, as tenant in common in equal shares, in “Southdowns”, passes to Steve and Cathie as tenants in common in equal shares. The residue of Ken’s estate passes to Rodney Keyte and Kevin Owens as tenants in common in equal shares.

Under Irene’s 2015 Will, Paul McMullen and Paula McMullen will receive the whole of the Goulburn flats as tenants in common in equal shares; Irene’s interest as tenant in common in equal shares in “Southdowns” will pass to Steve and Cathie as tenants in common in equal shares, and the residue of her estate will pass to Rodney Keyte and Kevin Owens as tenants in common in equal shares.

It follows then that Paul McMullen and Paula McMullen receive the whole of the Goulburn flats, Steve and Cathie will receive the whole of “Southdowns”, and Rodney Keyte and Kevin Owens will receive the whole of the residue of both Ken’s, and of Irene's, estates.

In view of the conclusions to which I have come, it is unnecessary to consider what would occur if only one of Ken’s 2017 Will or Irene’s 2017 were valid.

It is next convenient to refer to the medical evidence relating to Ken. I shall summarise the evidence unless it is necessary to repeat the contents of a medical report verbatim. In this regard, there was a mixture of factual and opinion evidence relevant to both Ken (and Irene) contained in the medical evidence that was tendered.

At the outset, it is noteworthy to record that even with an assessment by a medical expert, the question of testamentary capacity, ultimately, is a question of fact for the trial judge, and lay evidence may equally be relevant: Croft v Sanders [2019] NSWCA 303 at [86] and [128] (White JA, Bathurst CJ and Gleeson JA agreeing). Expert medical evidence, or the opinion of an attesting witness, as to competency, on its own, is not decisive: Norris v Tuppen [1999] VSC 228 at [335] (Ashley J); Nicholson v Knaggs [2009] VSC 64 at [41] (Vickery J)).

Before proceeding further, I note that a reference to the Folstein MMSE is a reference to Folstein’s Mini-Mental State Examination, a standardised 30 point mini-mental state examination, which is a screening tool. The MMSE score provides some guidance in the assessment of capacity, although the test does not cover all of the matters that must be considered in assessing capacity, and cannot generally be used, on its own, for that purpose. It is not a complete mental status examination or a complete neuropsychological examination. Accordingly, it is regarded as having limitations as a tool for assessment of cognitive impairment and it does not test executive brain function.

As is also well-known, the MMSE is not designed to test testamentary capacity, but enables an assessment of global cognitive function by reference to a variety of different cognitive domains, including orientation to time and place, short and long-term memory, registration, attention and calculation, constructional ability, language, and the ability to understand and follow commands. None of those things directly enables an assessment of frontal, or executive, brain function, being the higher function for making decisions. The scores achieved may provide some guide, a low score being likely to raise questions.

The Rowland Universal Dementia Assessment Scale (RUDAS) is a reference to a short cognitive screening tool designed to minimise the effects of cultural learning and language diversity on the assessment of baseline cognitive performance. It assesses multiple cognitive domains including memory, praxis, language, judgement, drawing and body orientation.

In February 2008, Ken was diagnosed as suffering from Gleason 7 prostate cancer, which was being monitored conservatively. Ken informed Dr Raji Kooner, the Urological surgeon at St Vincent’s Clinic, (who provided a number of reports that were tendered), that he may have some degree of depression.

Over the following years, Ken was reviewed by Dr Kooner. On each review, Ken decided against surgical intervention and stated that he wished to continue to be monitored and attempt to manage his symptoms himself. Dr Kooner regarded his decision as a reasonable one.

In March 2016, with Dr Kooner, Ken proceeded “to a TURP procedure, right ureteric resection and a stent placement to assist with the draining…”: Ex J2/107 and 118. (TURP is the acronym for Transurethral resection of the prostate.)

In May 2013, Ken had a urinary tract ultrasound which revealed bilateral renal cysts.

In January 2014, Ken had an advanced basal cell carcinoma excised from the back of his left ear. In November 2014, a large ulcerated nodular lesion was found on the back of his right scalp and a smaller lesion was present on the front of the left scalp: Ex J2/14.

On 16 February 2016, Ken attended at, and was admitted to, Liverpool Hospital Emergency Department, having suffered multiple injuries as a result of having fallen backwards off a 3 metre height ladder onto the ground. He was unable to get up. An Adult Emergency Observation Chart, under the heading “Falls Risk Screen”, noted that he was not confused, disorientated or agitated: Ex J2/18.

During the course of his hospitalisation, Ken underwent a brain and a spine cervical CT scan, which revealed “no acute intra-cranial haemorrhage or surface collection”, that “[g]rey-white matter differentiation is preserved”, “no mid-line shift or mass effect”, and that “the ventricles and surface CSF spaces are within normal limits”. It also revealed “no fractures of the skull vault or visualised skull base” and “normal alignment of the cranio-cervical junction and of the cervical spine.” Severe degenerative disc disease and severe facet joint arthrosis, at multiple levels, was also observed: Ex J2/19.

In the Progress/Clinical Notes from Liverpool Hospital, dated 17 February 2016, there are a number of entries stating that Ken was observed to be “confused” or “pleasantly confused” or “slightly confused”. On 18 February 2016, it was noted that there had been evidence of “confusion, agitation and wandering”, “difficulty keeping track” and the “illogical flow of ideas”.

In a Final Report Discharge Referral dated 19 February 2016, under the heading “Cognitive Impairment”, the following appears at Ex J2/72:

Dr Heather McIntyre, a general medical practitioner at the Moss Vale Family Practice, met with Ken, for the first time, on 25 February 2016. In a letter dated 26 February 2016 (Ex J2/83) addressed to Dr Barnett, she noted, amongst other things, that:

Dr McIntyre sought Dr Barnett’s assessment and advice, on amongst other things, Ken’s “cognitive impairment”. Other evidence reveals that an out-patient appointment was made to visit Ken, but it was cancelled, with a fresh appointment being issued by Dr McIntyre on 28 April 2016.

Ken was seen by Dr Elizabeth Harper, the Staff Specialist in Geriatric Medicine at St Vincent’s Private Hospital, having been admitted by Dr Kooner “for treatment of his bladder and carcinoma prostate”. In a report dated 23 March 2016, sent by Dr Harper to Dr McIntyre (Ex J2/100-101), the following appears:

(Dr Barnett, in his oral evidence, accepted that bearing in mind his medical condition, the score of 17/30 was not surprising, and limited notice of the result can be taken: Tcpt, 10 February 2021, p 439(50)- 440(04); p 443(04-05))

Ken attended on Dr Barnett’s office on 16 June 2016. In a report dated 18 July 2016, addressed to Dr McIntyre, Dr Barnett noted at Ex J2/131:

As he said he would, Dr Barnett wrote a letter dated 22 July 2016 to the Roads and Maritime Services, in which he stated (Ex J2/132):

I next turn to Dr Barnett’s evidence, given in his affidavit made on 20 February 2019, and in cross-examination.

Dr Barnett stated in cross-examination that it was “difficult” to assess Ken’s mental state prior to Ken’s first examination on 16 June 2016 as Ken was “physically ill and in pain and on narcotic drugs to control his pain”: Tcpt, 10 February 2021, p 436(44-46). He stated that Ken was “showing some confusion” and “maybe there is dementia underlying it”: Tcpt, 10 February 2021, p 436(12-14).

Dr Barnett stated that he had made handwritten notes in the Progress Notes at the Hospital, at which each of Ken and Irene were patients, as well as in his own records after Ken moved to the Harbison Care. He stated that he had “recorded statements [Ken] had made and my observations”. Whilst he also stated that he did not have a highly detailed recollection of all of his consultations with Ken, he had referred to those documents, which he believed to be accurate, in preparing his affidavit.

Dr Barnett stated that when he saw Ken on 16 June 2016, he conducted the MMSE, “and he lost four points on orientation to time, three points on repetition, one point on spelling, and one point on phrasing, which gave a score of 21/30. This was a decline of 2 points from the RUDAS score (equivalent to MMSE) carried out in February 2016 at Liverpool Hospital”. Dr Barnett’s handwritten notes confirm “a diagnosis of vascular dementia, assessing the same, at that stage, as moderate”.

On 5 February 2017, Dr Barnett saw Ken whilst visiting Irene after her fall. He described Ken on this occasion as being distressed and unable to recall having met Dr Barnett previously. Ken was also unaware that Irene had a broken leg: Tcpt, 10 February 2021, p 447(40-43). (Dr Barnett accepted that it was possible that Ken had not yet been told that Irene had broken her leg: Tcpt, 10 February 2021, p 449(02-04).)

Dr Barnett assessed Ken again, on 17 February 2017, following receipt of a request from Mr Cummins “concerning the capacity of Ken and Irene to understand the nature and effect of legal transactions”. On that date, Ken scored 10/30 on the MMSE questions put to him by Dr Barnett.

Dr Barnett made handwritten notes (Ex J2/190) that included:

On the basis of his assessment on 17 February 2017, Dr Barnett reached the conclusion that Ken lacked capacity for general assessment and legal documentation, that is, signing a request for an ACAT assessment: Tcpt, 10 February 2021, p 460(40-47). He clarified, in cross-examination, that Ken lacked capacity “to care for himself” (Tcpt, 10 February 2021, p 462(11-12)) and to look after himself at home (Tcpt, 10 February 2021, p 462(19-21)).

In cross-examination, Dr Barnett also stated that he had asked Ken whether he was prepared to have a cognitive test and that he understood what a cognitive test was: Tcpt, 10 February 2021, p 453(25-32). He told Ken that the purpose of the assessment was to make proper arrangements for Ken’s and Irene’s care and to determine whether they were fit to live by themselves or not: Tcpt, 10 February 2021, p 454(09-14). Dr Barnett stated that Ken was “extremely anxious” during this attendance: Tcpt, 10 February 2021, p 453(50).

In cross-examination, Dr Barnett agreed that at the time of the 17 February 2017 assessment, Ken’s prostate problem would have been causing him bone pain, possible problems sleeping and feelings of weakness: Tcpt, 10 February 2021, p 456(09-11). He accepted that these factors may have affected Ken’s cognitive ability and that it was not unreasonable to say that the MMSE may not have produced a fair result due to the presence of these factors: Tcpt, 10 February 2021, p 456(15-26).

(The Plaintiffs pressed the distinction that, at this stage, Dr Barnett was purely tasked with assessing capacity in respect of an ACAT assessment and had not yet turned his mind to testamentary capacity. It was also submitted that the failure to tell Ken about Irene’s broken leg, initially, would have contributed to his distressed state. In oral submissions, the Plaintiffs drew my attention to the Court of Appeal’s decision in Carr v Homersham [2018] NSWCA 65 and in Drivas v Jakopovic [2019] NSWCA 218, in which it was noted that anxiety in respect of the administration of cognitive testing is a factor that can affect performance: Tcpt, 18 March 2021, p 874(46)- 875(05).)

On 14 March 2017, Dr Barnett received a referral for an assessment from Dr McIntyre, who requested advice on what would happen if Ken and Irene were to leave the nursing home and were considered not to be able to care for themselves.

On 21 March 2017, Dr Barnett attended Ken and Irene at the nursing home, in the presence of Mrs King. Dr Barnett partially completed a specialist geriatric assessment of Ken. He noted that Ken could not draw a clock face, was unable to recall three words, and that his presentation was consistent with a diagnosis of advanced dementia. Dr Barnett was unable to undertake a full MMSE assessment of Ken due to “Ken’s cognitive difficulties and Irene’s interjections”. However, Dr Barnett noted that his previous conclusions remained unchanged following this assessment. Dr Barnett made the following notes as part of his assessment (Ex J2/406):

On the same day, Dr Barnett wrote a letter to Dr McIntyre, in which he stated (Ex J2/404):

During cross-examination, when asked whether the assessment on 21 March 2017 was of any use, Dr Barnett stated “I can’t say that things were any worse, but certainly things were no better… he was much the same as when I saw him in hospital’: Tcpt, 10 February 2021, p 463(49)-464(02). Dr Barnett also stated that Ken’s “conversation had not improved [and] his short-term memory was poor”: Tcpt, 10 February 2021, p 464(05-06).

During cross-examination, Dr Barnett accepted that having Mrs King present during the partial assessment on 21 March 2017 would have been distracting for Ken: Tcpt, 10 February 2021, p 467(45)-468(01).

On 28 March 2017, Dr Barnett saw Ken again. On 15 April 2017, Dr Barnett sent a letter to Dr McIntyre concerning this visit, in which he stated Ex J2/419:

Dr Barnett next attended Ken on 30 May 2017. As there were no changes of note, Dr Barnett did not record an entry in the Nursing Home Progress Notes.

Dr Barnett again attended on Ken on 25 July 2017. He made the following notes in the computer system for the Nursing Home (Ex J2/456):

On 15 August 2017, Dr Barnett attended on Ken, following a referral from Dr Kooner. The following day, Dr Barnett sent a letter to Dr Kooner concerning this visit, in which he stated Ex (J2/458):

Dr Barnett had one further attendance with Ken on 22 August 2017.

In cross-examination, Dr Barnett stated that he had endeavoured to obtain a second opinion in relation to Ken, but was unable to do so: Tcpt, 10 February 2021, p 423(06-12). Dr Barnett stated that the reason he sought a second opinion was to “confirm [his] opinion”: Tcpt, 10 February 2021, p 423(50).

Dr Barnett was of the opinion that Ken had frontal lobe disease and that Ken had CT scanning done which showed extensive white matter degenerative change consistent with vascular dementia: Tcpt, 10 February 2021, p 425(16-20).

In cross-examination, Dr Barnett acknowledged that people with vascular dementia are capable of having lucid periods and that they “[decline] in step wise fashion so that they can be alright for a little while and then deteriorate”: Tcpt, 10 February 2021, p 425(46)-426(08). He also acknowledged that it was possible that Ken may have had lucid moments in periods when Dr Barnett did not see him: Tcpt, 10 February 2021, p 429(49)-430(02) and that it was possible that Ken could have had a lucid period after the date Dr Barnett had last seen him on 21 March 2017: Tcpt, 10 February 2021, p 474(36-38).

During cross-examination, Dr Barnett accepted that Ken’s cognitive function may also have been impacted by any ongoing effects of the delirium he had suffered in 2016, disorientation from changes to his living situation, and the influence that Irene had over him: Tcpt, 10 February 2021, p 428(01-48).

By the time Dr Barnett responded to the request from Wilkinson Throsby and Edwards, solicitors, received on 22 February 2017, he had formed the view that Ken did not have the mental capacity to be able to understand documents that he might be asked to sign, or enter into legal transactions.

In his professional opinion, based on his observations of Ken and his professional experience, Dr Barnett thought that it was reasonably likely that, in March and April 2017, although Ken may have known what a Will was, he would have been unlikely to appreciate the components of his estate, and the nature of the assets comprised in his estate.

In cross-examination, Dr Barnett answered that he had asked Ken questions about the components of his estate in June 2016, but had not asked him about this matter subsequently: Tcpt, 10 February 2021, p 469(04-18). He stated that he had “based [his] opinion on [Ken’s] short-term memory, which was obviously impaired. He was not orientated to time or place. His inability to recall three simple words, or answer questions backwards, he could not draw a clock face, which implies some…. construction or other frontal lobe difficulties. But it’s also just the general human observations of somebody who can’t answer questions and is quite ignorant of what’s going on” that had led him to his conclusion: Tcpt, 10 February 2021, p 469(37-44).

Dr Barnett also stated at Tcpt, 10 February 2021, p 469(46) - 470(01):

Dr Barnett also stated that “Ken showed little understanding of day to day things and so, therefore, I could not understand why they would possibly know what the nature of their assets were”: Tcpt, 10 February 2021, p 471(17-22). He also doubted that Ken could have had a reasonable understanding of the value of his estate. Furthermore, he opined that it was highly unlikely that, by March and April 2017, Ken would have been able to identify, evaluate and discriminate between the strengths of the claims of the persons potentially benefiting from his estate, or the claims of the persons who might be expected to benefit from his estate. By that time, Ken was unable to form, or articulate, views that differed in any way from those of Irene; he presented as significantly confused; he looked to Irene to answer all questions on his behalf; and the extent of his conversation was echolaic in nature, repeating phrases after they were used by Irene.

Dr Barnett was further of the opinion that Ken’s short-term memory was badly affected by March and April 2017, so that he was unable to recall relevant information regarding the care and support provided to both him and Irene by people in the past; and where given conflicting information, Ken merely repeated information provided to him by Irene.

Accordingly, Dr Barnett was of the opinion that it was highly unlikely that Ken would have had testamentary capacity (as established in Banks v Goodfellow) to make a valid Will in March or April 2017.

Dr Barnett first saw Irene at the Southern Highlands Private Hospital, following her admission on 5 February 2017 with a fractured right femur. He consulted with Irene on several occasions to carry out assessments of her mental facilities and to provide guidance on treatment.

He first assessed Irene on 6 February 2017. During the consultation, she did not appear to remember that she had fallen at home and kept repeating “I just want to catch a taxi and go home!”.

In the Progress Notes of 6 February 2017 Dr Barnett wrote (Ex J2/157):

In cross-examination, Dr Barnett noted that, at that stage, a full diagnosis of dementia had not been made, but that it had been intimated to him by her carers, and in a letter from Irene’s GP, that there had been issues with Irene’s short term memory: Tcpt, 10 February 2021, p 476(11-17).

On 7 February 2017, Dr Barnett attended on Irene again. He was informed by the hospital resident doctor that the orthopaedic surgeon had decided that, due to the nature of Irene’s fracture, and her mental capacity, surgery was not an appropriate option, and that she should be managed with bed rest in hospital. Dr Barnett noted that it was not feasible for her to be managed at home as it would take around two or three people to move her around at all times: Tcpt, 10 February 2021, p 441(15-19); Affidavit, Dr John Graham Barnett, 20 February 2019 at par 8.

On 8 February 2017, Dr Barnett again attended on Irene. He recalled that Irene did not remember him from the previous day and was resistant to any nursing interventions. He attended again the next day and his Progress Notes record that during this attendance Irene was confrontational and agitated. He attempted to have her complete an MMSE examination but Irene refused to answer questions: EXJ2/170.

Despite not having completed the MMSE examination, Dr Barnett noted that cognitive assessment also included things like “engagement”, “attentiveness”, “repetition”, “tangential thought”, “abuse”, “hostile affects” and the like: Tcpt, 10 February 2021, p 476(42-44). He felt, because “she could not engage with any questions or anything I tried to ask her, that she had cognitive impairment, and I did not believe it was a delirium because she was able to be attentive and quite definitive about what she was saying to me.”: Tcpt, 10 February 2021, p 477(46-49). He confirmed that “her presentation was consistent with one of advanced dementia”: Affidavit, Dr John Graham Barnett, 20 February 2019 at par 11.

At the conclusion of the meeting on 9 February 2017, Dr Barnett took Cathie out of the room to speak to her in relation to treatment and discharge plans for Irene.

Dr Barnett conducted a further assessment of Irene on 16 February 2017, recording in the Progress Notes (EXJ2/182) that:

Even though Irene did not want to talk to Dr Barnett, or to have any cognitive assessment completed, that on its own, does not mean that she was cognitively impaired. However, that is not the only evidence on the topic. On 16 February 2017, Irene had a CT scan. Dr Barnett received the report from the scans on the same day which stated (Ex J2/184):

Dr Barnett confirmed that the results of brain scan and the images supported a diagnosis of vascular dementia and the degree of impairment to blood flow and circulation was congruent with the moderate to severe level of dementia with which she had presented.

Dr Barnett received a letter dated 17 February 2017, from Wilkinson Throsby & Edwards, requesting a written report regarding the capacity of Irene and Ken. He assessed Irene on 22 February 2017 at Southern Highlands Private Hospital, writing (Ex J2/313-314):

Dr Barnett prepared a report dated 23 February 2017 for Wilkinson Throsby & Edwards, which stated (Ex J2/322):

On 21 March 2017, Dr Barnett attended on Irene at Harbison Care after receiving a referral from her GP, Dr Heather McIntyre, on 14 March 2017. He was then informed by staff that there had been a change of attorneys and guardians completed the day before and one of the new appointees, Mrs King, was present. Mrs King remained in the room while the assessment took place and took notes.

In Progress Notes relating to the assessment there are multiple references to Irene’s paranoia including: “expressing paranoia to Curcurutos”; “paranoid themes on neighbours wanting to take house away”; “paranoid re things being stolen” etc. (Ex J2/397).

Dr Barnett was only able to partially complete a specialist geriatric assessment of Irene as she refused to fully co-operate: Ex J2/399-400. He did not pursue the completion of the assessment because Irene was unable to engage in meaningful conversation and her presentation was such that his previous conclusions remained unchanged.

After the assessment, Dr Barnett spoke with Mrs King outside the hospital room and asked for evidence of her appointment as attorney (which she provided). There was a conflict in the evidence about the conversation that they had, but that conflict of evidence does not have to be resolved.

On 16 April 2017, Dr Barnett wrote a report of his assessment to Dr McIntyre, in which he stated (Ex J2/420-421):

Dr Barnett next attended on Irene on 30 May 2017, at Harbison Care, following an application to the Guardianship Division of NCAT. The observations of the report are noted in Ex J2/453 and include:

On 13 June 2017, Dr Barnett again attended on Irene for routine matters. He observed little change.

On 25 July 2017, Dr Barnett next attended on Irene at Harbison Care. Dr Barnett made an entry in the medical system of Harbison Care at Ex J2/457 stating:

On 22 August 2017, Dr Barnett met with Irene for the last time.

By the time Dr Barnett responded to the request from Wilkinson Throsby and Edwards on 23 February 2017, he had formed the view that Irene did not have the mental capacity to be able to understand documents that she might be asked to sign, or to enter into legal transactions.

He was of the opinion, based upon his observations and professional experience, that it was reasonably likely that in March and April 2017, Irene would have known what a will was and would have been able to appreciate the components of her estate and the nature of the assets comprised in her estate. He thought it was also possible that she could have had a reasonable understanding of the value of the estate. He accepted that Irene had told him that she had worked very hard and built up a lot of assets including the farm (“Southdowns”): Tcpt, 10 February 2021, p 480(05-10). However, he stated that it would be highly unlikely that she would have been able to identify, evaluate, or discriminate, between the strengths of the claims of persons expected to benefit from her estate. He found her to be significantly susceptible to her cognitive function being influenced by information provided to her, and her short term memory was badly affected.

In cross-examination, Dr Barnett confirmed that he did ask Irene questions about those who might benefit from her estate to which she mentioned Steve and Cathie, who would care for her and Ken, even after the guardianship documents had changed. She also stated they had relatives but that they did not want anything to do with them. He had based his opinion upon the fact that “her focusing on people was pretty transient and she would take instant dislikes to people and then be all over them the next minute”: Tcpt, 10 February 2021, p 480(50) - 481(03). He opined that it was highly unlikely that Irene would have had the requisite testamentary capacity (as established in Banks v Goodfellow) to make a valid Will in March or April 2017.

Karen and Jeffrey conceded that there was no dispute that Ken and Irene had dementia at the relevant times, but challenged the degree (or severity) of the dementia from which each suffered: Tcpt, 18 March 2021, p 882(15-21).

The Plaintiffs submitted that Dr Barnett’s opinion of Ken’s and of Irene’s testamentary capacity, provided in March 2017, was ‘retrospective’ and of “limited assistance to the Court in an assessment of testamentary capacity”. They also submitted that Dr Barnett had made general observations about forgetfulness and disorientation as to time and place but had failed to comment on executive function and Ken’s and Irene’s ability to make decisions about certain topics, which was essential to satisfy the third element of Banks v Goodfellow: Tcpt, 18 March 2021, p 863(40)-864(04).

The Defendants submitted that the medical evidence established significant doubt as to Ken’s and Irene’s testamentary capacity such that only highly cogent evidence, which had not been provided by Karen and Jeffrey, would be enough to remove it.

It is to be noted from the above, that this is a case in which Dr Barnett, the only medical expert who was cross-examined upon his affidavit which was read, actually examined each of Ken and Irene, and assessed his and her, mental state, respectively, at about the time each of the 2017 Wills was prepared and signed. Whilst it is true that he expressed his opinion as to testamentary capacity after the death of each of them (because he did not specifically assess that capacity during his, and her, lifetime, respectively), he based his opinions on the assessments of each made during Ken’s, and Irene’s, lifetime, respectively.

Importantly, Dr Barnett assessed Ken in mid-2016 and then in February and March 2017. He reached his conclusions as to testamentary capacity, based upon his observations made on those occasions.

In relation to Irene, Dr Barnett assessed her in February and March 2017, and whilst on several occasions, he was unable to conclude his assessment, that is a relevant matter that was taken into account by him. He reached his conclusions as to testamentary capacity, based upon his observations made on those occasions.

I found Dr Barnett to be a very good witness, who expressed himself calmly and with clarity and moderation. I found his evidence to be reliable and the picture portrayed of each of Ken and Irene to be well set out in the contemporaneous documentary evidence. His evidence provides the necessary diagnosis of the mental state of each of Ken and of Irene at around the time of the making of Ken’s 2017 Will and Irene’s 2017 Will. There is no reason to doubt his diagnosis in respect of Ken and Irene.

However, as I have stated, this evidence is only part of the evidence that the Court must consider. Dr Barnett’s evidence cannot, and should not, be considered as if there were no other evidence. As it happens, other medical evidence to which I have referred, and other lay evidence, to which I shall refer, gives additional support for his conclusions.

I next set out the evidence of the other witnesses and my impression of those witnesses below. Unsurprisingly, on occasions, witnesses perceived the same events differently. In reaching my conclusions I have borne in mind the following principles.

McLelland CJ in Eq cited Plunkett v Bull [1915] HCA 14; 19 CLR 544 in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, at 789, in which case, his Honour wrote that "in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution". Whilst there is no absolute legal requirement for it, the Court should look for some corroboration: Re Hodgson (1885) 31 Ch D 177 at 183; Day v Couch [2000] NSWSC 230 at [9]; Weeks v Hrubala [2008] NSWSC 162 at [20].

Whelan J in Webb v Ryan [2012] VSC 377, at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

As was observed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315, at 318 - 319:

In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation.

I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]:

The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 3 WLR 640; [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247] (Jagot J). Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J).

The circumstances of this case, also make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben’s of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), (in a passage cited with approval by the High Court when it upheld his Honour’s decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 at [15]-[16]) appropriate to remember:

I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis and Calogeropolous v Vergottis [1968] 2 Lloyd’s Rep 403, at 431:

I should mention an article by the former Chief Judge at Common Law, P McClellan entitled “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

A number of the witnesses, whose affidavits were read, were not cross-examined.

In Taupau v HVAC Constructions (Queensland) Pty Ltd [2012] NSWCA 293, although a case involving experts, none of whom were cross-examined, the Court of Appeal (per Beazley JA, Basten and Macfarlan JJA agreeing) discussed the legal principles relating to unchallenged evidence, relevantly, at [130] – [131]:

Whether or not a witness is cross-examined, it remains the function of the trial judge to assess the evidence, using whatever tools are available in the circumstances, including considering how the evidence sits with the other evidence in the case. If, after careful examination, the Court forms the view that any part of the evidence is not cogent, then it may be disregarded: Masters Home Improvement Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd (2017) 372 ALR 440; [2017] VSCA 88 at [420].

The fact that evidence is contradicted by other evidence may provide a proper basis for rejecting it even where it has not been challenged in cross-examination: Bulstrode v Trimble [1970] VR 840 at 848 (Newton J).

Keeping all of the above principles in mind, the Court will take, as a platform for fact finding, the reliable contemporaneous documentary evidence; will add known, established or agreed facts, probable facts (both inherently probable and by inferences properly drawn from known, established or agreed facts), and then the witness evidence which is not tainted, or flawed, by indicators of unreliability.

I shall deal first with the evidence of the witnesses who were not cross-examined.

Ms Karaki affirmed an affidavit on 24 May 2019 in which she gave evidence of having served, on 26 April 2019, Paul McMullen, Paula McMullen, the Royal Flying Doctor Service and the Children’s Medical Research Institute, each of whom, is a substitute beneficiary named in Ken’s 2014 Will and Irene’s 2014 Will, with a notice of proceedings (formerly referred to as a "citation to see proceedings") pursuant to the Supreme Court Rules 1970 (NSW) Pt 78 r 57. None of the persons, or entities, on whom, or on which, the notice was served, has entered an appearance in each of Ken’s proceedings or Irene’s proceedings.

Ms Karaki also gave evidence of having served, on 26 April 2019, each of Mr McMullen, Ms McMullen, Rodney Keyte, Keith Owens and the Defendants, each of whom is a substitute beneficiary named in Ken’s 2015 Will and Irene’s 2015 Will with a notice of the proceedings. Only the Defendants have sought to participate in Ken’s proceedings and in Irene’s proceedings.

Ms Dingle gave evidence of having served, persons who are adversely affected under previous testamentary documents, made by Ken, and by Irene, between 14 August 1992 and 21 May 2015 to which reference will be made. She also gave evidence of having served 14 different substitute beneficiaries with a notice of proceedings. None of the persons, or entities, on whom, or on which, the notice was served entered an appearance in each of Ken’s proceedings or Irene’s proceedings. She stated that “[A]ll persons adversely affected by the Defendants/Cross-Claimants’ application are on notice of the proceedings”, three of whom (Daphne Morton, Glen Shepherd and Robert Jeffcoat) orally acknowledged receipt of the notice of proceedings but did not return a signed copy thereof as was sought by Ms Dingle.

There is also evidence of personal service, on 30 October 2019, of a notice of proceedings on Ms Morton, given by Andrew Jones, a licensed process server; upon Robert Jeffcoat on 1 August 2019, given by John Kowalenko, a licensed process server; and upon Glen Shepherd on 11 November 2019, given by Andrew Khee Tuan Ng Saad, a licensed process server. None of the process servers was cross-examined.

The evidence of each of the witnesses as to service is accepted.

A summary of the evidence given by Ms Cabot was:

In broad terms, I accept some of the evidence given by Ms Cabot. However, it is highly unlikely, that any of the events occurred in February or March 2017, the critical period for the determination of the issues in this case. In addition, the failure to observe any change in Irene’s demeanour suggests that Ms Cabot’s evidence related, principally, to events, with Ken and Irene, which occurred before February 2017.

A summary of the evidence given by Ms Dawson was:

In broad terms, I accept the thrust of the evidence given by Ms Dawson. However, it is highly unlikely, that any of the events occurred in February, or March, 2017, the critical period for the determination of the issues in this case.

A summary of the evidence of Sylvia Curcuruto, who could not be cross-examined, was as follows:

Sylvia’s evidence appears to be consistent with other evidence in the case. It is also important to note that she gave evidence spanning a reasonable length of time, including February and March 2017. Although she had a close connection with Steve and Cathie, and even though she could not be cross-examined, I accept her evidence.

I turn next to the evidence of the principal witnesses.

Of the two Plaintiffs, Karen gave evidence first, over different days. Due to her advanced age, and the lapse of time since the events she was asked to recall, there were some imperfections in her recollection of events. However, I do not attribute these imperfections of memory to an attempt to be untruthful. During cross-examination, I found that she did endeavour to assist the Court and did her best to answer the questions asked of her.

I remember, also, that not long before the events that occurred, she was extremely unwell, and during the period of the events, in March and April 2017, she remained unwell, although recuperating. This may explain some lapses of memory.

Karen was able to recollect many of the events, although it is abundantly clear that she left much of what had occurred to Jeffrey. According to her evidence, it was Jeffrey, initially, who received and read the emails sent to them; that he responded to those emails, when required; and that, often, although not always, he conducted the telephone conversations with third parties. This is not to say that Jeffrey did not discuss things with Karen, but according to her evidence, she seemed to be far less involved than he was with such matters.

As Karen stated in cross-examination, "me being, partially deaf, Jeffrey answers emails and, and [sic] answers the phone and takes phone calls on my behalf": Tcpt, 11 February 2021, p 572(32-33) and that "very rarely I would talk to any persons on account of my hearing problem": Tcpt, 11 February 2021 p 572(41).

However, later in the cross-examination, on 16 February 2021, Karen stated that actually "No, it wasn’t very rare. I spoke to people on the phone after Jeffrey said it's a friend calling, or my cousin calling, or something, and then I'd accept the phone and talk to the person": Tcpt, 16 February 2021, p 601(37-39).

On 24 November 2016, shortly before leaving for Thailand, Karen and Jeffrey went to visit Ken and Irene at “Southdowns”. Irene appeared ill and was in bed. Karen agreed to come back the next week to cut Irene's hair.

In cross-examination, Karen stated that on this occasion, Ken "seemed quite capable of everything": Tcpt, 11 February 2021 p 550(15). However, in an email dated 10 March 2017, to Cathie (Ex J3/501), Karen confirmed that Jeffrey had written "the Saturday we were all together, it was quite noticeable that Ken was not his usual self but Irene, as usual, was in complete control": Tcpt, 11 February 2021 p 548(45-46).

The following Saturday, Karen and Jeffrey visited “Southdowns” again. Steve arrived at the house, following which Cathie arrived with her daughter. This was the first time Karen and Jeffrey met Steve and Cathie.

Karen made plans for Jeffrey and her to return to “Southdowns” in December and then in February, upon their return from Thailand. Later that day, Irene called Karen to cancel the December visit.

On 8 February 2017, Karen was admitted to hospital in Thailand with shingles, and fell into a coma for 3 days. She was also treated for a minor stroke: Tcpt, 16 February 2021, p 602(41-45), p 603(05-10). This led to her and Jeffrey remaining in Thailand for about one month. They returned to Australia on 11 March 2017.

Although Karen seemed confused about when Jeffrey first showed her the email from Cathie informing them that Irene had fractured her femur, I tend to think that it was when "she came out of the hospital and went into intensive care": Tcpt, 11 February 2021, p 540(42) and p 541(04-05). Karen then said that she saw the email three of four days after coming out of the coma: Tcpt, 11 February 2021, p 541(28). Nothing turns on this difference in dates because it is clear that Jeffrey had read the email upon its receipt and had then responded to it.

Karen stated, in an affidavit sworn 3 June 2019, that when she called Irene in mid-March 2017, Irene was asking to speak to her. Karen said that she spoke to Irene on the telephone 3 times whilst she was in Thailand. Bearing in mind other evidence, this seems somewhat unlikely.

Karen repeatedly asserted in cross-examination, that the email from Cathie stated that Irene and Ken did not want to see her and Jeffrey anymore: Tcpt, 11 February 2021, p 562(05-24). The email, which has been quoted above, did not even intimate such a thing. It stated only that Irene did not want Karen and Jeffrey to know that she had fractured her leg and that Irene was in Harbison Care: Ex J3/384.

Karen’s stated perception of the contents of the email, perhaps, demonstrates her subsequent antipathy to Steve and Cathie. Certainly, the email in response to Cathie’s email, written and sent by Jeffrey, gave no impression of Jeffrey (or Karen) being upset by Cathie’s email dated 2 March 2017. To the contrary, in the email, Karen and Jeffrey had expressed gratitude to Steve and Cathie for assisting Ken and Irene and had commented that they understood that "it's difficult the way Irene seems to think that she would not want to rely on anybody": Ex J3/386. It went on to say that, upon their return to Australia, they would meet with Steve and Cathie to talk about what would be the best course of action for Ken and Irene.

It is unclear whether Karen told Ms Blackadder, and others, at a meeting that took place on 20 March 2017 that Irene and Ken did not want to see her anymore. In cross-examination the following exchange took place: Tcpt, 11 February 2021, p 561(42-50).

Then a few minutes later, Karen said that she never told anyone at the café meeting that Irene and Ken did not want to see her anymore: Tcpt, 11 February 2021, p 563(01).

If Karen did say that Steve and Cathie had stated that Ken and Irene did not want to see Karen and Jeffrey, it was not an accurate statement of what had been communicated to them. I do not accept that Steve and Cathie had made any such representation.

Upon their return from Thailand, Karen’s and Jeffrey’s immediate focus was on Karen’s health. She did not want to visit Irene and Ken until she had fully recovered. However, a day or so after their return, Karen and Jeffrey received a telephone call from Mrs King, in which she informed Karen that Ken and Irene no longer trusted Steve and Cathie anymore. She also told them that she had found Ken and Irene a new solicitor who might be able to help. Mrs King also told Karen that the solicitor would be coming to see Ken and Irene on 20 March 2017 and that Karen and Jeffrey should also attend.

Shortly afterwards, Karen called Irene, who, apparently, told her that Steve and Cathie had trapped them in Harbison Care and that she had been asking to speak to Karen. In contrast, in cross-examination, Karen stated that when attending the meeting of 20 March 2017, she still had no knowledge of any complaints made against Steve and Cathie: Tcpt, 11 February 2021, p 560(40-45). (She later said in cross-examination that she did not recall when she found out about any such complaints: Tcpt, 11 February 2021, p 561(15-21)).

I am satisfied that Mrs King would have had no hesitation in telling Karen about her “suspicions” concerning Steve and Cathie. I do not accept that Karen had no knowledge of the complaints said to have been made. I tend to the view that the change in attitude, by Karen and Jeffrey, towards Steve and Cathie, was brought by what they were told, principally, by Mrs King, to whose evidence I shall later refer. Otherwise, there is no explanation for Karen’s change of attitude towards Steve and Cathie.

On 19 March 2017, Karen and Jeffrey travelled to Bowral and stayed in a motel overnight before attending the meeting the next day. On 20 March 2017, they and Mr and Mrs King met with Ms Blackadder and Ms Kamal at a café in Bowral. In cross-examination Karen said that at this meeting they did not discuss the complaints said to be made by Ken and Irene against Steve and Cathie: Tcpt, 11 February 2021 p 558(16-26). I do not accept Karen’s evidence in this respect. The group then went to Harbison Care to meet with Ken and Irene.

In an affidavit sworn 6 December 2018, Karen stated that Ken and Irene invited her and Jeffrey to move into “Southdowns” and told Mrs King to give them a copy of the keys. She also said that she had been unable to hear any conversation between Ms Blackadder and Ken and Irene, as Ms Blackadder had asked Karen, Jeffrey and Mr and Mrs King to go to the other side of the room, whilst she conversed with Ken and Irene.

As stated earlier, it was on this occasion that a new Enduring Power of Attorney and Appointment of an Enduring Guardian had been signed by each of Ken and Irene and accepted by Karen, Jeffrey, Mr King and Mrs King. However, on this important aspect, Karen had no recollection of signing the Power of Attorney and the guardianship documents: Tcpt, 11 February 2021, p 566(36).

Following the meeting, Karen, Jeffrey, and Mr and Mrs King, all drove to “Southdowns”. As will be referred to in more depth later, Karen said that they did not find that the carpet had been flooded, as Steve had told Jeffrey.

Karen became concerned about potential misuse of the Shepherd's money by Steve and Cathie after they found a receipt on the bench from the Co-op in Bowral for six large gas bottles. The order had been charged to, and paid for, by Ken and Irene but the delivery address was to Steve’s brother, John Curcuruto. The following day when Jeffrey and Karen returned to “Southdowns” after visiting Ken and Irene, the receipt was missing.

Karen and Jeffrey obtained copies of the Shepherd's bank statements from St George Bank, but they were not able to identify what monies had been spent.

It is clear from the evidence, that the trust, if any, that Karen and Jeffrey had placed in Steve and Cathie, prior to visiting Thailand, had evaporated. Concerns about them having taken financial, or other, advantage, of Ken and Irene became real.

In my view those concerns were created by Mrs King. That this was so was very clearly raised in the affidavits by each of Karen and Jeffrey that were served. However, it appears that the lack of trust, the so called “suspicions”, and the concerns, were completely unjustified. Despite the passage of time since the death of each of Ken and Irene, there is not one skerrick of evidence advanced to suggest that either Steve, or Cathie, had taken advantage of Ken or Irene, or that the trust shown by Ken and Irene in them, or the concerns that Mrs King expressed, were valid.

Furthermore, it was hardly likely that Steve and Cathie would draw attention to their involvement in the lives of Ken and Irene as they did, and that Cathie would inform Karen and Jeffrey of events involving Ken and Irene, against the wishes of Irene, as she did in sending the email of 1 March 2017, if such advantage was being taken.

On 23 March 2017, Ms Blackadder sent an email to Karen and Jeffrey stating "good to speak to you a moment ago": Ex J3/601. However, Karen stated in cross-examination that it is unlikely she had spoken to Ms Blackadder: Tcpt, 11 February 2021, p 572(33-34); Tcpt, 11 February 2021 p 572(41).

Karen also stated she did not see the email sent by Ms Blackadder on 23 March 2017 and did not tell Ms Blackadder that she wanted further medical reports on Ken’s or Irene’s condition as "… most of the emails and telephone calls are taken usually by Jeffrey and he may have read it out to me, but I don't recall that": Tcpt, 11 February 2021, p 573(45)-574(01).

Between 20 March 2017 and 27 March 2017, Karen received a telephone call from Mrs King in which she said "I've just spoken to Ken and Irene, and they have asked Damian and I to be there when Priscilla next comes down and when they execute the Wills." She also stated she did not want anything to do with the Wills and asked Karen to be there instead: Affidavit, Brian (aka Karen) Foster-Chant, 6 December 2018 at par 44.

On 27 March 2017, Ms Blackadder and Ms Kamal returned to Harbison Care to take further instructions about the Wills. Jeffrey and Karen were present at this meeting, although they returned to the opposite side of the room and chatted amongst themselves, whilst Ms Blackadder and Ms Kamal spoke to Ken and Irene.

As will be read, Ms Blackadder had already prepared a draft Will for each of Ken and Irene, which she left with them even though Irene said that they had a couple of things to think about. Ms Blackadder said that she could return next week if they were then happy to sign the Wills.

On 31 March 2017, Karen and Jeffrey visited Ken and Irene. Karen gave evidence that on this occasion, Ken and Irene expressed concerns about Ms Blackadder and Ms Kamal. Karen said that she witnessed Irene saying to Jeffrey that "Steve and Cathie have been to see us. They said those female lawyers are up to no good and we shouldn't trust them". In cross-examination, Karen said that she had no recollection of Ken or Irene expressing concerns about Ms Blackadder and Ms Kamal: Tcpt, 16 February 2021, p 602(18-24), p 603(11-15). I have earlier referred to a note from Ms Kamal on this topic.

Even if the statements were made by Irene, I do not accept that Steve or Cathie had visited for that purpose, or that either of them had said any such thing to Ken or to Irene about Ms Blackadder.

In her affidavit, Karen stated that she had heard Ken and Irene tell Jeffrey that they would like to execute the Wills in their current form. She asserted the following conversation had taken place:

In cross-examination, Karen stated that Ken and Irene had called Jeffrey to tell them they were ready to sign the wills. Karen did not speak to Irene and Ken about this, but Jeffrey informed her of the conversation: Tcpt, 11 February 2021, p 583(19-44). Yet, later in cross-examination, Karen also said that Ken never told her that he was ready to sign the Will (Tcpt, 16 February 2021, p 604(03-05)):

What was meant by the last sentence was not explored further.

Jeffrey then told Karen that he had called Ms Kamal to get answers to Irene's question. He also said that he had told Ken and Irene that he had spoken to Ms Kamal; that she had said that the Wills could be signed without them being there, and that she would send an instruction sheet to be followed; and that he had telephoned Ms Kamal and had told her to tell Ms Blackadder not to return.

On 1 April 2017, Karen and Jeffrey dropped in to see their friend, Mr Gordon, on their way to Harbison Care. His niece, Ms Baird, was there. Mr Gordon asked if he could come along to Harbison Care and to visit a nursery in the Southern Highlands afterwards. The four then travelled to the Southern Highlands together and visited Ken and Irene.

Karen said that she observed Irene as “very bright and talkative” on that day and that Ken had said words to the effect:

Karen said she then asked about the Shepherd side of the family to which Ken and Irene responded:

Jeffrey also said that he needed to find witnesses and asked Ken if he had read through, and understood, the Will. Ken said "Yes, of course I've read it and understand it. This isn't our first Will. We've had it for a week and talked it over". Jeffrey then left the room to look for two witnesses. Ken then began to sign the Will. Mr Gordon and Ms Baird were standing there talking amongst themselves. After Ken had signed the Will, he turned to Irene and had a conversation to the following effect:

Irene then signed her Will. Karen said that they needed witnesses. Irene then asked Mr Gordon and Ms Baird to witness the documents. They agreed and they signed each Will also.

Karen stated in cross-examination, that she never saw Ken, or Irene, read the Wills. Nor did she hear anyone read it to them: Tcpt, 16 February 2021, p 605(01-06).

Karen stated that in April 2017, she and Jeffrey focused on getting Ken and Irene back to “Southdowns”. Both were present when Dr McIntyre assessed Ken and Irene at Harbison Care. During the assessment, Jeffrey asked what they could do to enable Ken and Irene to be taken home. Dr McIntyre is said to have taken Jeffrey out the room and when he returned, he told Karen about the conversation.

In an affidavit affirmed 6 December 2018, Karen noted that Jeffrey told her "that we need to renovate the house to hospital standards, with a hospital bed and all sorts, and that she won't approve a release until she's inspected the house and signed off on it. She sounded just like [Steve], she said that they aren't going home and they are staying right where they are".

It is extremely difficult to accept Karen’s evidence about the steps taken regarding moving Ken and Irene back to “Southdowns”, and for her and Jeffrey to move there to look after them. Any rational consideration of Irene’s physical state (the medical evidence being that she could not stand or walk), that Karen herself, was not physically well, and the characteristics that Irene and Ken had displayed regarding people coming to, let alone, living at, “Southdowns”, could only have led to the realisation that Ken and Irene could not return to live there.

It is not possible to come to any other view than Karen and Jeffrey, in encouraging a belief that they would assist Ken and Irene to return there, fed Ken’s and Irene’s unrealistic hope of returning to “Southdowns” and fuelled the belief that others, including Steve and Cathie, were keeping them in Harbison Care, not because of his, and her, medical conditions, but so that Steve and Cathie could obtain some financial, or other, advantage.

It is clear that some events occurred, later in April 2017, which soured the relationship of Karen and Jeffrey with Ken and Irene. Karen said that they stopped visiting, as each time they visited, Irene would ask strange questions about them throwing parties at “Southdowns” and that Irene became very controlling about who was permitted to come into her room.

Karen also said that she stopped visiting as she was getting increasingly stressed by Irene and was concerned about her own health. (This, too, confirms the unrealistic suggestion that all would be able to live together at “Southdowns”.)

Karen was not present at the NCAT hearing in May 2017 but heard what was occurring. She had asked Graham Shepherd to speak on her behalf. Karen also gave evidence that Graham Shepherd had approached Karen and Jeffrey with a brochure for a nursing home in Murwillumbah. By this time, Karen had realised that it would not be possible for Ken and Irene to return to “Southdowns” and she considered that the Murwillumbah nursing home would be a better alternative than Harbison Care.

Karen’s involvement with Graham Shepherd and her acceptance of the suggestion that Ken and Irene should move north to Murwillumbah seems extremely surprising bearing in mind her evidence about the conversation with Irene about the Shepherd family about which Karen had given evidence.

In July 2017, Karen and Jeffrey returned to Thailand.

I next turn to Jeffrey’s evidence. Overall, I came to the view that I must treat Jeffrey’s evidence with some caution. I consider that he had come to appreciate the importance of the role that he had played in the events that had occurred and he seemed somewhat defensive about that role and tried to lessen his involvement, attributing some of what had occurred to Karen.

Despite having stressed, initially, that Karen had been unwell, and that he had received and sent most of the emails for them; that he had read and showed her all emails if that were necessary (Tcpt, 16 February 2021, p 638(15-41)), I formed the impression during his evidence in cross-examination, that he wanted to attribute a much more significant role in the events to Karen. That Karen did not play such a role, particularly in relation to the 2017 Wills, was reasonably clear from some of the contemporaneous emails and diary notes that were in evidence.

Jeffrey observed that Karen and Irene had a close relationship; that Irene had vacationed with Karen and him; that they had all lived together on occasions; at times, Irene had bought Karen dresses and that she had "never criticised Karen or I [sic] for our lifestyle". It is not entirely clear when the events spoken about had taken place.

It is hard to accept Jeffrey’s evidence when:

Jeffrey confirmed that, in late November 2016, Karen and he had first met Steve and Cathie on a visit to “Southdowns”. Steve informed Jeffrey that he and Cathie helped Ken and Irene with groceries, with paying bills, and around the farm. They exchanged email addresses.

It is unnecessary to repeat Jeffrey’s evidence about his and Karen’s stay in Thailand and the medical events that had occurred whilst they were there. He corroborated Karen’s evidence about those events, which I accept.

On 1 March 2017, Jeffrey received the email from Cathie informing him that Irene had fallen and broken her femur. The contents of the email can be found at Ex J3/384 and include the statement that Irene had not wanted Karen and Jeffrey to be informed of those events.

In cross-examination, Jeffrey stated that he did not show Karen this email but did tell her about it and the contents: Tcpt, 16 February 2021, p 655(13-40). (This is inconsistent with Karen’s evidence on this topic.)

In an affidavit sworn 3 June 2019, Jeffrey stated that after Irene's accident, he had attempted to call Ken and Irene, but the call would not connect due to a problem with the Thai sim card in his mobile telephone. Unless the sim card had been changed, or the problem had just arisen (about which there was no evidence), it confirms my doubt about the correctness of Karen’s evidence of her regular telephone contact with Irene during the periods of time she and Jeffrey lived in Thailand.

On 10 March, Jeffrey sent an email to Cathie stating that "on the Saturday we were all last together it was quite noticeable that Ken was not his usual self": Ex J3/501. In cross-examination, Jeffrey first said that he was talking about Ken's memory and diminishing thought process but later said that he was referring to Ken's physical capacity: Tcpt, 16 February 2021, p 659(15-30).

Jeffrey stated that he thought Ken was staying in Harbison Care to support Irene and not because he could not manage at home alone: Tcpt, 16 February 2021, p 661(47-48). I do not accept this evidence. It demonstrated that Jeffrey held an unrealistic view of Ken’s physical, and mental, state. It is also inconsistent with the overall evidence of Ken’s condition at the time.

On 14 March 2017, Karen told Jeffrey of her conversation with Mrs King regarding Ken and Irene's welfare. Karen told Jeffrey that she had called Irene:

Shortly afterward, Jeffrey said that he left a voicemail for Steve in order to obtain information about Irene's condition and to inform Steve that Karen and he would be staying at “Southdowns”. Steve returned his telephone call and is said to have told him that Ken had damaged the house, flooded the bathroom, that the carpets would need to be replaced and that there is no water or electricity. According to Jeffrey, Steve got very aggressive and angry on the phone: Tcpt, 16 February 2021, p 672(46-47) He also said that the conversation included Steve saying:

It is likely that some parts of this conversation were said but I doubt that those parts were said to establish that “We are in control of it all now”.

Jeffrey gave similar evidence to Karen of the events of 20 March 2017. However, he left out of his affidavits some important parts of the events. Importantly, little was said of the initial meeting with Mr and Mrs King, Ms Blackadder and Ms Kamal at the café, although, he did say, in cross-examination that Ms Blackadder had told him that there should be no further contact with Steve and Cathie: Tcpt, 16 February 2021, p 676(24-28). He had given no evidence of anyone signing the Enduring Power of Attorney or the Appointment of Enduring Guardianship documents. Indeed, Jeffrey said he did not see any documents being signed on that day: Tcpt, 16 February 2021, p 670(25-33).

He gave evidence of Karen and him returning to “Southdowns” and what they observed there, including the finding of the receipt to which I have earlier referred.

It is not necessary to repeat what I have said about the concerns that he and Karen held about Steve and Cathie. I am firmly of the view that the concerns were unreasonably reached and held, bearing in mind that he had met them in late November 2016, had received correspondence from Cathie in March 2017, whilst in Thailand, alerting Karen and him to Irene’s medical condition, as well as Ken’s, and Irene’s mental state, that he had responded with gratitude and appreciation, and that until discussions with Mrs King, whom he and Karen had not even met previously, he had no reason to be concerned about Steve and Cathie’s treatment of Ken and Irene. I have already referred to the lack of evidence supporting the concerns.

Jeffrey stated, in cross-examination, that neither he, nor Karen, had telephoned, or planned to telephone, Ms Blackadder to give further instructions about the Wills for Ken or Irene: Tcpt, 16 February 2021, p 679(29-38). Yet, Ex D11 (the timesheets kept by Ms Blackadder) shows that, on 22 March 2017, Ms Blackadder had a "Telephone attendance on J Lee and B Foster Chant." The subject of this telephone conversation was not disclosed. Nor was there any diary note written by Ms Blackadder produced.

On 27 March 2017, when Ms Blackadder and Ms Kamal returned to Harbison Care, Ms Blackadder was said to have told Jeffrey and Karen that she had gone through the Wills with Ken and Irene and would come back the following week to have them finalised and executed if Ken and Irene were then happy with those Wills. This evidence appears inconsistent with the evidence of Ms Blackadder, to which reference will be made, that Ken and Irene had some things that they wished to consider before signing his and her Will respectively.

On 31 March 2017, on a visit to Ken and Irene, Jeffrey said that Ken and Irene had expressed some concerns about the lawyers who had attended. Shortly thereafter, Jeffrey called Ms Kamal and had a conversation with her about postponing Ms Blackadder's visit to Ken and Irene. Jeffrey said words to the effect "The Curcurutos have been in Irene's ear and told them not to trust the female lawyers. I don't want her to get upset."

Each of Steve and Cathie denied having said any such thing to Ken and Irene. Even if it had been said, it demonstrates the mental state of each of Ken and Irene in accepting what was said. It is also surprising that Jeffrey, who, by this time, had met both Ms Blackadder and Ms Kamal, did not attempt to dissuade either of Ken or Irene from believing the lawyers should not be trusted.

Jeffrey informed Ken and Irene that he told Ms Blackadder and Ms Kamal not to come back. He said that Irene and Ken then advised that they would like to execute the wills in the current form, following which he called Ms Kamal to enquire how the Wills could be executed properly.

In cross-examination, Jeffrey asserted that it was Karen who had received the telephone call from Irene saying that she and Ken were ready to sign the Wills: Tcpt, 16 February 2021, p 676(50)-677(01). (Karen had not given such evidence.)

Following the telephone call to Ms Kamal, the contents of which appear to have been communicated to her, it appears that Ms Blackadder considered her retainer by Ken and Irene to have been terminated. In this regard, Ex D11 reveals no time sheet entry after 31 March 2017.

Thus, from this time, it appears that Karen, or more probably, Jeffrey, assumed sole responsibility for having each of the 2017 Wills signed.

In oral submissions, counsel for Karen and Jeffrey submitted that Jeffrey was involved in arranging for the signing of the Wills in a “logistic sense” but not “in the actual instructions”: Tcpt, 18 March 2021, p 886(19-21).

I shall not repeat Karen’s evidence, which Jeffrey repeated, about the events leading up to their arrival, with Mr Gordon, and Ms Baird, on 1 April 2017, at Harbison Care.

Jeffrey gave evidence that Ken said that he and Irene had been over the Wills and that they were ready to be signed. In an affidavit sworn 6 December 2018, Jeffrey asserted that Ken said words to the effect:

It is hard to accept that this conversation occurred. Firstly, Jeffrey had never been a beneficiary in any of the Wills made before Ken’s 2017 Will and Irene’s 2017 Will. There does not appear to have been any changes in the relationship between Jeffrey and Ken or Jeffrey and Irene that would prompt such an abrupt, and significant, change to the testamentary intentions of each of them. (The terms of the conversation suggest that Ken was speaking to Karen rather than to Jeffrey.)

Counsel for Karen and Jeffrey conceded that, other than Dr Barnett’s evidence of Ken and Irene’s “degree of paranoia about the Curcurutos”, it is “pretty much inexplicable” as to what caused the testamentary intentions of Ken and Irene to change between 2015 and 2017 in regards to Karen and Jeffrey: Tcpt, 18 March 2021, p 877(45)-878(06).

Furthermore, none of the earlier Wills had reduced the pool of beneficiaries to only two people. Each of the earlier Wills of Ken and of Irene had made gifts to persons who they had known for many years and who had played a role in the lives of each of them. In relation to Steve and Cathie, some of the earlier wills had favoured Steve’s parents.

Karen and Jeffrey submitted that as the secondary beneficiaries changed regularly over the last 20 years and since neither the Plaintiffs nor Defendants were featured in the 2014 Wills of Ken and Irene, this is not a matter where the history of will making is significant for the Court to consider.

It was not suggested that either Ken, or Irene, had expressed any specific reasons for such changes. Indeed, there is no contemporaneous evidence of any specific enquiries made by Ms Blackadder into the rationale for the changes brought about by each of the 2017 Wills or whether there was such a rationale. Karen and Jeffrey submitted that having been Karen’s partner for 46 years “it was obvious” Jeffrey had “been a central part of Ken and Irene’s ‘family’ for many years” and his inclusion was an example of Ken’s capacity to consider the claims of potential beneficiaries.

It is true, in a broader context, that Jeffrey might have been described as “family” as he had been part of Karen’s, and to a significantly lesser extent, of Ken’s and Irene’s, lives since 1968. By 1992, the date of the first Will made by each of Ken and Irene, a copy of which is in evidence, he had been Karen’s partner for nearly 25 years. By each of Ken’s 2015 Will and Irene’s 2015 Will, he had been Karen’s partner for over 45 years. Yet, he had not been a named beneficiary in any earlier Wills. There was no objectively rational basis, or for that matter, the existence of any obvious reasons, for so significant a change. The nature of, and the reasons, if any, given, for major changes in a will are part of the relevant factual matrix for assessing capacity.

Jeffrey stated that when visiting Ken and Irene, after the Wills were signed, Irene accused Karen and him of throwing parties at “Southdowns”, of leaving the gates open, and saying that she did not want to see anyone anymore. Jeffrey became worried for Karen's health as she would become very stressed when she was around Irene at Harbison Care. It seems that he did not regard Irene’s conduct as revealing a dementing illness.

There are other aspects of Jeffrey’s evidence that are hard to accept. He said that after Ken's fall from the ladder in February 2016, he did not notice any change in Ken's functioning or memory, yet accepted that when he had visited in November 2016, Ken would require more prompting to remember recent events. Nor had he noticed any alarming lapses in day-to-day management from either Ken or Irene. Yet, the email from Cathie showed that Jeffrey had been made aware of the incident when Irene had refused to let Ken go to the hospital for a routine scheduled kidney procedure: Tcpt, 16 February 2021, p 661(13-15).

Jeffrey disagreed that Ken and Irene had poor short term memory. In an affidavit sworn 6 December 2018, Jeffrey heard Irene say words to the effect "Tracie and Damian came today" or "Tracie's coming later." Jeffrey observed Ken reading the Daily Telegraph most mornings and initiating conversations about what he read. Of course, he accepted what Irene had said, without knowing whether it was correct.

Jeffrey also observed that Ken and Irene were aware they were in a nursing home and talked often about wanting to go back to “Southdowns”. That this was an unrealistic hope, and not in the best interests of either Ken or Irene, does not appear to have been considered by Jeffrey or by Karen.

Jeffrey also maintained that Ken and Irene were not disoriented as to time and place, as he observed Irene making comments, if Karen and he were late, and Ken always knowing when it was lunchtime or dinnertime.

In an affidavit sworn 3 June 2019, Jeffrey stated that when he visited Ken and Irene, in April 2017, they were happy to see Karen and him and that at no time did either express that they were unhappy with the new Power of Attorney or Enduring Guardianship documents or the Wills. It appears to have not occurred to him that neither might have remembered that he, and she, had signed those documents.

I next turn to the evidence given by Ms Blackadder, the legal practitioner who said that he had taken instructions from each of Ken and Irene, and the legal practitioner who had prepared each of the draft 2017 Wills. Importantly, she was not present at the time each of those Wills was executed by Ken, and by Irene, respectively.

Ms Blackadder admitted that, in her professional life, up to the point of being involved in the lives of Ken and Irene in March 2017, she had never had to consider whether a person had testamentary capacity: Tcpt, 2 February 2021, p 91(47-49). She had only become aware of Banks v Goodfellow when reading the Law Society Guidelines for Assessing Mental Capacity in March 2017 shortly before the meeting that she had with them. She had, however, drafted some wills in around 2009/2010 as a junior solicitor in another firm: Tcpt, 2 February 2021, p 92(01-12).

Ms Blackadder stated that:

At least in part, from what she herself admitted, the Court is able to gauge her then level of expertise, and competence, when it came to taking instructions for the preparation, and the execution, of, a will for an elderly client. This also means that I should carefully consider her later accounts of what had occurred at the time and consider those accounts in the context of the contemporaneous records that are available. Having seen and heard Ms Blackadder, I have come to the view that I should not place substantial weight on the ex post facto account she gave.

In an affidavit, sworn 29 October 2018, Ms Blackadder stated that around early March 2017 she was approached by Karen, Jeffrey, and Mrs and Mr King, to assist Ken and Irene with a guardianship and power of attorney matter: Affidavit, Priscilla Michelle Blackadder, 29 October 2018 at par 10. In fact, her involvement occurred not as a result of any contact by Karen and Jeffrey, but rather by contact with Mrs King. Indeed, there is no suggestion of any contact between Ken, Irene, Karen or Jeffrey, and Ms Blackadder, until the visit that occurred on 20 March 2017.

Ms Blackadder acknowledged as much at Tcpt, 2 February 2020, p 33(21-24) when she said:

In cross-examination, Ms Blackadder admitted to only speaking with Karen and Jeffrey, for the first time, on 20 March 2017, during the meeting at the café in Bowral: Tcpt, 2 February 2020, p 70(03-07).

Other evidence reveals far more contact between Mrs King and Ms Blackadder prior to 20 March 2017 than that adverted by Ms Blackadder in her affidavit. Between 8 March 2017 and 20 March 2017 there were at least 14 emails from Ms Blackadder to Mrs King in relation to Ken and Irene, and more emails from Mrs King to Ms Blackadder. Contact was first made, by Mrs King, around the 8 March 2017, when she asked Ms Blackadder for help with Ken and Irene having a Power of Attorney in favour of Steve and Cathie revoked: Ex J3/489AA.

The first Facebook message contained a reference to "Ken … suffering from a form of dementia": Tcpt, 3 February 2021, p 111(12); Ex J3/489AA.

On the same day, Ms Blackadder sent an email to Mrs King with links to information about power of attorney, guardianship and NCAT proceedings: Ex J3/489A. In this email, Ms Blackadder wrote that "In terms of a meeting, I'm happy to travel to the Highlands … Otherwise I'm happy to meet with you in the first instance so that you can see what is involved and then if you want to proceed, I can meet with the Shepherds at a later date. I'm happy with either course”.

On 9 March 2017, Mrs King sent an email to Ms Blackadder and, as an attachment, a letter from Steve and Cathie to Mrs King regarding an update on their actions as carers for Irene and Ken: Exhibit J2/500F-500G.

Mrs King sent Ms Blackadder another email, and as an attachment, a letter dated 16 February 2016 from Mr Cummins to Irene and Ken, including a copy of all the estate planning documents and Certificates of Title that were being held in safe custody for the Shepherds: Ex J3/500M.

On 12 March 2017, Mrs King sent Ms Blackadder a copy of part of Ken’s 2015 Will: Ex J3/508.

On 13 March 2017, Mrs King sent an email to Ms Blackadder informing her that Ken and Irene had signed powers of attorney and enduring guardianship over to Mr and Mrs Curcuruto: Ex J3/514-515.

On 17 March 2017, Mrs King sent an email to Ms Blackadder referencing an NCAT application she and Mr King were filling out in regard to a revocation of power of attorney and guardianship claim. In the same email she wrote that Irene and Ken are concerned about their Wills: Ex J3/524-527.

On 17 March 2017, Mrs King sent an email which included "The good news is, we have been able to find Irene's brother and he is coming on board with us." The wording of this email is interesting and suggests Mrs King having a significant involvement. This is the first reference in all communications to Karen: Ex J3/535.

Ms Blackadder gave evidence that Ken and Irene, during the meeting on 20 March 2017, gave her the following information:

It was submitted by senior counsel for the Defendants that putting aside the facts of which Ms Blackadder was aware before 20 March 2017, the information that she learned from Ken and Irene at the conference would have raised, in Ms Blackadder, as a lawyer, a suspicion of impaired mental capacity. It was submitted that a competent legal practitioner experienced in the preparation of wills would have considered the allegations, and investigated them, particularly the serious allegations made against another legal practitioner. There is some merit in this submission.

One difficulty with Ms Blackadder’s affidavits, is that they do not, clearly, separate the questions asked by Ken and those asked by Irene. In cross-examination she clarified that (Tcpt, 2 February 2021, p 31(03-16)).

Ms Blackadder made no reference in her affidavits to asking either Ken, or Irene, specific questions about his, or her, assets and liabilities; whether the estate of one should first pass to the surviving spouse; or who should be appointed as the executor of the Will. No discussion appears to have been held in regard to co-executors, or a gift over, in the case either or both Brian and Jeffrey pre-deceased them: Tcpt, 2 February 2021, p 93(14)-94(19). In oral evidence, Ms Blackadder did say that those topics were discussed when she interviewed Ken and Irene at Harbison Care: Tcpt, 2 February 2021, p 92(22-32).

The Wills of Ken and Irene are mirror wills. However, the evidence shows examples of differing instructions being given to Ms Blackadder by Ken and by Irene. For example, in Exhibit PB (Ms Blackadder’s original file note) and repeated in her affidavit sworn 29 October 2016, it is written that Irene wanted Brian to receive “Southdowns” but Ken wanted Brian and Jeffrey to receive that property.

On 20 March 2017, three days before the Wills were drafted, Mrs King sent an email to Ms Blackadder informing her that Ken and Irene were going to see a geriatrician to assess their mental capacity: Ex J3/580a.

On 22 March 2017 Ms Blackadder received an email from the Defendants’ solicitors, which attached the medical report dated 23 February 2017 from Dr Barnett. It stated (Ex J3/599-600):

After receiving this medical report, Ms Blackadder prepared a draft response and spoke to Betty Boustani and John McIntosh. She also sent the draft response to Karen and Jeffrey for feedback. There is no suggestion that she ever contacted either Ken, or Irene, about the contents of that email to obtain instructions from either.

Ms Blackadder said that she remained confident in her assessment of Ken and Irene, but she and Ms Kamal made general enquiries of the office of Dr Wijeratne: Tcpt, 3 February 2021, p 137(27-45). It is clear that in the face of Dr Barnett’s diagnosis and opinion, and her general lack of experience, Ms Blackadder ought to have been far less confident than she was.

In cross-examination, Karen stated she was not involved in asking Ms Blackadder to seek independent medical assessments of Ken and Irene and it would have been Jeffrey who dealt with that: Tcpt, 11 February 2021, p 574(23) – 575(04). Jeffrey could not remember if he gave instructions to Ms Blackadder for an independent assessment. He first stated that he asked a duty nurse for an assessment at Harbison Care (Tcpt, 16 March 2021, p 687(18-19)) but later in cross-examination stated he thought Ken’s godson, Graham Shepherd, was handling it: Tcpt, 16 February 2021, p 688(08-09).

On 23 March 2017, Ms Blackadder sent a letter, on behalf of Ms Boustani, in response to the Defendants’ solicitors which referred to Karen and Jeffrey making arrangements for independent medical assessments of Ken and Irene: (Ex J3/611). The relevant parts of the letter stated:

Yet no report was ever produced and the evidence is unclear as to the reasons why enquiries of Dr Wijeratne were not pursued or why the “two independent reports” were not obtained.

On 23 March 2017, Ms Blackadder drafted a will for each Ken and Irene, respectively.

Ms Blackadder and Ms Kamal drove back to Harbison Care on 27 March 2017 to discuss the draft Wills with Ken and Irene. Ms Blackadder, and Ms Kamal, are said to have spent approximately 2 to 3 hours with Ken and Irene. She stated that during that time she went through the entirety of both documents with Ken and Irene. She also stated that Ken told her they needed more time to discuss the distribution of their personal effects in detail and she agreed to come back the following Monday.

On leaving Harbison Care on that day, Ms Blackadder could not have concluded that the Will that she had drafted for Ken and for Irene contained the final instructions of each of them, respectively.

Ms Blackadder and Ms Kamal did not have any direct contact with Ken and Irene after that.

Whilst Ms Blackadder admitted that the instructions were incomplete when she drafted the Wills, she stated, in cross-examination, that “to the extent that there was [sic] gap, they were plugged on the second time we went down there, with the further conversations that we had”: Tcpt, 2 February 2021, p 90(30-34). I do not accept this evidence.

The Defendants submitted that this could not have happened as fully drafted Wills, pre-dated, and ready for execution, were brought with Ms Blackadder and Ms Kamal on 27 March 2017 when they attended on Ken and Irene. No instructions had been received from either Ken or Irene between 20 March 2017 and 27 March 2017 which could have enabled Ms Blackadder to form the view that the Wills that she prepared were other than in draft form and subject to the further instructions of each of them.

Karen and Jeffrey emphasized in submissions that Ms Blackadder, after leaving the draft Wills with Ken and Irene agreed to only be in contact “if” (emphasis added) any changes were required: Tcpt, 18 March 2021, p 864(14-43); see Plaintiffs’ Submissions In Reply dated 16 March 2021 at [10].

On 31 March 2017, Ms Blackadder stated that Jeffrey had called her to express concerns that Ken and Irene were said to have expressed regarding “those female lawyers who came to see them”. However, Jeffrey’s evidence stated he called Ms Kamal, not Ms Blackadder, to express concerns about the “female lawyers”, which is confirmed by an email Ms Kamal sent to Ms Blackadder (Ex J3/622b).

Later that day, Jeffrey called Ms Kamal to say that Ken and Irene were ready to execute the Wills. A file note of this telephone call is found at Ex PMB/5.

The Wills were executed on 1 April 2017.

It is significant that Ms Blackadder, despite having been informed about his, and her, condition, from the very beginning of receiving information about Ken and Irene, and in purportedly acting for each of them, did not require a medical assessment to be conducted if she was not content to accept the assessments made by Dr Barnett. Often, when a legal practitioner has concerns about a will-maker’s testamentary capacity, she or he will seek the opinion of a medical expert to assess capacity before going further. There is usually an assumption that medical evidence going to the state of health and the mental state of the will-maker will be informative.

The Law Society guidelines, a copy of which Ms Blackadder attached to her affidavit, relevantly, states:

Yet, in this case, even though steps were taken to enquire about a medical assessment, and despite Ms Blackadder, having read the medical assessments from Dr Barnett, no assessments were obtained by Ms Blackadder. There was no evidence explaining why contemporaneous independent medical assessments were not pursued or from whom instructions were given, if they were, to not pursue such assessments.

Ms Blackadder stated in cross-examination that she believed Ken’s difficulty hearing was the extent of either of Ken or Irene’s medical problems: Tcpt, 2 February 2021, p 96(30-37). I am unable to accept this evidence.

There is a conflict between when Ms Blackadder’s instructions ceased and when she stopped acting for Ken and Irene. Ms Blackadder stated, in cross-examination, that her instructions from Ken and Irene ceased before the execution of the Wills on 1 April 2017: Tcpt, 2 February 2021, p 33(40-43). However, there is evidence that she continued to receive correspondence from Mrs King, Graham Shepherd, and from Karen and Jeffrey, in regard to Irene and Ken until her employment with Emprise Legal came to an end in early 2018.

Ms Blackadder also confirmed that she never received instructions from Ken, Irene, or their attorneys, to cease to act for Irene and Ken. Nor did she send any correspondence terminating, or confirming the termination of the retainer to Ken or Irene.

The Defendants submitted that Ms Blackadder had received her instructions from Karen and Jeffrey, rather than from Irene and Ken.

Although it was thought to be lost, on the fourth day of the hearing, the Plaintiffs produced the original file note of Ms Blackadder from her meeting with Ken and Irene. Some time was spent on the File Note, (Ex PB), which provided (with minor corrections):

There was some controversy about the date the file note was drafted. The handwritten file note bears the date 20 May 2017, but the word “March” is written over the top of “May”. In her initial statement dated 28 November 2017, Ms Blackadder said the events of the meeting occurred on 20 May 2017. However, in her later affidavit, sworn 29 October 2018, she stated the initial meeting occurred on 20 March 2017 and that the file note had been written contemporaneously.

During the first day of the trial, Ms Blackadder was cross-examined about the date of the file note (Tcpt, 2 February 2021, p 84(38)-88(37)):

The Defendants submitted that, having regard to the original date of the file note before amendment and the inconsistent dates between pages, it should be inferred that page 3 of the file note was contemporaneous with the 20 March 2017 conference, but pages 1, 2 and 4 were written in May 2017, after the commencement of the proceedings in NCAT. Alternatively, they submitted that if the Court was not prepared to draw that inference, the file note should be given little weight. They also submitted that the contradictions and assertions in Ms Blackadder’s evidence suggested that she tried to cover up facts to protect herself.

In submissions in reply, counsel for the Plaintiffs submitted that an allegation of this severity should have been pleaded and no notice was given to Ms Blackadder or to the Court that such a serious allegation was to be levelled.

The form of the file note does lead to some disquiet about the date on which it was prepared. It is difficult to accept the explanation that a legal practitioner would make mistakes as to the date of a document. However, I am unable to conclude that Ms Blackadder wrote it in May 2017 and that she had changed the date in an attempt to mislead the Court. In this regard, I remember s 140 Evidence Act 1995 (NSW).

There is no record of what Ms Blackadder said, saw, or heard, upon each attendance on 20 March and 27 March 2017 that led her to consider that that the test in Banks v Goodfellow had been satisfied. She did not outline the matters about each having the capacity in respect of each of the elements referred to in that case. The file note does not include the questions asked or the answers given, going to the issue of the capacity of Ken or Irene.

In this regard, Ms Blackadder’s lack of understanding of Banks v Goodfellow, so far as it relates to the last two elements referred to therein concerning capacity, is to be demonstrated by the following passage of her evidence in cross-examination, when she was asked about her consideration of the prior Will (Tcpt, 3 February 2021, p 130(06-15), p 131(25-28)):

What was required of Ms Blackadder was the exercise of judgement about the condition of each of Ken and Irene. What she ought to have done in this case depended upon all the circumstances including the age and health of each of Ken and Irene; her knowledge of, and familiarity with, each of them; the presentation of each of Ken and Irene to her; and whether there were any “red flags” suggesting a possible challenge to capacity.

Relevantly, in this case, what might have been regarded as “red flags” included that Ken had been unwell and Irene was in hospital; that there had been a diagnosis, in the case of each of them, of a condition likely to affect capacity; that each of Ken and Irene was making significant changes to his, and her, Will, respectively; that each Will failed to make any, or any reasonable provision, for a beneficiary or beneficiaries, named in a prior Will, including Steve and Cathie; that someone who had not previously been named as a beneficiary in any prior Will was a substitute beneficiary, with Karen, of the whole of his and her estate; that neither Ken, nor Irene, was an existing client of Ms Blackadder’s firm; and that there was a solicitor, who had been the long-time solicitor of both Ken and Irene, and who had prepared at least one prior Will.

Unfortunately, I find that I cannot attach a great deal of weight to the evidence of Ms Blackadder for the reasons set out above. Importantly, she failed to make any, or adequate, inquiries as to the capacity of each of Ken and of Irene. This was a case where the “red flags” referred to above existed.

I turn next to the evidence of Mrs King.

In around 2012, Mrs King began to assist Ken and Irene in paying their bills. In around 2015, Cathie asked Mrs King to forward to her any bills she received from Ken and Irene as she would assist Ken and Irene herself. Mrs King stated that Irene was angry that Cathie had taken over payments of the bills as she said she had not asked Cathie to do so.

This began a series of “suspicions” that came to be held by Mrs King regarding Cathie and Steve. Mrs King gave evidence that in around late 2015, Irene and Ken began to express concerns to her about their money, in particular, that they had not “seen a bank statement in such a long time”. Mrs King accepted that Irene was still signing cheques written out by Cathie and Steve in 2017: Tcpt, 4 February 2021, p 226(10-25), p 226(45)-227(30).

Mrs King stated that around 18 March 2016, Irene and Ken showed her a copy of the 2015 Wills, in which the paragraphs regarding gifts to Paula and Paul McMullen, Rodney Keytes and Kevin Owens were crossed out. According to Mrs King, Irene said they had been “told to cross the other people out, so Steve and Cathie will get everything”. (Whilst it may be that she was told this, I do not accept that Steve or Cathie had done so. Mrs King made no enquiry of either of them to confirm what she had been told.)

Mrs King said she assumed Mr Cummins had advised Ken and Irene to cross the paragraphs out. Her reasons for assuming that fact were not made clear. Mrs King accepted in cross-examination that the conversation may have taken place on 9 March 2016, rather than on 18 March 2016, as on the later date, Ken was in St Vincent’s Hospital and Irene was living with Steve and Cathie: Tcpt, 3 February 2021, p 189(36-48); Tcpt, 4 February 2021, p 267(03-05).

Mrs King stated that she had taken copious notes of the conversation and a photograph of the Will. Her “copious notes”, produced to the Court on the third day of the hearing, were limited to a diary entry of 9 March 2016, comprising only “three to four words” and did not in fact record her conversation with Irene: Tcpt, 4 February 2021, p 267(34-39), p 268(03-04).

Shortly after this meeting Mrs King contacted Mr Cummins and relayed the content of that conversation. When asked why she contacted Mr Cummins, if she had assumed he had advised Ken and Irene to cross-out the paragraphs in their 2015 Will, she stated “Irene wanted me to”: Tcpt, 3 February 2021 p 191(02).

Shortly afterwards, Mrs King stated that Mr Cummins told her he had already visited Irene and Ken at a time when Mrs King was not present. Mr Cummins’ evidence was that he did not have any contact with Irene and Ken between May 2015 and January 2017.

Mrs King stated, that on two separate occasions in, or about late 2015/early-2016, Irene and Ken had told her they wanted to make changes to their Powers of Attorney and Guardians because they did not “trust Cathie and Steve anymore” and that were not sure if they “trust[ed] Mr Cummins anymore either”. A file note from Mr Cummins dated 17 January 2017 and 20 January 2017 shown to Mrs King at cross-examination contradicts each of those claims.

Mrs King also stated that after Irene broke her leg on about 4 February 2017, Irene became “more insistent about her concerns” regarding Cathie’s and Steve’s management of her money.

(Cathie stated that in February 2017, neither Ken, nor Irene, had asked her about their bank statements, mail, or cash, which she had withdrawn on their request. I accept her evidence in this regard.)

On 13 February 2017, Irene asked Mrs King to take Ken to the bank to access their bank statements and withdraw $2,000 in cash, because Irene felt it may be the last opportunity to do so before she and Ken were placed into Harbison Care.

Mrs King also said she was unsure whether she honestly believed Ken and Irene would not be allowed to leave Harbison Care once they were admitted. I found her evidence on this topic quite implausible considering that Mrs King’s own mother was also a resident of Harbison Care and that it was likely that she would have known that residents were able to leave if necessary and if they were capable of doing so.

On that same day, Mrs King took Ken to St George Bank in Bowral, where the teller gave Ken an envelope with his and Irene’s bank statements and another envelope with $2,000 in cash. During this visit, Mrs King arranged for herself to become a signatory to Ken and Irene’s bank account. There is no evidence that either Ken or Irene had asked for this to be done. Indeed, Mrs King accepted in cross-examination, that the actions taken contradicted her affidavit evidence to the effect that she had started to “step back” from caring for Ken and Irene at this time: Tcpt, 4 February 2021, p 251(04-16).

Mrs King then took Ken to see Mr Cummins, who requested she leave the room during the meeting. After the meeting, Ken was said to be crying, and he requested that he be taken back to Irene. Mrs King returned with Ken to the Hospital where they then met Steve, who according to Mrs King’s affidavit sworn 4 December 2018, took the $2,000 that had been withdrawn from the bank.

Mrs King later accepted, in cross-examination, that in fact, she had given Steve the cash, saying “This is too complicated”: Tcpt, 4 February 2021, p 237(28-33).

Karen and Jeffrey submitted that all of these events demonstrated that even before Karen and Jeffrey had returned to Australia, Irene and Ken wanted to change their Wills. I am unable to accept this submission as there is no evidence to substantiate it.

Mrs King also stated that Irene and Ken again asked her to contact Mr Cummins on their behalf to change their Powers of Attorney, and Guardianship, documents and their Wills.

On 21 February 2017, Mrs King contacted Mr Cummins to relay this request but was told that Ken and Irene had been “deemed unfit to make decisions”, the Guardianship had “kicked in” and there “is nothing you can do”.

Shortly thereafter, Ken and Irene were moved to Harbison Care. Mrs King maintained that Ken and Irene repeatedly expressed a desire to return to “Southdowns”. She admitted in cross-examination, that she had made statements to them that suggested Steve and Cathie did not want them to go back to “Southdowns”: Tcpt, 4 February 2021, p 242(22-30). She also admitted that it was “possible” that she had told Ken and Irene that it was reasonable for them to fear that Steve and Cathie might use their Powers of Attorney to sell Ken and Irene’s property: Tcpt, 4 February 2021, p 294(15) - 295(05).

There was simply no legitimate basis for instilling such a fear in Ken and Irene, and if she said such things, its effect was to embed the illegitimate fears that each of them might have voiced about the conduct of Steve and Cathie.

Mrs King stated that it was shortly after this conversation that Ken and Irene both stated they wished to see a new solicitor. On 8 March 2017, Mrs King contacted Ms Blackadder and arranged for her to visit Irene and Ken. (Again, bearing in mind the length of time that Ken and Irene had retained Mr Cummins, it is difficult to accept her evidence in this regard.)

Her account of the initial meeting with Ms Blackadder and Ms Kamal is largely in keeping with that of Jeffrey and Karen’s recollection above, except, that Mrs King accepted that at the meeting, Ms Blackadder was told that a doctor had assessed Ken and Irene as lacking mental capacity and that their longstanding solicitor considered that they did not have the capacity to make decisions about legal issues: Tcpt, 4 February 2021, p 301(47)-302(09).

In her affidavit sworn 4 December 2018, Mrs King stated that at the time of making their 2017 Wills, Irene and Ken did not have “poor short-term memory”. Whilst she admitted to observing some age-related forgetfulness, she did not, otherwise, believe Ken to be suffering from dementia. She stated that Irene “was very sharp and her memory was sound”. She also stated that they understood why they were at Harbison Care and that they would need assistance if they returned to “Southdowns”.

In cross-examination, Mrs King accepted several propositions which give rise to further questioning the capacity of Ken and Irene including that Irene was confused about why Ken needed to take medication in April 2016 (Tcpt, 3 February 2021, p 196(21-23)); that Irene often asked her to purchase items that she already had a reasonable supply of (Tcpt, 3 February 2021, p 197(44-46)); and that paying bills was “a bit beyond” Irene at this stage (Tcpt, 3 February 2021, p 194(36-37)).

She also accepted that she, herself, had referred to Ken as having dementia (Tcpt, 3 February 2021, p 199(40-42); Tcpt 4 February 2021, p 252(26-29)) – namely in a text message of 20 October 2016 to Cathie, which described Ken as having dementia (Ex J3/279) and a Facebook message on 8 March 2017 from her to Ms Blackadder which also stated that “Ken is suffering from a form of dementia” (Ex J3/489AA).

Mrs King also accepted that she had received an email from Cathie on 8 March 2017, which referred to the fact Irene and Ken had been assessed by a geriatrician to be suffering from moderate to severe dementia and that each was without capacity to provide for themselves. Her overall contention was that while she stated on several occasions that Ken did have dementia, she did not personally believe either Ken or Irene was suffering from dementia: Tcpt, 3 February 2021, p 200(40) and Tcpt, 4 February 2021, p 253(13-16). She gave no reason for not disputing, contemporaneously, the truthfulness of the statements in this email (Tcpt, 4 February 2021, p 247(22)-246(23)) if she, then, did not believe the assertions to be true.

The Defendants contended that Mrs King’s evidence was designed to place Steve and Cathie in a bad light to Ken and Irene and also to the Court.

Karen and Jeffrey conceded that Mrs King, in some ways, may have been “pouring a bit of oil on the fire” about Steve and Cathie having organised the admission to Harbison Care.

In my view, Mrs King wholeheartedly formed a view about Steve and Cathie, and played such an intrusive role in the events that had occurred based upon that view, it affected her ability to form a reasoned conclusion on matters at the time. I have referred to a number of aspects of her evidence that I am unable to accept as correct.

I have borne in mind Mrs King’s evidence that she has no interest in the outcome of the case. However, my overall assessment of her was that her hostility towards Steve and Cathie and her readiness to think the worst of them in February and March 2017, and subsequently, including her suspicions of them, which she repeated several times during her oral evidence, but the basis of which was not the subject of any supporting evidence, led her to be too ready to paint an unreasonable and unjustified picture of each of them.

I have no doubt that she communicated the unreasonable and unjustified picture to Ken and to Irene which had the effect of inflaming each of them to take a particular view of Steve and Cathie. I am cautious about those parts of her evidence which are disputed by Steve and Cathie. Indeed, where there is conflict in the evidence, I accept the evidence of Steve and Cathie rather than the evidence of Mrs King.

I next turn to the evidence of Mr King.

Mr King stated that from around 2015 onwards, Ken and Irene became particularly concerned about Steve and Cathie finding out when Mr King was taking them to medical appointments. He recalled an incident in about 2015, when Irene had a urinary tract infection and an ambulance was called. Irene is said to have told Mr King: “Please don’t tell Steve and Cath… I don’t want them to find out and put me in a nursing home.”

In cross-examination, Mr King stated that he had never had any discussions with Irene about nursing homes prior to that time and that her statement came out of the blue: Tcpt, 16 February 2021, p 618(32-42). (There was no evidence about any mention of a nursing home in 2015.)

Mr King also recalled an incident in about 2015 when he took Ken to see the family doctor, Dr Conomos. Ken told Mr King: “I don’t like that cheap doctor that Steve and Cath have been taking me to. Thanks for taking me to see Dr Conomos… Best not to tell Steve and Cathie about this.”

In his affidavit, Mr King stated that, from around late 2015 or early 2016, Ken and Irene began to complain about not seeing any mail or bank statements, “on almost a weekly occurrence”. When Mr King suggested that they should ask Steve and Cathie, Irene would often say words to the effect of: “I’ve asked before and it didn’t get me anywhere. It will upset them.”

Mr King alleges that he had a telephone conversation with Cathie shortly thereafter about Irene’s concerns, in which Cathie stated of Irene: “That bloody bitch. She gets all confused. Loses it, and wants to take over. It is easier not to take it over. I only take the NRMA open road.”

In his affidavit, Mr King stated that he disagreed with Cathie’s statement that Ken was placed into Harbison Care on the basis of cognitive impairment. Mr King believed Ken needed to be in Harbison Care “to be close to Irene and to avoid the distress of being apart from her.”

Mr King believed Ken’s behaviour did not change at this time and that he did not act dazed, or confused, about where he was, or that he was there to be with Irene. Mr King recalled that Ken regularly asked about his land and pet bird, that Ken was not unco-ordinated, that he knew who Mr and Mrs King were when they visited, and would ask about people they both knew. Mr King also observed that Ken dressed himself, fed himself and did not skip meals.

In his affidavit, Mr King stated that he disagreed with Cathie’s statement that Irene was placed into Harbison Care on the basis of advanced dementia. Mr King believed that Irene needed to be in Harbison Care “because of the injury to her leg”.

However, in cross-examination, Mr King accepted that, towards the end of 2016, Ken and Irene were having significant problems living by themselves at “Southdowns”, even with the assistance they were getting from the Curcurutos and the Kings: Tcpt, 16 February 2021, p 619(33-36).

Mr King stated that in or about late February or early March 2017, Ken and Irene asked the Kings if they could arrange Mr Cummins to visit them to discuss changes to their Powers of Attorney, Guardianship and Wills.

Mr King stated that, shortly thereafter he “attended Harbison Care with Tracie to inform Ken and Irene as to my discussion with Mr Cummins” and the fact that Mr Cummins refused to visit the Shepherds. However, in cross-examination, Mr King stated that it was Mrs King who had spoken to Mr Cummins on the telephone about the Shepherd’s request: Tcpt, 16 February 2021, p 623(24-26).

Mr King accepted that this contradicted his statement in his affidavit that he went to Harbison Care to inform Ken and Irene as to “my” discussion with Mr Cummins: Tcpt, 16 February 2021, p 623(31)-624(07).

According to Mr King, Irene stated “we are in trouble. I need Brian here. Brian can help us.” Irene asked the Kings to go to “Southdowns” and look for Karen’s number. Mr King stated that both Ken and Irene were crying. This evidence seems somewhat implausible as the email dated 1 March 2017 sent by Cathie contemporaneously outlined the view expressed by Irene about contacting Karen and letting her know of the events that had occurred.

Shortly thereafter, Mr King went to “Southdowns” and found Karen’s telephone number but noticed that all of Ken and Irene’s business papers were missing. In cross-examination, when asked how he knew that the papers were missing, he stated that Irene had told him where they were shortly after their conversation: Tcpt, 16 February 2021, p 625(07-25).

Mr King also stated that Ken told Mr King where “a lot of the business papers were… and said to get them and… to secure them”: Tcpt, 16 February 2021, p 625(31-48). However, Mr King did not find any documents in the places that Ken had told him they would be: Tcpt, 16 February 2021, p 626(03-14).

In his affidavit, Mr King stated that, on or about 8 March 2017, he and Mrs King had received an email from Cathie, suggesting relocating Ken’s bird, “Pinky”, from “Southdowns”. When the Kings showed the email to Ken and Irene, Ken stated “They’re moving Pinky, because they don’t want us going back to “Southdowns”” and Irene stated “We’re going to need a lawyer to get us out of this mess. Can you find someone to help us please?” He did not give any evidence about explaining to Ken or Irene why it might be beneficial to relocate the bird as, then, no one was living at “Southdowns”. Mr King did say, however, that he told Ken and Irene that it would be very difficult for them to return home bearing in mind their mobility as he and Tracie would not be there all the time to help them: Affidavit, Damian King, 4 December 2018 at par 48.

Mr King alleged that, in mid-march 2017, he had a conversation with Ken and Irene in which they expressed their mistrust of Mr Cummins. Mr King stated Ken said words to the effect of: “Steve and Cathie lock us in here on the documents he had us sign… I’d rather burn ‘Southdowns’ to the ground than let Steve have it”: Affidavit, Damian King, 4 December 2018 at par 55. Again, he did not give any evidence about explaining to Ken or Irene that they were not locked up in Harbison Care, but that they were there because of the medical conditions from which each was then suffering.

In mid to late March 2017, Ken and Irene asked the Kings if they had found them a new lawyer yet. Mrs King stated that she had found Ms Blackadder but “she will work for you both, and can’t take instructions from us”. Ken is said to have asked Mr and Mrs King to organise a meeting with Ms Blackadder and Irene stated “the sooner you can get the lawyer here, the better”.

On 20 March 2017, Mr King met with Mrs King, Jeffrey, Karen, Ms Blackadder and Ms Kamal at a cafe in Bowral. They then all went to Harbison Care to see Ken and Irene. In cross-examination Mr King stated that he saw Ms Blackadder speak to Ken without Irene being there at the same time: Tcpt, 16 February 2021, p 630(17-26). Mr King also stated that Ms Blackadder spoke to Ken near the window, whilst Irene was in her bed: Tcpt, 16 February 2021, p 630(41-48).

In cross-examination, it was Mr King’s contention that Ken and Irene were mentally capable of understanding the Powers of Attorney and Enduring Guardianship documents that were signed at the time of the meeting: Tcpt, 16 February 2021, p 629(19-22).

In cross-examination, Mr King stated that, after 20 March 2017, he was in contact with Karen and Jeffrey once or twice a week: Tcpt, 16 February 2021, p 634(43-47). According to Mr King, they discussed “the best way to care for Ken and Irene” and how “to get the bank statements sorted out. It was mainly around the power of attorney and what needed to be done”: Tcpt, 16 February 2021, p 634(49) – p 635(10). When it was put to Mr King that these were not conversations he was having with Ken and Irene, he replied: “Yes, they were, because… they were asking us to help them”: Tcpt, 16 February 2021, p 635(12-25).

Mr King stated that in about early April 2017, he had a discussion with Ken and Irene in which he asked “Did Priscilla come down and sort out your Wills the way that you want them?” According to Mr King, Irene stated: “Yes, we’re very happy now. Everything will go to Brian and Jeffrey” and Ken stated: “We’re both happy with the decision we’ve made”.

Mr King alleged that, in April 2017, he had a conversation with Ken and Irene in which Irene stated that Steve had visited and been “angry and yelling… saying ‘why did you take us out of the Wills. What do you think you are doing?’” Mr King stated that Ken told him: “We’re scared. We’re sitting ducks here and Steve, Cathie and Sylvia come and go as they please. We need to get back to the safety of ‘Southdowns’”. He did not explain how Steve and Cathie had come to know that Ken and Irene had made new Wills or that they had been “taken out” of these Wills.

Mr King stated that, after 20 March 2017, on multiple occasions Ken and Irene said words to the effect of: “We are so grateful to you and Tracie for helping us out of this mess” and “We are glad that you and Tracie and Brian and Jeffrey are in charge now”: Affidavit, Damian King, 28 May 2019 at par 16.

In his affidavit sworn 4 December 2018, Mr King stated that he did not believe that Ken and Irene suffered from a “complete lack of insight” at the time of making their 2017 Wills. He asserted that, in late March to early April 2017, he had several conversations with the Ken and Irene in which they displayed insight. In these conversations, Irene would acknowledge her broken leg but stated that she wanted to recover at home with 24 hour care. Ken stated that he was worried about his property and needed to get back to it. Similarly, when Mr King visited Ken and Irene in February 2017, Ken would often ask about “Southdowns” and the animals.

In his affidavit sworn 4 December 2018, Mr King stated that he did not believe Ken and Irene suffered from a “very poor short-term memory” at the time of making their 2017 Wills. He also stated that he did not believe Ken and Irene were “disoriented as to time and place” at the time of making their 2017 Wills. Nor did he believe that Ken and Irene were suffering from “insane delusions” at the time of making their 2017 Wills.

Mr King observed that whilst Ken required some prompting with short term memory, he did not observe any change in Ken’s memory following his fall in February 2016. Mr King also did not observe Ken to change topics midway through a conversation, repeat himself frequently or take a lot of time to look for things. This is inconsistent with other objective evidence.

Whilst Mr King recalled Irene saying words to the effect of “Ken’s memory is getting bad” around early 2016 and thereafter, he did not hear Irene say “Kenny’s losing it” or complain about his driving.

Mr King observed that Irene was “sharp as a tack” and her “memory was flawless”.

Mr King alleged that, when he visited Ken and Irene at Harbison Care, they both knew exactly where they were and would often say words to the effect of “We hate this nursing home. We just want to go home” and “We want to go back to ‘Southdowns’”.

According to Mr King, he observed Ken to be confused on two occasions. The first was in or around March 2016, when Ken was in St Vincent’s Private Hospital. Ken said words to the effect of “where am I?” and “why am I here?” and did not recognise his own reflection. However, Mr King observed that Ken was no longer confused within a few days of returning to “Southdowns”.

The second occasion was on 18 October 2016, when Mr King visited Irene and Ken at “Southdowns” at around 6:00 p.m., after Irene had a fall. Mr King sent a text message to Cathie the following day (Ex J3/276A-277):

Mr King stated that he still had grave concerns about the intentions of the Curcurutos, and whether all of their actions and motivations were designed to inherit “Southdowns”.

Karen and Jeffrey submitted that Mr King was a “disinterested person” and, therefore, his evidence as to Ken and Irene’s understanding of the nature of making the Wills should be believed.

I do not accept the submission about him as, in my view, Mr King’s evidence suffered the same limitation as the evidence of Mrs King. In my view, he too, was so suspicious of the motivations of Steve and Cathie, that he was unable to express an objective view of their conduct and the state of health of Ken or Irene. Where there is conflict in his evidence and the evidence of Steve or of Cathie, I prefer the evidence of Steve and Cathie.

Each of the attesting witnesses to Ken’s signature and Irene’s signature on his and her 2017 Will respectively also gave evidence.

As stated, Ross Gordon was one of the two attesting witnesses of Ken’s 2017 Will and Irene’s 2017 Will. In his affidavit, sworn 8 November 2018, Mr Gordon stated that, on or about 1 April 2017, he was visited by Karen and Jeffrey. Mr Gordon's niece, Ms Baird, was also present. They arrived at his home at about 7.30 a.m. but he could not remember whether or not he was expecting them: Tcpt, 10 February 2021, p 514(02-14).

Jeffrey told Mr Gordon that he and Karen were going to visit Ken and Irene at Harbison Care that day and that they needed to have Irene and Ken sign some documents. Neither specified that the documents to be signed were Wills: Tcpt, 10 February 2021, p 515(35-47).

When Mr Gordon stated that he wanted to buy a tree from a nursery in the Southern Highlands, Jeffrey invited him and Ms Baird to accompany them. In cross-examination, Mr Gordon could not identify a specific nursery or the type of tree that he wished to purchase in the Southern Highlands: Tcpt, 10 February 2021, p 515(15-33). He also admitted that, ultimately, he did not visit a nursery on the day: Tcpt, 10 February 2021, p 515(21-23).

Mr Gordon, Ms Baird, and the Plaintiffs all travelled to the Southern Highlands in the same car. There was no evidence about any discussions about the purpose of the visit during the car ride.

Upon arriving in the Southern Highlands, all attended Ken’s and Irene's room at Harbison Care. Mr Gordon recalled Karen having a conversation with Irene about “the state of her health and how she felt and what had been going on” and “the same with Ken”: Tcpt, 10 February 2021, p 521(01-06).

In his affidavit, Mr Gordon stated that he then overheard a conversation between Ken and Irene whilst he was in conversation with Ms Baird and the Plaintiffs but could not recall whether they were conversing when he heard Ken and Irene speaking: Tcpt, 10 February 2021, p 520(07-09).

He also stated that he heard Irene say to Ken "[R]ead them out to me and tell me what you think about them" and "Do you think they are okay?" He heard Ken reply, "Yes, they are good. That's what we wanted." However, in cross-examination, Mr Gordon stated that Irene prompted Ken several times during their conversation, saying words to the effect of "Is that what you want?" He also said that Irene hurried Ken, saying words to the effect of "Have you read it?": Tcpt, 10 February 2021, p 518(27-43).

Mr Gordon stated that, during Ken's conversation with Irene, Ken had documents in front of him: Tcpt, 10 February 2021, p 519(01-02). Mr Gordon thought that Ken and Irene "must have been in receipt of those documents when [he] arrived": Tcpt, 10 February 2021, p 520(47-49).

Jeffrey left the room and Ken signed one of the documents, which Mr Gordon later found out to be Ken's Will. In his affidavit, Mr Gordon stated that Irene said to Ken, "Are you sure you're happy with that?" to which Ken replied, "Well I signed it didn't I?" Irene then said, "Yes you did. Give me mine, I'll sign it now".

However, in cross-examination, Mr Gordon accepted that Irene prompted Ken to sign the documents several times, before he did so: Tcpt, 10 February 2021, p 521(46)-522(13). He was unable to distinguish whether Irene said words to the effect of "Sign them" or "If you're happy with it, sign them": Tcpt, 10 February 2021, p 519(14-20). He also saw Irene “snatch” the documents out of Ken's hand once he had signed it: Tcpt, 10 February 2021, p 521(25-31).

Mr Gordon then witnessed Irene sign a document, which he later found out to be her Will.

In cross-examination, Mr Gordon accepted that he did not see either Ken, or Irene, read the document that each had signed: Tcpt, 10 February 2021, p 521(36-40); p 523(38-45).

At this time, according to Mr Gordon's affidavit, Karen said to Irene and Ken, "Jeffrey has gone to find some people to be witnesses before you sign them." Irene replied "Well we've signed them now. Ross and Lynn are here, can't they be the witnesses?" Mr Gordon and Ms Baird both confirmed that they had seen Irene and Ken sign their wills and would be happy to witness the Wills, which they did.

In cross-examination, Mr Gordon confirmed that he had not read the documents he witnessed: Tcpt, 10 February 2021, p 524(20-21).

In his affidavit, sworn 7 November 2018, Mr Gordon affirmed that, on or about 1 April 2017, the documents dated 27 March 2017 were signed by Ken and Irene as their wills in the presence of Mr Gordon and Ms Baird. Mr Gordon also affirmed that, at Ken and Irene's request, he and Ms Baird attested and subscribed the Wills in the presence of Ken and Irene and each other.

As stated above, the other attesting witness, Ms Baird did not give other than formal evidence confirming, in an affidavit of attesting witness sworn on 6 November 2018, that the 2017 Wills were signed by both Ken and Irene in the presence of herself and Mr Gordon.

I next turn to the evidence given by Mr Cummins.

It was Mr Cummins who had drafted Advanced Care Directives dated 4 December 2014 for Ken and Irene. Whilst there is no reference to these documents in his affidavit, a copy of them formed part of Ex J3/88-91 and he confirmed that he had done so in cross-examination.

He had also drafted Powers of Appointment and Appointments of Enduring Guardians each dated 21 May 2015, for Ken and Irene in which each named the other as the primary Attorney and Guardian respectively, and in the event that she, or he, was unable to act, named Steve and Cathie as joint Attorneys and Guardians.

On 5 May 2015, Ken and Irene conferred with Mr Cummins at his office. They discussed their existing Wills with him and gave instructions for new wills to be prepared for each of them. Although initially, they gave instructions that if the other did not survive, Mr and Mrs King were to receive the residue of his, and her estate, respectively, towards the end of the conference, they changed this part of the instructions so as to omit Mr and Mrs King, saying that they would provide instructions later as to the identity of the residuary beneficiary. They said that they would return on 12 May 2015 to sign the wills.

On 12 May 2015, Ken returned to Mr Cummins’ office for a conference and gave instructions for the preparation of his Will. Ken also gave instructions that Irene wanted a Will in the same terms as to substitute beneficiaries if Ken did not survive her. A copy of the instructions, which Mr Cummins recorded in writing, was annexed to his affidavit sworn 30 October 2019.

Mr Cummins prepared a Will for Ken and for Irene based on those instructions. On 21 May 2015, Irene came into Mr Cummins’ office for a conference, initially alone, at which time she repeated the instructions that Ken had previously given to Mr Cummins. Later, Ken joined the conference. Each was given a copy of the Wills, which he and she read. Each confirmed the wish to sign, and then each of Ken’s 2015 Will, and Irene’s 2015 Will, was executed, the signature of each being witnessed by Mr Cummins and his secretary, Natalie Sommer.

Mr Cummins received no further instructions from either Ken, or Irene, to change the 2015 Wills.

Mr Cummins had no contact with either Ken or Irene between May 2015 and 17 January 2017. Whilst he did not mention the following events in his affidavits, he confirmed the following events in cross-examination.

Irene telephoned Mr Cummins on 17 January 2017: Tcpt, 10 February 2021, p 492. His file note reflecting the telephone call stated (Ex J3/313):

Following this telephone call, Mr Cummins went to visit Ken and Irene at “Southdowns” on 20 January 2017. He made a contemporaneous diary note of the conference, which is in the following form (Ex J3/318-320):

In cross-examination, Mr Cummins stated that he observed both physical and mental frailty in each of them, although he thought Ken’s condition was worse than Irene’s. He gave evidence (Tcpt, 10 February 2021, p 511(17-21)) that:

On 13 February 2017, Mrs King brought Ken in to see Mr Cummins. Once again, he made a contemporaneous diary note which is in the following terms (Ex J3/335):

Mrs King telephoned Mr Cummins on 14 February 2017. His contemporaneous diary note of the conversation was in the following form (Ex J3/335A):

On 15 February 2017, Mr Cummins wrote to Steve and Cathie because he thought the guardianship powers for Ken and Irene might need to be activated: Tcpt, 10 February 2021, p 497(35)-(42). However, he did not become aware that the Enduring Power of Attorney or the Enduring Guardianship documents that he had drafted had been activated, or subsequently revoked, until March 2017: Tcpt, 10 February 2021, p 497(17-28).

Importantly, as it was close to the time of the events, Mr Cummins wrote a statement dated 27 April 2017 about Ken and Irene (Ex J3/648-649) which included:

I found Mr Cummins to be a careful and clear witness who ensured that he gave only his best recollection of the events. Where he did not remember, he said so. He was cross-examined on his personal relationship with Cathie’s mother, which had commenced in October 2016 and his failure to disclose that relationship to either Ken or Irene. On this topic, I accept his explanation that since he had not been asked to effect any alterations to the Will of Ken and of Irene, indeed, had not really been given any instructions from either of them after that relationship had commenced, there was no conflict of interest and no consequential need to disclose the relationship to them: Tcpt, 10 February 2021, p 498(35) - 499(09).

I am satisfied that he is, and was at the time of the events about which he gave instructions, a competent, intelligent, and careful, solicitor, who, in 2017 was extremely experienced in dealing with wills. I am also satisfied that plainly, he was doing his best to assist the court, and I accept his evidence as truthful. Much of his evidence was confirmed by the contemporaneous diary notes that he had made.

Mr Cummins was also cross-examined on the statement that he had made, and signed, in April 2017. Rather than regarding his doing so as worthy of criticism, it was, in my view, commendable that he had done so, as there was a written, and almost, contemporaneous, version of events that he had made and signed, and which may have been relevant, and admissible, in the event that he became unable to give evidence at the hearing, over three and a half years later. It goes without saying that his recollection of relevant events then would have been better than at a hearing some years later.

I have no hesitation in accepting Mr Cummins as a witness of truth.

Ms McKibbin gave evidence that on 3 April 2015, she had first met Ken and Irene at an Easter lunch with the Curcuruto family. Present were Steve, Cathie, and Sylvia, amongst others and the lunch had been at the Sutton Forest Inn.

In May 2015, she saw Ken and Irene again at the christening party for Steve’s and Cathie’s children. She observed that Steve was supporting an unsteady Ken and Irene to enter the church.

At every family gathering that she subsequently attended, Ms McKibbin “observed Cathie and Steve going out of their way to provide help and support to Ken and Irene – moving their chairs, checking they were comfortable, bringing them drinks and food, and making sure they were involved in conversation”.

Throughout 2015 and 2016, Ms McKibbin accompanied John to a number of medical appointments. At the office of the doctor, they coincidentally saw Ken and Cathie, on at least two occasions.

Ms McKibbin did not ever visit Ken and Irene at “Southdowns”, but in the last week of February 2017, she and John began visiting them at Harbison Care. She was informed by a staff member that the nature of Irene’s fracture meant she was not allowed to put weight on her leg and needed 24-hour care. At this visit, Irene stated that they were pleased to be at Harbison Care, saying “I’m glad we are in a room together, with our own bathroom and we don’t need anyone else”. Ken said “I like looking at the trees”. Ms McKibbin acknowledged that this was, in each case, a rational conversation: Tcpt, 16 February 2021, p 647(20).

Ms McKibbin recalled that on the first occasion she had visited them at Harbison Care, Irene could not remember her name and had referred to her as “Thingamebob”. Irene also said that she did not need to be in hospital anymore and that she was ready to go home. She said she was sick of the nurses and the doctors and that she did not need them anymore. She also said that she was sick of being in hospital and that she would “be better off in my own bed”.

Each time Ms McKibbin and John visited them, Ken and Irene repeated a similar conversation. Irene said words to the effect “I don’t need looking after- I’ll be fine at home” and “I want to go home” or “Are you here to take me home?”

In one of Ms McKibbin’s first visits to visit Ken and Irene, she went with John and Cathie. After Cathie left the room, Ms McKibbin recalls that Irene said to her “It’s alright. We know what they’ve done for us. We’ll make sure they are recompensed”: Affidavit, Denise Maree McKibbin, 7 March 2019 at par 19.

On a visit in mid-March 2017, Ms McKibbin had a conversation with Irene to the following effect:

I have already referred to occasions in which Ms McKibbon said Irene made disparaging, or derogatory, comments about Karen. From about April to May/June 2017, Irene repeated words to that same effect every time Ms McKibbin visited. However, this is after each of the 2017 Wills were signed.

On 22 March 2017, Ms McKibbin visited Ken and Irene, at which time Irene said that they “signed some papers so I can go home. I think that’s what we’ve just signed, some papers so that we can go home”. On the following two visits, Ken’s and Irene’s conversations were almost identical.

In the first week of April 2017, Ms McKibbin again visited Ken and Irene at Harbison Care. Irene mentioned “people came and made us sign papers. I thought I was going home.”

Whilst it is not likely that either Ken or Irene would have mentioned having made a will, had each understood what he, and she had signed, it could not have been rationally understood that what had been signed were “some papers so I can go home”.

From about May 2017 onwards, Irene made many comments about Cathie looking after her and Ken and being compensated for her help.

Ms McKibbin and John were present with Ken and Irene when Ken died.

It was put to Ms McKibbin that the conversation about wishing to return home and being sick of doctors, nurses and the hospital, was a rational one, which she accepted was so. However, importantly, whilst the feelings expressed might have been rational, the conversation reveals a complete lack of insight, by Irene, into her own medical condition and the difficulties that she would be likely to face living at home.

When Ms McKibbin was asked about the last occasion she had spoken to either Steve of Cathie, before giving her evidence, she said that it had been about two years before the hearing, and that her affidavit had been prepared by their solicitor - instructions for it being given over the telephone. She also confirmed that whilst she remained friendly with John Curcuruto, she was no longer in any relationship with him.

I found Ms McKibbin to be a witness of truth whose evidence I accept. She was responsive to questions asked of her and did not attempt to exaggerate what she said, saw and heard. She did not demonstrate any bias in favour of one side or the other. Her answers in cross-examination did not assist the case of Karen and Jeffrey.

I next turn to the evidence of Judith-Ann Owens. Ms Owens had known Ken and Irene from her childhood. Her father, Kevin Owens, had worked for them as a salesman in their furniture store from the time Ms Owens was born until she was 7 years of age. She was also a family friend of Steve and Cathie.

After her father stopped working for them, he remained a close friend of Ken and Irene. Ms Owens remembered her parents receiving Christmas cards from Ken and Irene and visiting them once or twice a year after her family moved to Kangaroo Point.

In April 2015, Ms Owens moved from Queensland to Sanctuary Point (about 90 minutes from Moss Vale) to care for her father after he was diagnosed with cancer. She lived there until about January 2019. She recalled hearing her father speak on the telephone with Ken about once a month.

At Christmastime 2016, Steve and Cathie visited Ms Owens and her father. During this visit, Ken and Irene were discussed and all expressed concern about them.

In January of February 2017, Mr Owens had telephoned Ken and Irene multiple times without answer. He then telephoned Steve on loudspeaker who informed him that Irene had broken her leg. Ms Owens was present when her father called Ken's brother, John Shepherd, to inform him that Irene was in hospital.

Ms Owens then telephoned the hospital for her father, put the telephone on speaker and heard her father speaking to Irene for around 20 minutes.

Ms Owens took her father to Harbison Care on three occasions before Ken and Irene died. The occasion closest to the making of Ken’s 2017 Will and Irene’s 2017 Will was on 11 March 2017. On this occasion, Ken appeared to recognise her father but Irene mistook Ms Owens for his partner, Yvonne, who had died 9 months previously. This was the first time Ms Owens had seen them for many years.

Ken and Irene said they had not seen Steve and Cathie for a while and Irene stated "We are so lucky to have such good help from Cathy and Steve. We just don't know where they are": Affidavit, Judith-Ann Owens, 8 March 2019 at par 21. Irene repeated, at least three times, "I'm going home in two days”.

Mr and Ms Owens visited again in June 2017. Ken and Irene, initially, did not appear to recognise Ms Owens or her father. Once reminded of who Kevin was, Ken began to cry. On two or three occasions Irene repeated "I want to go home". She also repeated, during this visit, "I'm going home again in two days."

Ms Owens observed that Irene did not seem to follow the conversation, did not respond to statements and questions and would stare into the distance without saying anything. Irene and Kevin spoke about memories of Kevin's time working for them, which Irene appeared to recollect and enjoy.

In re-examination, Ms Owens, without objection, mentioned that on the way home from the visit her father raised concerns about Ken and Irene not keeping up with conversation, their deterioration and how he had to instigate conversations: Tcpt, 10 February 2021, p 420(10-20).

Ms Owens visited Ken and Irene again in late August 2017. Ken was asleep and did not wake at all during the visit. Ms Owens observed that Irene appeared very agitated and uncomfortable in her bed. She was fidgeting, not keeping up with conversation and repeating herself. Ms Owens noted that the only time Irene participated was when they were talking about Mr Owens' time working for her and Ken. Irene also stated that "I'm going home in two days".

I found Ms Owens to be a witness of truth whose evidence I accept. She, also, responded to questions asked of her without prevarication and did not attempt to exaggerate what she said that she saw and heard. Her answers in cross-examination did not assist the case of Karen and Jeffrey.

The next witness to whom I refer is Cathie. In February 2016, Ken fell off a ladder and spent time recovering at Liverpool Hospital. During this period, Irene stayed with Cathie and Steve. On the night Ken was discharged Steve told Cathie “the doctor said that Ken has been advised not to drive for the time being due to his confusion”. Cathie then started taking Ken and Irene to their doctor’s appointments.

Cathie stated that in February 2016, Irene had asked her and Steve to help look after the Goulburn flats. However, she did acknowledge in cross-examination that in February 2016, she understood Irene wanted Ms Dawson and Ms Cabot to manage the Goulburn flats: Tcpt, 18 February 2021, p 831(15-19). Cathie also confirmed receiving an email from Ms Cabot which stated: “We are under instructions only to communicate with Mrs Shepherd in relation to the flats”: Tcpt, 18 February 2021, p 83(21-24).

Despite this, Cathie reached out to Mr Cummins, via email, asking for assistance in regards to obtaining copies of statements and the general management of the Goulburn flats: Tcpt, 18 February 2021, p 831(21-28). Cathie stated that she contacted Mr Cummins because he had handled their appointments to act for Ken and Irene and knew that she and Steve were helping them on other matters at the time. She also acknowledged that although she and Steve’s Powers of Attorney had not been activated at this time, she “understood that since our acceptment [sic] of the appointments, we could help Ken and Irene under their direction”: Tcpt, 18 February 2021, p 831(33-40).

On 14 March 2016, Ken spent a fortnight in hospital for a prostate procedure. Cathie stated that when she visited him in hospital Ken appeared to be “very confused” and was uncertain of why he was there.

It was also during this period that Cathie said she began to notice issues concerning Irene’s personal hygiene including Irene wearing the same dirty clothes for multiple days in a row and having unruly hair.

In late April 2016, Ken was scheduled to see a geriatrician based on advice from his doctor at St Vincent’s Hospital. However, Cathie stated that she had to rearrange the appointment because Irene had cancelled the initial appointment.

Ken was re-admitted to hospital for a follow up procedure in June 2016. During this time Cathie observed that Irene appeared “more confused” asking “Why is Kenny in here, he looks fine to me. Why can’t we take him home?” During a visit to the hospital, Cathie stated that Irene had soiled herself and needed Cathie’s help to clean herself up.

On 16 June 2016, Cathie took Ken to see Dr Barnett. Dr Barnett told Cathie and Ken that “Ken’s reaction times and…memory are not quite good enough to be driving anymore”, to which Ken agreed. However, Cathie stated that in subsequent conversations, Ken was confused as to why he could no longer drive anymore.

Dr Barnett saw Cathie “infrequently” and did not have “lengthy conversations” with her: Tcpt, 10 February 2021, p 429(12-16). According to him, when he had discussed Ken and Irene with her, the only questions that arose were of the nature of “how long will they be in hospital” and “how can we get them into Harbison”: Tcpt, 10 February 2021, p 429(42-43).

On 4 February 2017, Irene had a fall at “Southdowns” and was admitted to hospital the following day and remained there until 23 February 2017. During this period, Ken stayed with Cathie and Steve. Cathie stated that during this period, Ken was confused and frequently stated he wanted to “go back home to Irene now”.

On 7 February 2017, Dr Hartnell, orthopaedic surgeon, told Cathie that Irene could not go home until her leg healed. Hospital staff then recommended a double room at Harbison Care Nursing Home for Ken and Irene. Cathie stated that Irene was initially resistant to the idea of supported accommodation but after further discussion said “[i]t will be good if we (Ken) can be together”.

Cathie also met with financial planner, John Cerniaskus, to investigate and obtain advice, as to how any respite placement for Ken and Irene could be funded.

On 17 February 2017, Cathie recalls receiving a telephone call from the hospital discharge planner to inform her that Dr Barnett had assessed Ken and Irene and considered both to “have lost the capacity for rational judgment and decision making”.

On 21 February 2017, Cathie was present and assisted with an ACAT assessment of Ken and Irene. The assessments found Ken and Irene needed care and each of them to have reduced capacity.

Cathie accepted in cross-examination that until Irene had broken her leg in February 2017, her health was “excellent” (Tcpt, 18 February 2021, p 810(49)-811(02)) and there were no concerns with Irene’s memory impairment at home (Tcpt, 18 February 2021, p 812(06-08)). Cathie also accepted during cross-examination, that Irene could handle money at the time of the assessment: Tcpt, 18 February 2021, p 821(14) - 822(10).

Mr Cummins provided Cathie and Steve with a copy of Dr Barnett’s report. Cathie assumed that from then the Powers of Attorney and Enduring Guardianship were activated for both Ken and Irene.

On 23 February 2017, a room at Harbison Care became available for Ken and Irene and they subsequently moved into the room.

Cathie asked multiple times, prior to Ken and Irene moving into Harbison Care, if she should contact the immediate families to let them know Irene had broken her leg. Both Ken and Irene declined. However, Cathie and Steve decided to contact Karen and Jeffrey because of Irene’s “age and injury”. I have already referred to the nature of this communication.

After Ken and Irene moved into Harbison Care, Cathie noticed that Mrs King would visit more frequently. Cathie expressed her concerns regarding Mrs King to Harbison Care staff. The reasons for this concern were not the subject of detailed evidence.

During multiple visits to Harbison Care in 2017, Cathie saw Irene refuse to co-operate with nurses and express distrust of the staff. Irene expressed a repeated desire to go home and there were several occasions where she was unwilling to let Ken attend medical appointments or to leave Harbison Care without her.

On 14 March 2017, Cathie and Steve met with Mr Cummins. At this meeting, Mr Cummins revealed the contents of Ken and Irene’s 2015 Wills. Cathie stated that this was the first occasion that she came to know that she and Steve were named as executors and beneficiaries in each of the 2015 Wills.

During this meeting, Mr Cummins advised Cathie and Steve to visit the bank on Ken’s and Irene’s behalf to set up a trust to ensure their money was inaccessible to others. Cathie visited the bank and was told a financial management order was required. The bank teller also informed Cathie that Mrs King had been added as a signatory to Irene’s account. Cathie obtained, and signed, a form to remove Mrs King as a signatory.

On 14 March 2017, Steve called Jeffrey in Cathie’s presence. During this conversation Jeffrey and Karen thanked Steve and Cathie for “everything you [sic] have done for [Ken and Irene]”. This was the last time they spoke on the telephone to Karen and Jeffrey until the 30 October 2017, when Cathie called Karen to enquire about attending Irene’s funeral.

On 20 March 2017, Cathie received a call from Harbison Care’s Director of Nursing, Linda Cooke, who informed her that she and Steve’s Powers of Attorney had been revoked and that new Powers of Attorney had been granted. Cathie and Steve then met with Mr Cummins who informed them they should stop any action as attorneys and that he could not advise them further. Later, Mr King came to Cathie and Steve’s home and delivered the papers relating to the revocation of the Powers of Attorney and Appointments of Enduring Guardians.

Later that evening, Cathie sent an email to Karen and Jeffrey expressing her disappointment at the change in arrangements: Ex J3/581. The email contained no reference to Irene and Ken’s lack of capacity to make the aforementioned changes but Cathie gave evidence that this was because “we had already explained that to [Brian and Jeffrey]” and “we were so shocked at the turn of events and that’s how I expressed what we were feeling”: Tcpt, 18 February 2021, p 839(02-17).

Shortly thereafter, Cathie contacted a solicitor, Rohan McAlpine, who helped her and Steve lodge an application to NCAT.

On 2 April 2017, Cathie and Steve visited Ken and Irene. Cathie asked Irene about the new solicitor and attorneys to which Irene replied “We didn’t sign any papers! What new solicitor? What rot”.

Cathie stated that on multiple visits in April 2017, Irene expressed words to the effect “Help us out of this mess. I don’t know what papers we have signed”, “I am very angry with Brian and Jeffrey and Tracie and Damien [sic]” and “I do not want them at ‘Southdowns’”.

Cathie stated in cross-examination that throughout April, she had conversations with Ken and Irene that were “in isolation, rational, but they occurred multiple times per visit, and on each occasion we visited: Tcpt, 18 February 2021, p 839(25-29).

On 1 May 2017, Cathie, Steve and Ken attended the NCAT Hearing.

On 13 May 2017, Irene called Cathie and asked Steve to visit as Ken was not feeling well. After the visit, Steve told her that “Ken and Irene are scared” and Irene “went off about Ken’s family, saying they’d been in there today, uninvited, and really upset”.

On 14 May 2017, Cathie asked Ken who had visited him the previous day and he stated “I don’t know any of them, they are strangers to me, but they said they were my relations so they must be”.

On 23 May 2017, when visiting Ken and Irene, Cathie stated that Irene wanted to know when the Tribunal Hearing was scheduled for and asked Cathie and Steve to “fight all the way for us, you know us and what we want, we need help”.

Of course, in coming to conclusions about Cathie’s veracity, I remember that she has a significant interest in the result of the proceedings. I note, however, that there is no evidence at all establishing, or going close to establishing, that she did not act in the best interests of Ken and Irene. In this regard, all of the evidence speaks with one voice, that Ken and Irene could not return to “Southdowns” and that they needed medical and other assistance. Overall, I am satisfied that Cathie did her best to tell the truth. I accept her evidence.

It is unnecessary to repeat Steve’s evidence going to Ken’s admission to St Vincent’s Hospital and the surrounding events. He corroborates Cathie’s evidence. It is also unnecessary to repeat what he wrote about Irene and Ken’s admission to Harbison Care, as once again, he corroborated Cathie’s evidence about those events. I accept his evidence on these topics.

In cross-examination Steve stated that on 27 February 2016, he met with Cathie, Ken, Irene, Ms Cabot and Ms Dawson at the Goulburn flats: Tcpt, 17 February 2021, p 763(40-49). Steve recalled saying to Cathie, Ms Cabot and Ms Dawson that the flat had some damage, which he then repeated to Irene: Tcpt, 17 February 2021, p 764(10-32). Irene then asked Steve to complete the work and he agreed: Tcpt, 17 February 2021, p 765(22-25). In cross-examination, Steve denied making the statements in Ms Dawson’s evidence: Tcpt 17 February 2021, p 764(38-44), p 765(36-37).

In his affidavit sworn 27 February 2019, Steve gave evidence about a similar interaction at the Goulburn flats in May 2016, where he inspected unit 3 with the agent and found that the bathroom was leaking. During the inspection, Irene had remained in the car. After inspecting the flat, Steve stated that he had discussed the work that needed to be done with Irene who asked him to then organise the repairs, which he did. It is unclear whether the events described on the 27 February 2016 and May 2016 are the same events.

Steve stated that from around spring 2015 onwards, he noticed Ken frequently repeated himself, spent a lot of time looking for things, and was often forgetful. On 16 February 2016, Ken fell off a ladder. After the fall, Steve observed that Ken spoke more slowly, was more frequently repetitive and more frequently forgetful. He corroborated Cathie’s evidence that in 2016, after Ken was admitted to St Vincent’s, he was frequently confused and uncertain as to why he was there.

After Ken’s first admission to St Vincent’s, Steve also observed changes in Irene’s behaviour. He stated that up until Irene was admitted to hospital, she would call Steve, once or twice a month, to say Ken had gone missing, when he was merely outside or in the bathroom. Steve stated in cross-examination that in late January 2017 he did not believe Irene’s mental capacity was good or that she was capable of paying her bills: Tcpt, 17 February 2021, p 742(48)-743(10).

Steve was asked about an invoice and accompanying explanation he provided to Irene on 30 January 2017, relating to work he had recently completed on “Southdowns”. Steve accepted he saw Irene draw a cheque for the full sum of the invoice and sign it. He also said in cross-examination that Irene “wouldn’t be able to understand” the invoice. When asked why he gave Irene the invoice he stated “so she could see…what I’d done” (Tcpt, 17 February 2017, p 746(34-36)) and “it’s common practice to give…an invoice to a client”: Tcpt, 17 February 2021, p 746(47-50).

On 17 February 2017, Cathie informed Steve that Mrs King had taken Ken to the bank to withdraw cash. Cathie asked Steve to get the money back from Mrs King when he visited Irene at the hospital. During this visit, Steve said Mrs King handed him the money and bank statements and said “You can have it. I don’t want to get involved…this is too complicated and Ken’s got it in his head that you are having an affair with Irene!”

In cross-examination, Steve stated that at the time of the conversation with Mrs King he thought the Powers of Attorney had been activated (although a letter dated 15 February 2017 from Mr Cummins stated otherwise. It is unclear whether Steve had seen the letter): Tcpt, 17 February 2021, p 790(47-49).

After Ken and Irene moved to Harbison Care on 23 February 2017, Steve observed Ken and Irene to be much happier as they were together.

In February 2017, Cathie and Steve met with Mr Cummins who informed them the Powers of Attorney and Guardianship documents had become active and that they might like to contact a financial advisor for advice. At this meeting, Steve became aware that he was a beneficiary under Ken’s and Irene’s 2015 Wills. It is unclear if this is the same event as the 14 March 2017 meeting referenced in Cathie’s evidence, but it is likely to have been. (I do not think anything turns on Steve providing an earlier date.)

In early 2017, a financial strategy report was prepared by a financial planner, John Cerniauskas, in respect of Ken and Irene’s finances. Steve stated that at this time he believed the Powers of Attorney had been activated but accepted that it would have been important to consult with Ken and Irene about the report. Whilst Steve had no recollection of mentioning the report to Irene and Ken, he said he “was sure Cathy [sic] would have” mentioned it: Tcpt, 17 February 2021, p 751(35-41).

On 14 March 2017, Steve had a 40 minute telephone call with Karen and Jeffrey, explaining what he and Cathie had been doing for Ken and Irene. He stated Karen “had nothing by thanks and compliments for what we had done”. I accept this evidence.

On a visit to Harbison Care in or around mid-March 2017, Ken accused Steve of stealing his, and Irene’s, money and changing the locks at “Southdowns”. Steve replied that he had put one lock on “Southdowns” to secure the property as someone had been inside. Shortly thereafter, Steve and Cathie were made aware their appointments as attorneys and guardians had been revoked.

From April 2017, Cathie and Steve continued to visit Ken and Irene often. Steve stated that he and Cathie explained to Ken and Irene “a little about what had gone on with the revocation of our appointments and the appointments of new attorneys and guardians.” He said Ken did not remember signing the papers or that he had changed solicitors from Mr Cummins. Ken was also confused as to how Karen was involved.

In cross-examination, Steve was unclear about what, if anything he said, to Ken and Irene, specifically in relation to the 2017 Wills. Steve said that he would likely have mentioned to Ken and Irene that they changed their Wills and was “pretty sure” Irene and Ken replied “I don’t remember signing papers”: Tcpt, 17 February 2021, p 773(28-43). Steve denied being aggressive when speaking to Ken and Irene about their 2017 Wills: Tcpt, 17 February 2021, p 774(01-07).

During a visit on 2 April 2017, Steve asked Ken and Irene about the arrangements relating to his cattle at “Southdowns”. Irene stated she was happy for Steve to continue to leave his cattle on the property.

On multiple visits in April 2017, Ken and Irene would ask Steve and Cathie for assistance and both appeared shocked when Steve informed them of the change to their Powers of Attorney and Guardianship documents.

On a visit in late April 2017, Steve asked Ken if he wanted to attend the NCAT Hearing, which he agreed to with Irene’s encouragement.

On 25 April 2017, Steve visited Ken and Irene. In cross-examination he was taken to a behavioural assessment of Irene completed on 25 April 2017 at 8:00 a.m. which stated:

On 1 May 2017, Steve, Cathie and Ken attended the NCAT Hearing. Steve said on the way home “Ken seemed to quickly forget the day”.

On 2 May 2017, Steve attended on Ken and Irene. Ken said to Steve “I’m so pleased to see you. Irene and I really appreciate what you are doing for us.”

On 13 May 2017, Graham, John, Glenn and Lynne Shepherd visited Ken and Irene whilst Steve was present. Steve said that during the visit Irene was “extremely agitated, screaming and shouting at them to ‘leave!’” whilst Ken did not recognise the visitors.

Over various meetings between 17 May 2017 and 22 May 2017, Steve observed Irene refusing to take her medicine; attempt to convince Ken to not take his medicine; not want Ken to be taken to his doctor’s appointment by himself; and express fears of “strangers coming to the room and trying to take us away”.

The Plaintiffs contended that previous beneficiaries were removed from the Wills as they fell out of favour, or ceased their working relationship with Ken and Irene.

They submitted that in any event, the other beneficiaries were not people who would have reasonably expected to be provided for in Ken and Irene’s Wills, or people who Ken or Irene should have given any consideration to, as possessing a right to lay claim on their bounty. As will have been read, a number of them had been beneficiaries in earlier Wills.

In regards to the insane delusion pleading, the Plaintiffs submitted that Mr Cummins’ position on the Harbison Care board, his undisclosed relationship with Cathie’s mother, and his refusal to assist in updating Ken and Irene’s documents, rightly or wrongly, was sufficient to support Ken’s and Irene’s mistaken belief that the Curcurutos, with the assistance of Mr Cummins, had organised their admission to Harbison Care in order to “steal ‘Southdowns’”. I disagree as there was simply no evidence that could reasonably lead Ken or Irene to the conclusion that Steve and Cathie were endeavouring to steal “Southdowns”. Furthermore, the medical evidence clearly established that returning to “Southdowns” was not a viable option.

More importantly, Karen and Jeffrey submitted, as in Bull v Fulton (1942) 66 CLR 295; (1942) HCA 13, that there was no evidence that anyone tried to talk, or reason, Ken and Irene out of these beliefs.

In written submissions Karen and Jeffrey referenced the Court of Appeal’s decision in Battenberg v Phillips [2020] NSWCA 249, in which Emmett AJA had repeated:

Counsel conceded that Ms Blackadder was not experienced in assessing testamentary capacity at the time of drafting but submitted that she had taken steps to ameliorate that position. He referred to what Kunc J had written in the postscript of Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, namely “that it can’t be that only certain classes of solicitors should be the people that assess testamentary capacity”: Tcpt, 18 March 2021, p 862(26-38).

Counsel also submitted that the relatively straightforward nature of Irene’s and Ken’s estate, namely, the land known as “Southdowns”, the Goulburn flats, and the cash on deposit, was sufficiently reflected in the instructions Ken and Irene gave to Ms Blackadder, to demonstrate an understanding of the extent of the property which was to be the subject of the Will. However, it was conceded that if incomplete instructions were given, it was only in relation to some personal effects and not a large part of the estate: Tcpt, 18 March 2021, p 868(40-44). In fact, Ms Blackadder gave the evidence of Ken and Irene saying that they wished to think about “other personal effects in detail and whether we want to leave them to anyone in particular” before the draft Will was signed: Affidavit, Priscilla Michelle Blackadder, 29 October 2018 at par 28.

It was also submitted that Steve and Cathie’s failure to seek a statutory Will to replace the 2017 Wills should weigh upon the Court’s consideration of the validity of the Wills. I do not understand this submission as s 22 of the Act provides that the Court must refuse leave to make an application for an order under s 18 unless the Court is satisfied that the proposed will, alteration or revocation, is, or is reasonably likely to be, one that would have been made by the person if he or she had testamentary capacity.

The Defendant’s principal contention was that based on their relationship and substantial family history with Ken and Irene, it was reasonable for them to have a moral claim on the bounty of each of Ken and of Irene. They highlighted the fact that no complaints were made about other previous beneficiaries including Kevin Owens, the McMullens, or Rodney Keyte. Yet, there was no evidence of Ken or Irene giving consideration to the longstanding testamentary benefits given to each of them and whether they no longer had a claim on his and her bounty.

They also submitted that this failure to consider the beneficiaries who had been named in a number of prior Wills, demonstrated the lack of capacity of Ken and of Irene to recall, or give consideration to, persons who might have had claims on their testamentary bounty.

In oral submissions, senior counsel for the Defendants accepted that no one had tried to talk Ken or Irene out of the mistaken beliefs concerning Cathie and Steve, who, themselves, were unaware of those beliefs being raised by Ken and Irene. In addition, the remaining people who were aware of these mistaken beliefs, namely Mr and Mrs King, and, perhaps, Ms Blackadder, had perpetuated those mistaken beliefs: Tcpt, 18 March 2021, p 890(04-43).

It was also submitted that the involvement of Jeffrey, and, to some extent, Karen (who authorised his actions), in the drafting and execution of each of the 2017 Wills, combined with the fact the Wills were not read to Ken or to Irene, or observed to have been read over by them, raised serious doubts that each knew, and approved of, the content of each of the 2017 Wills. In addition, the evidence given by the attesting witness who was there, was to the effect that Ken signed his 2017 Will because Irene nagged him and she then signed her 2017 Will because he had signed his.

One particular submission made on behalf of the Defendants should be quoted verbatim. They submitted that a finding should be made that:

They went on to submit that in dealing with will-makers in circumstances similar to that of Ken and of Irene, authorities suggest that reading over the Will may not be sufficient proof of knowledge and approval: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [173]; Ashkettle -v- Gwinnett [2013] EWHC 2125 (Ch); Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 [184]-[192]; see also: In the Will of Steward, deceased [1964] VR 179 at 185.

In addition Irene’s Will was not in accordance with her instructions as it dealt with the entirety of her estate when she had only given instructions in relation to “Southdowns” and the Goulburn flats, or in some cases just “Southdowns”. It also gave Jeffrey one half of the estate where she had twice instructed Ms Blackadder that “Everything should be going to Brian”.

Whilst the Defendants accepted in the oral submissions that the evidence is “slightly ambiguous” in this regard, they submitted that on each occasion when presented with the opportunity to sign the Wills giving everything to Karen and Jeffrey, Ken and Irene had rejected that opportunity, in order to think about making other arrangements: Tcpt, 18 March 2021, p 894(38-43).

They also submitted that Ms Blackadder’s affidavits spoke to the issue of Ken and Irene’s “testamentary intentions” rather than testamentary capacity.

Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

Wills can be proved in two ways; being a grant in common form, or a grant in solemn form. A grant, in either form, is a judicial act, and becomes an order of the court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 at 398. In the case of a grant of probate in common form, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the Will proved in solemn form: Jolley v Jarvis [1964] P 262; [1964] 1 All ER 596 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147 at [35].

A grant of probate, or letters of administration, represents both an order of the Court and an instrument of title: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [228]-[233] (Lindsay J).

In broad terms, if the last will of the will-maker is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for.

In the case of a grant in solemn form (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant), the grant of Probate is said to be irrevocable. Or, as was put in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, by Campbell JA, at [7]:

Lindsay J comprehensively dealt with the distinctions and provided an admirable historical analysis of the difference between common form, and solemn form, grants in Estate Kouvakas; Lucas v Konakas. It is not necessary to repeat the conclusions to which he came in that case. However, his Honour added, at [65]:

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory but is derived from the case law. Nor does the Court adhere to the language of testamentary capacity in the case law as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. Furthermore, how the elements would be regarded as having been established, in a given situation, must vary according to the factual circumstances and the challenge mounted to show the lack of testamentary capacity.

Before proceeding further, it is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, Bathurst CJ and Gleeson JA agreeing):

(“Inofficious” in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker’s bounty: Brown v McEnroe (1890) 11 NSWR Eq 134 at 138 (Owen CJ in Eq); McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J)).

The retrospective task of the Court is to assess whether a will is valid; the test for testamentary capacity being understood in the context that it is time, situation, person, and task, specific. That is to say, whether the particular will-maker, suffering from his, or her, particular medical, or mental, conditions, in the particular situation, was able to make the particular will, at the time it was made. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99; [2004] EWCA Civ 1554 at 109.

In Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387; [2005] HKCU 1254, Ribeiro PJ, in the Hong Kong Court of Final Appeal stated at [176]:

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

Attention to the evidential and persuasive burdens may be decisive in a case in which the evidence is in short supply. But, in other circumstances, it is simply a tool to enable the Court to identify, and weigh, the relevant elements within the evidence, the ultimate task being to consider all of the evidence available, and to draw such inferences as the Court can from the totality of that evidence, to conclude whether those propounding the disputed will have discharged the burden of establishing that it represents the testamentary intentions of the will-maker.

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

In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 565, in a passage not always quoted, stated:

At 569-570, Cockburn CJ referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 at 290-291, where Erskine J had delivered the judgment of the Court in the following terms:

Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters. Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect.

This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate. In each regard, memory is important.

As Ward J (as her Honour then was) noted in King v Hudson [2009] NSWSC 1013 at [51]:

White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], wrote:

As was written in Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40] by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory….". Thus, comprehension and appreciation of the calls on a will-maker’s bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he or she, must have the capacity to decide for himself, or herself between competing claims. That means that he, or she, must have the ability to inform himself or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances.

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

Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the Will to show that the will-maker’s mental state did not influence the Will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. However, as Dixon CJ (with Webb and Kitto JJ) wrote in Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67:

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

In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [65]:

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

I should also refer to Bailey v Bailey (1924) 34 CLR 558 at 570-572; [1924] HCA 21, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant:

As I stated in Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [358], the statement of principle in Banks v Goodfellow has been described as “a durable formulation” which “has withstood the test of time”: Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 at [82] and [66]. It has also been described as the “classical exposition”: I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co) at [306]. It is very well settled and has proved sufficiently flexible to take account of developments, in particular developments in medical understanding.

Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566:

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

Kirby P articulated at 295, this principle as follows:

In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263 at [620]-[621], wrote that to have capacity the will-maker must:

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

In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J noted at [49]:

In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.

The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [64], and by White J in D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 133 at [95].

In Frizzo v Frizzo [2011] QCA 308, Muir JA (with whom McMurdo P and White JA agreed) at [53], stated:

In In The Will of Wilson (1897) 23 VLR 197; [1898] VicLawRp 39, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular and ordinary manner”. Dixon J cited these observations with approval in Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.

Vickery J, in Nicholson v Knaggs at [97] deals with the testator’s understanding of the “practical effects” of the will:

These principles were affirmed in Brown v Wade [2010] WASC 367 at [95]-[96].

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

However, whilst that may be a summary of the principle, I prefer to identify the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13–30]:

In Bull v Fulton at 341, Williams J noted:

In Rowe v Sudholz [2019] QSC 306, in which a beneficiary received a large, unexplained increase in pecuniary legacy, Applegarth J wrote at [137]:

Thus, whilst an explanation for a dramatic change in testamentary intention may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.

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

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

In this case, affirmative satisfaction of the testamentary capacity of each of the will-makers at the time the 2017 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.

Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR 3 P&D 64 at 67. It is a question determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo at [66].

As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2) at [65]:

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

Ultimately, determining capacity should be treated as a practical question which does not depend, solely, on medical, or legal, definition. It is also a question of degree to be solved on the facts and circumstances of each case.

Because it was raised, I turn next to the concept of delusions.

Delusions are a hallmark of psychotic disorders, for example in schizophrenia, delusional disorders, psychotic depression, delirium and organic psychosis. Thus, a delusion (in the clinical sense) is not itself a medical disorder, but it will be evidence of one.

There are numerous definitions of delusions. For example, in the fifth edition of the ‘American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders’ (“DSM V”) at p 819, a delusion is defined as:

Karl Jaspers, a well-respected and known German philosopher, in his book General Psychopathology (1963, University of Chicago Press), considered delusions to be characterised by:

Mullen P, in The Phenomenology of Disordered Mental Function Postgraduate Psychiatric Ed. (1979, Hill, Murray & Thorley Academic Press) defined delusion as an abnormal belief which arises from disturbed judgments and which the experience of reality becomes a source of new and false meanings and continued stating that delusions usually have attributed to them the following characteristics:

Nicholas Keks, in The Psychiatry Interview and the Valuation of the Mental State Foundations of Clinical Psychiatry Ed. (1994, Sydney Block & Bruce Singh. Melbourne Press) stated that delusions are false ideas usually of great personal significance held firmly despite all evidence as to the contrary and are inconsistent with a patient’s social cultural background. They have the following characteristics:

Thus, a delusion is an idiosyncratic belief, held firmly by a person, at a particular point in time, and not supported by known facts, and not shared by other members of the person’s cultural and/or religious community. It may be distinguished from an “overvalued idea”, this being a psychiatric expression meaning not a delusion, but an irrational idea. Although irrational, an overvalued idea is “sufficiently attached to the initial worry to be understandable”. Thus, while an overvalued idea may be irrational, the logic is obvious and there is no breach from the shared reality, referring to beliefs shared by other members of the person’s cultural and/or religious community.

A delusional belief is one that involves a clear break from reality (as the concept of reality is understood by the community of which the patient forms part). Mere irrationality, even extreme irrationality, is not delusional if it has some connection with reality: Schultz v Bailey [2007] NSWCA 110. Nor is a mistaken belief a delusion: Du Maurier v Wechsler [2001] NSWSC 4 at [40] (Windeyer J). Thus, the relevant false belief must not be a simple mistake that could be corrected. It must be irrational and fixed in nature.

It has been said that the expression “insane delusion” used in Banks v Goodfellow is arguably tautological, but that the “inclusion of the word ‘insane’ emphasises that a relevant delusion is one indicative of a mental deficiency inconsistent with testamentary capacity, and not simply a false or mistaken belief”: Carr v Homersham at [124] (Macfarlan JA). In the same judgment, Leeming JA, at [130], described the term as “a familiar, if out-moded, expression”.

In Easter v Griffith (1995) 217 ALR 284, as per Gleeson CJ, at 291, the issue was whether a testatrix “ultimately came to suffer from a form of mental disturbance which made it impossible for her to judge [her son] rationally”. Gleeson CJ, at 292, endorsed the premise that “it was unnecessary for [the trial judge] to make a positive finding that the testatrix was suffering from insane delusions in order for the onus of proof of testamentary capacity to fall upon the party propounding the will”.

Gleeson CJ (with whom Handley JA agreed, Kirby P dissenting) discussed Banks v Goodfellow, and observed, at 290-291:

In Tillett v Varnell Holdings Pty Ltd [2009] NSWSC 1040, Brereton J wrote, at [70]:

In Carr v Homersham, at [104] – [113], Macfarlan JA considered various authorities that assisted in identifying delusions that are relevant:

In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J wrote, at [113]-[114]:

Ways to demonstrate the existence of a delusion have recently been considered in Clitheroe, Re Probate [2021] EWHC 1102 (Ch), in which Falk J wrote at [102] – [104]:

Then, if the will-maker is found to be clearly suffering from a delusion, then the critical question will be whether the delusion was relevant to the will that he or she made. As Latham CJ wrote in Bull v Fulton, at 299:

In addition to showing that the deceased had testamentary capacity, Karen and Jeffrey, as the propounders of the 2017 Wills, must also show that each of Ken and Irene knew and approved the contents of his, and her, Will, respectively. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J. However, as Leeming JA indicated in Mekhail v Hana, at [128], even though they are distinct concepts, they are linked and evidence will often be relevant to both issues.

Chadwick LJ in Hoff v Atherton continued:

Lewison J stated in Perrins v Holland [2011] Ch 270 at [31]:

The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519; [1918] HCA 73. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement, reference to authorities. His Honour wrote (at 528):

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

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

I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280, at [47]:

In Theobald on Wills (16th ed, 2001) at [4-049] :

In Brown v Fisher (1890) 63 LT 465 it was said that:

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

Davey LJ, at 159-160 wrote:

These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, In the Estate of Leona Johnson (Deceased) (2015) 122 SASR 190; [2015] SASC 51 at [7].

Viscount Simonds in Wintle v Nye [1959] 1 WLR 284 at [14], as agreed to by other members of the House of Lords, approved the judgment of Parke B in Barry v Butlin, adding:

I have earlier referred to Vernon v Watson; Estate Clarice Isabel Quigley dec’d in which there was full review of case law on the topic by Burchett AJ at [2] – [9]; I shall not repeat what was written in that case.

As the Court of Appeal confirmed in Tobin v Ezekiel, at [47]-[48] (Meagher JA with whom Basten and Campbell JJA agreed):

This was confirmed in Mekhail v Hana; Mekail v Hana at [144]-[145] by Leeming JA.

The Court does not substitute its own judgment for that of the will-maker as to what would be a proper disposition of his or her estate. What must be dispelled is any suspicion that the will-maker did not understand what the Will provided for, that is to say, the will-maker did not know and approve of its contents.

When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including the circumstances surrounding the preparation of the propounded Will; whether a beneficiary was instrumental in the preparation of the propounded Will; the extent of the physical and mental impairment, if any, of the deceased; whether the Will in question constitutes a significant change from a prior Will; and whether the propounded Will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded Will is not a reason for rebutting the presumption arising from the due execution of a Will regular on its face: In re R (dec’d) [1950] 2 All ER 117 at 121.

It has been observed that if a duly executed will has been professionally prepared and then explained to the maker by an independent, and experienced, solicitor, it will be markedly more difficult to challenge its validity on the grounds of lack of capacity than in a case where those prudent procedures have not been followed.

Even though a solicitor may genuinely believe that the testator had testamentary capacity at the time he or she executed the will, that opinion does not displace the Court’s role in deciding whether in fact the testator had testamentary capacity: Rowe v Sunholz at [148]; Ruskey-Fleming v Cook [2013] QSC 142 at [63] and [71].

Because it played a major part in the submissions, it is necessary to say something about the duties of a solicitor who takes instructions for and who has a will executed.

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

In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [89] I referred to Pates v Craig & Anor The Estate of Cole (NSWSC, 28 August 1995, unreported) where Santow J made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be the principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. It is not necessary to repeat what was written.

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

In my view, this is not a case in which the words of Young J in Re Crooks Estate (Supreme Court (NSW), Young J, 14 December 1994, unrep), at 29, apply. In that case, his Honour stated that evidence from a solicitor who has considerable experience, including in dealing with elderly clients and their testamentary wishes, is valuable evidence of testamentary capacity because:

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

However, the Court must also consider whether the particular instance before it “may stand apart from the ordinary [case]”: Drivas v Jakopovic at [54].

In Petrovski v Nasev; The Estate of Janakievska , I also wrote at [89], referring to Pates v Craig & Anor; The Estate of Cole that a solicitor taking instructions where capacity is potentially in doubt has a duty to take particular care to gain reasonable assurance as to the testamentary capacity of the will-maker. In this case, I am not satisfied that particular care was taken.

However, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [192], Santamaria JA, with whom Beach and Kyrou JJA agreed, wrote:

Applegate J, did not go as far as Santamaria JA in Veall v Veall, but preferred to say “if the solicitor’s view as to testamentary capacity was not based on a proper assessment and accurate information, it may be worth very little”: Rowe v Sunholz at [149].

The weight to be given to the solicitor’s evidence will depend on her, or his, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker’s presentation to the solicitor, and whether there are any “red flags” suggesting a possible challenge to capacity. It will also depend on “the level of enquiry and discussion on the part of the lawyer of, and with, the deceased”: Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [51].

In the present case, as I have previously noted, there were a number of red flags including the fact that both Ken and Irene had each recently received medical attention; that medical reports had been provided that raised significant questions about the capacity of each of them; where an independent expert to consider his, and her, capacity had been foreshadowed but was not proceeded with; that neither Ken nor Irene was an existing client of the firm at which Ms Blackadder was employed; that at least some instructions were being provided by one or both of the sole substitute beneficiaries; and where each of Ken and Irene was making a significant change to his, or her, will in appointing Jeffrey, who had never been a beneficiary, as a beneficiary in circumstances where the contents of the earlier Wills had not been considered in any material way.

It is difficult to accept that Ms Blackadder sufficiently considered these red flags.

Because it is relevant to the issues in this case, I also refer to Key v Key [2010] WLR 2020; [2010] EWHC 408, in which there was a reference to what has been described, in the United Kingdom, as “the golden rule”, namely, that in “the case of an aged testator or a testatrix who has suffered a serious illness there is one golden rule which should always be observed ….the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator…”.

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

What is written below should be read as a continuation of what has been written above. In addition, I have had regard to all of the factual, and other, matters, so far as they are relevant, in my conclusions set out below. Merely because specific reference has not been made to facts previously identified, should not lead to the conclusion that they have not been fully considered.

In arriving at a conclusion in each of the proceedings, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:

It is understandable that one party, or the other, might feel disappointed, upset and resentful that they have not benefited from either Will. But it is not the task of the Court to decide whether the Wills were justified or fair. The Court is only required to decide which is the last valid Will of Ken and of Irene and which Will should be admitted to probate.

Having carried out the holistic assessment of the evidence, I am satisfied that Karen and Jeffrey have not satisfactorily shown that each of Ken and Irene had testamentary capacity at the time the 2017 Will was executed. Taking into account all of the evidence in the case, including, naturally, the evidence of Ms Blackadder, I am not satisfied that, in relation to the 2017 Will of each of Ken and Irene, that it is the Will of a capable will-maker. The cognitive deficiencies of each were largely detectable and had been detected. I am left with a significant residual doubt and accordingly I am unable to be satisfied that each 2017 Will is a valid Will. The doubt has not been overcome by the evidence of Karen and Jeffrey and their witnesses.

Whilst it is not necessary to do so, bearing in mind my finding on capacity, I am also not satisfied that each of Ken and Irene knew and approved the contents of his, and her, Will respectively. Adopting the approach that the Court should be vigilant and jealous in examining the evidence, I cannot be satisfied that each of Ken and Irene knew and approved the contents of his and her 2017 Will, respectively. The involvement of Karen and/or Jeffrey raises a significant suspicious circumstance, particularly when Jeffrey was not a substitute beneficiary named in any other Will of either Ken or Irene.

Karen and Jeffrey have not persuaded me that each of Ken and Irene knew and approved the content of his and her 2017 Will.

In the circumstances, it is unnecessary to determine whether each of Ken and Irene suffered from any delusion.

I am unable to grant the relief sought by the Plaintiffs. I dismiss their claims. There is no dispute about the validity of the 2015 Will of each of Ken and of Irene. There should be a grant of Probate, in solemn form of each of those Wills.

I shall hear the parties in relation to costs and upon publishing these reasons shall allow them an opportunity to agree upon that question. If they are unable to, directions will be made as to the determination of that issue.

In the meantime, in proceedings 2018/117875, the Court:

In the meantime, in proceedings 2018/122543, the Court: